Int, J. Middle Bast Stud. 31 (1999), 429-444. Printed in the United States of America Najwa Al-Qattan DHIMMIS IN THE MUSLIM COURT: LEGAL AUTONOMY AND RELIGIOUS DISCRIMINATION All that happened is written in the sicil, and is kept for many many days, and every ‘man can seek justice on the basis of what had been written. —Rabbi David ben abi Zimra (Radbaz)! This article will examine the legal status of dhimmis (non-Muslims) as documented in the sijills of the sharia courts of Ottoman Damascus in the 18th and 19th centu- ties, It will focus on two related aspects of dhimmi legal life: the extent of the judi- cial autonomy granted to non-Muslims and the kind of justice that dhimmis obtained at the Muslim court Conceived as an Ottoman-Muslim variation on a classic institutional arrangement of empire, judicial autonomy as conceptualized by the historiography refers to the administrative policy according to which dhimmis had the right to litigate most of their legal affairs in officially recognized and communally organized and operated dhimmi courts as long as their cases did not cross religious boundaries, involve cap- ital crimes, or threaten public order and security. Theoretically speaking, then, the Jews and Christians of Damascus had no obligation, and certainly no need, to attend to most of their legal business at the Muslim court (mahkama), An examination of “dhimmi” court cases extracted from one hundred sijill volumes covering the years 1775 to 1860 reveals that members of the Jewish and Christian communities in Damascus made their appearance regularly at the mahkama. They appeared as litigants, witnesses, guardians, agents, buyers, sellers, and neighbors. Their appearance was neither unique to Damascus—it has been documented for vir- tually all Ottoman cities—nor always in need of explanation.’ In addition to the cases in which their appearance at court was obligatory (the aforementioned cases of inter- communal nature, of capital crimes, or those impinging on public order), dhimmi in- dividuals voluntarily appeared at court for the purpose of recording their property and commercial transactions. This behavior is not surprising in light of the fact that the sharia court also functioned as a public record office, a depository for all kinds of official and notarized agreements. Moreover, the mahkama was the only official court with the authority of enforcement; hence, it promised prospects of uncontested registration and sanctioned resolutions. However, in addition to instances in which Najwa Al-Qattan is Assistant Professor, Department of History, Loyola Marymount University, Los Angeles, Calif. 90045, USA. © 1999 Cambridge University Press 0020-7438/99 $9.50430 Najwa Al-Qattan their appearance at court was either obligatory or necessitated by the need to register financial deeds and transactions, the dhimmis of Damascus regularly came to court to litigate intra-communal cases, the vast majority of which involved marriage, divorce, child custody, and inheritance.’ In view of the assumptions regarding government- sanctioned and empire-wide legal autonomy and the Islamic coloration of the courts, the extent and nature of dhimmi recourse to the sharia courts of Damascus raise serious questions regarding the almost axiomatic notion that dhimmt legal status in Ottoman times was universally defined by the twin principles of separation (judicial autonomy) and inequality (legally sanctioned discrimination). Noting the frequency with which Ottoman Jews and Christians voluntarily chose to attend to their personal (as opposed to business) affairs at the Muslim court and their willingness to avoid or override the rulings of their own communal courts, scholars of dhimmi communities have suggested several explanations. Aryeh Shmuelevitz, for example, argues that in the 16th century, Ottoman Jewish judges were liable to be sus- pended from office for prohibiting Jewish men and women from seeking the shari°a courts. He nevertheless posits an extensive Ottoman-sanctioned legal autonomy for the empire’s separate Jewish congregations by claiming that Jewish judges fulfilled the demands of Jewish law (halakha) forbidding recourse to Muslim courts (even when the shari“a courts did not contravene Jewish law) by issuing their legal judgments and prohibitions against the malkama in secret. Although in part hampered by a natural resistance on the part of historians to re- vise long-received notions, the questioning of the nature and extent of legal auton- omy has been also exacerbated by several factors. First, it is assumed that communal self-regulation (involving matters of religious and ritualistic nature, moral order, and institutions of self-help) must necessarily have involved legal autonomy. The Jewish and Christian communities of Ottoman cities no doubt had access to churches and synagogues where organized religious practice took place and where congregation members benefited from the spiritual and schol- arly guidance of rabbis and priests. However, there is no evidence to suggest that these and other religious leaders always functioned as judges who presided over official courts created for communal litigation across the empire.” Although it remains possible that the twin religious and legal functions of the Mus- Jim qadi in Ottoman times may have contributed to the aforementioned misapprehen- sion, mention must also be made of the tendency among historians to resort to Jewish and Christian doctrinal beliefs as evidence against the possibility that the dhimmits vol- untarily sought the Muslim courts—which those same historians are apt to describe as corrupt and discriminatory—in litigating issues of personal life, even as these same scholars acknowledge the frequency with which this took place. Joseph Hacker's thor- ough study places this quandary at the center of the issue, and he acknowledges that he is unable to “provide an answer to the Jewish habit of turning to the kadi in matters of personal status. An equally prominent issue in the literature is the extent to which the relevant dhimmi authorities sought to contain or ban recourse to the Muslim court. In this re- gard, the failure of parochial leadership to exert its legal prerogatives is viewed as a function of Ottoman counter-regulations, Ottoman equivocation, or weak commu- nal organization.”Dhimmis in the Muslim Court 431 In addition, the quest for a centralized and consistent Ottoman policy regarding dhimmi communities tends to disregard the differences between Christian and Jewish “autonomies” and their evolution over time." These distinctions have been noted in specialized studies and should cast further doubt on dhimmi judicial autonomy as an unchanging and perpetual Ottoman institution." Finally, the discussion of legal and communal autonomy has been obfuscated by the controversy over the millet system. According to traditional Ottoman historiog- raphy, the millet system made up the basic organizational framework around which the relationship between Istanbul and the empire’s dhimmt populations was ordered and rationalized. Initiated by the Ottomans shortly after the conquest of Constanti- nople, the system classified the empire's dhhimmis into Jewish, Armenian, and Ortho- dox millets that were presided over by the appropriate religious authorities appointed by Istanbul to oversee the empire-wide affairs of the three communities. Thus con- ceived, the millet system assumed a large measure of communal and legal autonomy for the communities and a way of facilitating rule over a multi-religious empire by its Muslim government. This view is no longer accepted, and it is now the consensus that the millet system was essentially a latter-day Ottoman institution that had been retrospectively cast into the past in the form of “foundation myths.”!? However, it must be noted that the discussion that casts the millet as a latter-day organizational system and questions ts earlier official and empire-wide application, questions not judicial autonomy as such, but the administration of dhimmi communities directly from Istanbul. While the millet has been disbanded as a working concept, the notion of legal autonomy has been retained." In summary, the historiography dealing with the question of judicial autonomy faces the following quandary: if communal courts were widely available and officially sanctioned, why did considerable numbers of Ottoman Jews and Christians flout the dictates of their religion and the orders of their spiritual leaders in litigating personal matters in Muslim courts that were perceived by the dhimmis themselves as corrupt and discriminating? Furthermore, can communal courts, described by Hacker and others as clandestine institutions bereft of official Ottoman recognition whose officials and sentences were subject to Ottoman whim, be regarded as institutions of legal autonomy? Shmuelevitz, for example, writes that Jews customarily went to the Muslim court for marriage and divorce purposes, where the qadi usually sent them back to their own courts with orders that the Jewish judge (dayyan) comply with the gadi’s judgment. He fails to reconcile this extraordinary behavior with the notion of full-fledged legal autonomy that he espouses. Amnon Cohen, for his part, cites cases in which the rabbis themselves went to the Muslim court, as well as the frequency with which Jews sought divorce at the mahkama. He recognizes that “Jewish legal bodies had no means of punishing or enforcing sentences beyond the moral authority of the Rabbinical court or the threat of excommunication and banning.” Although the notion of dhimmi communal autonomy (and the related institution of dhimmi courts) seems to have enjoyed axiomatic acceptance among historians fo- cusing on the Christians and Jews of the Ottoman Empire, the issue has yet to receive the serious empirical attention it deserves. This is not to say that the issue has never been raised; indeed, it has, but in the form of footnotes and passing remarks. Ronald432. Najwa Al-Qattan Jennings, for example, remarks on the frequency with which the dhimmis in 17th- century Kayseri went to the Muslim court to resolve family matters and on the fact that dhimmt courts are never mentioned in the sijill. He concludes that this leads the historian to “suppose that [dhimmis] had no internal judicial apparatus of their own, or at least a very weak one.” Likewise, Suraiya Faroghi notes that 17th-century doc- uments from the courts of Ankara (as well as Kayseri) never mention communal courts and wonders why large numbers of dhimmis readily went to the Muslim court.'5 Evidence for the existence of full-fledged communal courts appears to be anec dotal and sporadic. In fact, the lack of extant records pertaining to dhimmi commu- nal courts has been noted even by those historians who subscribe to dhimmi judicial autonomy: speaking of the 16th and 17th centuries, for example, Hacker acknowl- edges that “the vast majority of Jewish court records bearing the rulings, the testi- mony, and the documentation have been lost, and to all intents and purposes there exists today not a single series of Jewish court records.” Similarly, Abraham Marcus notes of 18th-century Aleppo that “the various restricted courts left [no] record of their modes of adjudication or their work load.”!® Nevertheless, no one has ad- dressed the significance of these “losses” or has seriously pondered them in light of the fact that sijill-based evidence for the existence of fully autonomous communal courts has yet to be found. Finally, the responsa literature on which Shmuelevitz bases his argument for legal autonomy is problematic and restricted to one century.” In other words, extant evidence is at best restricted to short periods of time during which full-fledged legal autonomy was compromised by its very practitioners. The extent and nature of dhimmi cases litigated at the Damascus courts, the silence of these courts regarding their communal counterparts, and the dearth of dhimmi court documentation raise a number of related questions: first, why did Christian and Jew- ish men and women choose to go to the sharia court? Second, what transpired when they did so? Third, what does their behavior tell us about dhimi judicial autonomy in that city? Finally, what conclusions are we to draw about the sharia court? The Jews and Christians of Damascus frequented the Muslim court in order to re- solve intra-communal disputes—in theory under the jurisdiction of communally op- erated courts—and did so with the avowed intention of seeking the auspices of sharia law. Furthermore, and contrary to the commonly voiced notion that dhimmis in Muslim societies jealously guarded their judicial autonomy and avoided airing communal disputes in Muslim arenas, the Damascus sijil/ documents a large number of cases in which dhimmis litigated at the Muslim court not only against other dhimmi individuals but also against members of their own families. This behavior attests both to the significance of the court in the everyday life of dhimmi individu- als and to the legal attitudes involved.'* Lawsuits over trade and other kinds of property disputes were filed between dhimumt relatives and associates, such as the suit instigated by the Jewish merchant Musa w. Khadr, against his brother in a dispute concerning trade expenses incurred in the city of Izmir. In a similar case, a Christian woman took her father-in-law to court in order to secure the reimbursement of a loan he had obtained from his deceased son, the plaintiff’s husband. Along those lines, and in cases that belie assumptions concerning familial and communal insularity vis-a-vis the Muslim court, were lawsuits between dhimmi parents and their adult offspring: the case of Mariam bt. Antun al-Ashshi whoDhimmis in the Muslim Court 433 sought the Muslim court’s aid in evicting her mother from the house she owned de- spite her mother's anguished claim that her daughter had promised her lifelong shel- ter, and the case of Mariam bt. Ibrahim w. Yusuf al-Ma‘asiri, who successfully accused her own father of stealing a set of gold bracelets and five golden liras."9 Historians have presented a variety of practical considerations to explain the pre- ponderance of intra-communal dhimmi recourse to the Muslim courts.” In general, the greater efficiency and better enforceability of sharia court rulings are men- tioned. More interesting are explanations based on the preference of dhimmi litigants whose perceived personal and financial interests were better served by sharia law. For example, in his study of legal life in the Ottoman Balkans, N. J. Pantazopoulos claims that Christian subjects were attracted to shari‘a laws of inheritance on ac- count of the (Orthodox) institution of trimoiria (tripartition), which, unlike sharia law, excludes the surviving parent of a deceased child, He also cites the preference of women for Muslim dowry rules over the institution of trachoma, “the donation (especially) in money, given on the part of the woman to the man in sight of matri- mony, which remains in the ownership of the man and is not returned in the case of annulment of the marriage.”*! In Ottoman Egypt, Copts as well as other minorities sought the auspices of the sharia court. Marriages concluded in the court were, as a consequence, dissolvable therein, and Coptic women also appear to have benefited from the practice—widespread among Muslim women in Egypt—of adding protect- ing clauses to their marriage contracts (clauses dealing with the rights of children from previous marriages, material support, etc.).” A similar perception appears to have attracted Jews to the Muslim court. This is particularly interesting insofar as it seems to have appealed primarily to women who, for example, used the sharia courts in order to obtain a share of their patrimony, denied them in Jewish law. Jew- ish women also appear to have sought shari°a marriages, which guaranteed material support (nafaqa) as well as divorce, especially when attempting to annul marriages made insupportable by deserting husbands.> The dhimmis of Damascus went to the shariSa court in order to register and nota- tize a wide variety of financial deals, ranging from loans and debts to real-estate transactions. In other words, their behavior was based on the correct perception of the court as the registry and depository of all official documentation. In addition, by availing themselves of the courts in pursuit of personal interests, they demonstrated an impressive knowledge of Islamic legal practice, an acceptance of shared cultural— legal norms, and a pragmatic outlook on marital and familial issues ‘A look at dhimmi marriage and divorce cases sheds interesting light on the recip- rocal perception of the shari°a courts and the dhimmis. Among the cases involving matrimony, a representative case featured Hanna w. Ni‘ma al-Halabi and Warda bt. Abraham w. ‘Abdallah, whose marriage was validated at the mahkama, where the terms of the prompt dower (mugaddam) of 15 quriish and the deferred dower (mu"a- khkhar) of 7.5 quriish were specified. Another instance involved Musa w. Ilyas Bahlaq al-Himsi, a Christian who had gone to court in order to both notarize a dower (sada@q) agreement and finalize his marriage to Mariam bt. Ilyas al-Qasir, described as “the Christian woman who is eligible to be married according to the sharia (al- mara al-nasraniyya al-khdliya min al-mawani° al-shar“iyya).2* The consideration of eligibility was especially important in cases where the woman had been widowed or434 Najwa Al-Qattan divorced. For example, Warda bt. Antun Shabab had been widowed for four years when she went to court to be party to her own sadaq agreement with a Christian man, and where Christian witnesses submitted testimony as to her marital eligibility in accordance with sharia law. Several reasons can be suggested to explain what at first sight appears to be the extraordinary behavior of dhimmis who allowed themselves to be married according to sharia law. First, the contractual nature of the marriage agreement clearly docu- mented and registered all the financial obligations involved. This not only enabled the parties to be eligible for Muslim divorce later on, but also offered women the benefit of Muslim nafaga and dower rules as well as welcome legal protection for all the subsidiary agreements involved. Dhimmi men and women went to court in connection with divorce. In some cases, the issues at stake were purely financial; they related to child support or the settle- ment of old debts. But the more telling cases, most of which naturally also involved matters of money, were those in which the parties sought and obtained divorce be- fore the qadi at the Muslim court.2* One such case involved Khalil w. Hlyas al-Ba‘li and his wife Barbara bt. Khalil al-Himsi. The document described the divorce as “a single divorce (¢alagan wahidan) and included a clause according to which the wife could not “return to him” unless and until the two conclude a new marriage contract according to Muslim law “agdan jadidan bil-shurat al-muhammadiyya).? In an- other case, worth noting because the parties were Jewish, Samha bt. Nassim al-Lah- ham went to the Muslim court in order to ask “Ubaid w. Yusuf al-Qudsi to divorce her. The husband duly divorced her triply all at once (bi’/-falgat al-thalath duf“atan wahida) and paid her a muakhkhar of 100 quritsh and half a raj! of silver.2* While some of the cases concerned divorce indirectly in so far as they consisted of legal acts in which divorce was testified to and authenticated in court, other sijill cases consist of lawsuits in which women took their husbands to court in order to obtain divorce. None of these cases appear to have been litigious: the women bought themselves out of their marriages, and the husbands complied. Such sociological phenomena are very suggestive, but they remain of secondary importance to the fact that Christian women went to the Muslim court in order to ask their husbands for di- vorce. For example, in 1781 Mariam bt. Fransis w. Antun went to the Muslim court in order to terminate her marriage to Yusuf w. Musa al-Qasramli, In a motion that appears to have been common in khul® divorce, as this wife-initiated divorce for money is called, she also submitted to the court that she voluntarily released him from material support (nafaqa) as well as from his debts. He, in turn, agreed to pay child support for their infant son in the amount of 140 qurash for seven years.” A more detailed divorce document involved a Jewish woman, Rifka bt. Yusuf Ibra- him al-Trabulsi who sought divorce from her husband, Nassim w. Aslan al-Hasbani. When he granted her request, she, in the words of the document, banat min Sismatihi wa-malakat nafsaha fala ta‘ad ilayhi illa bi-‘aqdin jadidin bi-shuritt shar was divorced from him, became her own legal person, and may not return to him except through a new contract drawn according to the sharia). On rare occasions, a dhimmi woman went to court to obtain a faskh divorce (an- nulment).*! This was the case of Rahma bt. Shihada, who went to court with two Muslim men who presented her case regarding her marriage to Arutin w. “Abdallah al-Rumi. The latter had, shortly after marrying and living with her a year and fiveDhimmis in the Muslim Court 435 months before her court appearance, left town and abandoned her without material support. After taking an oath as to the veracity of her claims, she requested divorce, which the qadi, who first advised patience, granted her. The frequency and ease with which Jewish and Christian men and women went to the Muslim court in connection with marriage and divorce suggests, on the one hand, that such recourse was neither unusual nor fraught with communally burdensome consequences. It also illustrates the ways in which Christian and Jewish women availed themselves of the wife-instigated kinds of divorce not available to them ac- cording to the rules of their respective faiths. However, since the registered cases did not cover all the instances of marriage and divorce that must have taken place among the dhimmis, one is left to speculate that, in tandem with Muslim practice, many such marriages simply went unregistered. Many of the dhimmi disputes that made it to court were between members of the same dhimmt families and typically involved differences over inheritance. Such was the case of Makhkhul w. Yaqut Farika, a Jewish man who sued Harun w. Khadr al- Sabban, his half-brother, because the division of their maternal inheritance had not been executed according to Muslim law (‘ala al-farida al-shar“iyya).®* Another case involved Mariam bt. Yahya al-Shaghuri, who took her brother-in-law to court in a dispute over inheritance. Her dispute centered on the claim that her two children did not receive their legal share of their deceased father’s legacy because the defendant had ignored the sharia rules governing the gendered division of the patrimony.“ Another case that explicitly invoked shari‘a laws of inheritance took place in May 1783 when the Muslim court looked into the lawsuit instigated by Ghazala Aslan, a Jewish woman, against her two nephews by marriage. According to Ghazala, the men had forced her to release into their possession part of her deceased son's estate by misrepresenting shari‘a law. Her claim against them rested on the sharia rules of inheritance—or, rather, on her subsequent awareness of them—rules that she retro- spectively sought to have implemented, The fact that this particular dhimmz plaintiff won her case is of interest. More significant, however, was her argument, which, rather than quarreling with the notion that shari‘a law applied to her and her Jewish relatives, contested the nephews’ inheritance rights by invoking the correct applica- tion of Muslim law.’ Evidence for the centrality of sharia law in the inheritance arrangements of dhimmi individuals also appears in the form of notarized agreements submitted by men and women who went to court in apparent attempts to forestall future disputes over property. Some, but not all, of these cases were registered with the qassam courts (dividers of inheritance). Further evidence for the same phenomenon takes the form of descriptions of inherited property as it appeared in purchase and rental court documents: the property changing hands was in such cases rendered as “acquired through shari‘a-sanctioned inheritance." There appear to be two possible explanations for extensive mahkama involvement in dhimmi inheritance cases. While evidence from Syrian and other Ottoman cities indicates that the courts were routinely involved in dividing and litigating dhimmi inheritance cases, suggesting that the courts were following official Ottoman Hanafi doctrine that made this compulsory, the wording of documents such as those already cited clearly indicates that dhimmis voluntarily sought the shari‘a courts, especially when their financial arrangements were better served.”436 Najwa Al-Qattan The documentation of dhimmi inheritance disputes at court is a valuable indicator both of the implementation of sharia law in dhimmt affairs and of the willingness of dhimmt individuals to involve the Muslim court in the arbitration of familial conflicts. But struggles over legacies were not the only reasons for the involvement of the mahkama in dhimmi litigation, familial or otherwise. Whereas the majority of lawsuits documented in the Damascus sijill involved intra-communal litigation, dhimmi men and women often sought the sharia court’s aid in redressing the per- ceived or actual illegal activities of their fellow Muslims in that city, Such inter- communal cases add much to our understanding of what happened to dhimmis at court, the second question under consideration. There is ample evidence to suggest that the Muslim courts were guided by a lev- eling practice of sharia law that disregarded the social status, place of residence, gender, and religious affiliation of its clients. Although the strict formulaic organi- zation of the sijill precludes knowledge of, for example, out-of-court negotiations that may have preceded the recorded legal event, and of the execution of judgments pronounced therein, the material in the sifill indicates that the court was not the arena for the practice of extra-legal or illegal discrimination, despite the shari“a’s theo- retical discrimination, for example, against dhimmis and women. Furthermore, the court often provided weaker individuals with legal protection against those who were tempted to use religion, gender, or ignorance of the law to reap undue advantage.** It was this perception of the court that made possible the case instigated in 1779 by three Christian women against Ibrahim b, “Abd al-Qadir b. Ibrahim Wurayda. The ‘women went to court in order to lodge an accusation of fraud against the Muslim de- fendant, who had been the business partner of their father and husband, respectively, shortly before his recent death. As heirs, they were entitled to a share in the copper- trading business that the men had established between Damascus and Diyarbakr. In response, the defendant offered a long-winded story, in spite of which he lost the case when the Christian women’s allegations were supported by two Muslim witnesses. In a similar case twenty-seven years later, a Jewish man—Haim w. Musa al-Halabi— sued a Muslim man for the amount of 560 quritsh that he claimed the defendant owed his now-deceased father from a trade partnership. Despite the plaintiff’s denials, Haim won the case on the evidence presented by several Muslim men.” Although the triumph of sharia procedure in court may have secured consistent and fair treatment for the dhimmis, it did not necessarily always secure their wishes. Hence, when a Muslim man sued a Christian woman over a debt owed to him from her deceased husband, her denial of the matter was belied thanks to the testimony of two Christian witnesses. In addition, the implementation of justice occasionally went beyond the mechanic and ritualistic application of the rules of evidence and involved acts of tolerant compromise. Illustrative of this is the case of “Abd al-Razzaq b. ‘Ali al-Baghdadi, who claimed in court that Hanna w. ‘Ubaid al-‘Abd, a Christian man, owed him 95 quriish for the price of a horse purchased four years earlier. In response, Hanna simply stated that he had already paid. The document summarizing the case indicates that the two men then proceeded to argue for a long time, without either submitting legal evidence in support of his claim. The case was resolved when the gadi suggested, and they agreed, that they split the difference.*?Dhimmis in the Muslim Court 437 While the majority of Muslim-initiated mixed lawsuits appear to have been prompted by legitimate concerns, a handful of mixed cases indicate that, on occasion, Muslim individuals were tempted to capitalize on their religious status in order to se~ cure illegal ends. Whether such attempts were based on a correct reading of the court—where discrimination was certainly not documented—or on a kind of social conceit that was undoubtedly pervasive remains open to debate. In addition, it must be noted that fraudulent claims were by no means the monopoly of Muslims and that dhimmis were not necessarily always their targets of choice. Because the court dealt with the legal validity of claims rather than with their social consequences, and be- cause unproven propositions attributing theft or deceit to others do not seem to have generated libel suits, Damascene men and women may have been tempted all too often to advance fraudulent claims even when the prospects of winning were not se- cure as long as they could afford the fees charged by the court. But whatever the legal and social basis for them, such ploys on the part of Muslim individuals apparently did not always succeed. In a case that clearly epitomizes both the temptation on the part of Muslims to ex- ploit their religious status in court, and the fair and orderly proceedings of the court, Mustafa, a Christian man who had converted to Islam ten days earlier, sued his still- Christian mother, Mariam bt. Mikhail, for allegedly holding his share of the legacy left by his long-deceased father. In its summary of the case, the court recognized the religious affiliations just mentioned, but proceeded to rule on the case by reference to the shari‘a rules of evidence, which in this case vindicated the defendant in spite of her religion and gender.*! The majority of the men and women whose names are mentioned in the Damascus sijill appeared at the court in order to serve as witnesses. In this capacity, they acted to identify litigants, buyers, and lessees; to testify to the accuracy of documentation; or to bear witness to the dealings at hand, Dhimmis as well as Muslims were repre- sented in these legal roles. Only on rare occasions did the evidence provided by a dhimmi litigant or witness outweigh that of a Muslim in inter-communal cases. In one such case, a Jewish ‘woman went to court in her capacity as custodian for her children in order to recover 10 quriish from a Muslim man who had borrowed the money from her deceased hus- band. The defendant's response, which challenged the plaintiffs claims to custody, failed when two Jewish men testified in her favor.*? The dearth of cases in which dhimmi testimony was upheld against Muslims suggests that the courts followed the Hanafi refusal to entertain this kind of evidence.* It may also be in part attributable to the fact that the majority of dhimmi cases involved other dhimmis in which Mus- lims had no legal presence. At any rate, it appears that the dhimmis themselves pre- ferred the safer legal venue of presenting Muslim witnesses in support of thi lawsuits against Muslims. Although there is nothing in the documented behavior of the court to support this cautious attitude on the part of the dhimmis, its implication for the overall picture presented in this article is mitigated by the absence of cases in which dhimmi testimony was disregarded on grounds of religious affiliation.* Furthermore, there is no evidence to support the notion that Muslim testimony in court was deemed so weighty as to upset the balance of justice in cases where438. Najwa Al-Qattan documentary evidence proved such testimony dubious. This point is clearly illustrated in a lawsuit in which a Christian man, Niqula w. Musa, presented a claim to 5,600 quriish owed to him by a Muslim man, Ibrahim b. “Abd al-Huda. Although two Muslim witnesses appeared in court in support of their co-religionist’s denial, Niqula w. Musa won his case when he presented documentary evidence in support of his claim. In the absence of other forms of evidence (on the part of one or both parties in- volved in a suit), the qadi frequently requested that dhimmis testify under oath. ‘These oaths, which were invariably accepted, were deemed sufficient to override the unsubstantiated allegations of Muslim plaintiffs.“ The oaths administered to Christians and Jews were frequently worded in the same way as those taken by Muslims: “halafa bi7llah ta“ala al-‘azim al-rahman al- rahim” (he swore in the name of God, the Great, the Merciful, the Compassionate). However, most of the dhimmi oaths were specifically tailored to the Christian and Jewish actors.” Dhimmi variations on the “Muslim” oath are significant for several reasons. In drawing a clear distinction between dhimmi and Muslim practice, they indicate the extent to which religion was implicated in the practice of the courts. Despite its many administrative and “secular” functions, the mahkama was also and perhaps primarily an institution deeply rooted in the religious establishment. At the same time, because of their uniqueness, these dhimmi variations, which represented the only instances in which procedural religious distinctions were made in court, also underscore the ti- umph of practiced law over the importation of religion into the legal arena. In addi- tion, despite their distinctly worded contents, the oaths that Muslims and dhimmis enunciated in court did not interfere with the legal procedure and appear to have been considered of identical evidentiary weight.* In other words, the court acknowledged the actors’ different religious affiliations but proceeded to dispense its business with- out giving them further consideration.”® The material just cited points to several conclusions regarding the treatment of dhimmis at court. First, it is evident that the courts implemented shari‘a law regard- less of the religious identity of those involved. Not only did the dhimmis specifically seek the court for just that purpose, but the mahkama routinely applied its own rules and regulations.” Furthermore, even when the appearance of dhimmis at court was not discretionary—for inheritance litigation, for example—it is also clear that many did so in the pursuit of specific sharia rules they deemed beneficial. In addition, the courts appear to have had little choice—and no documented inclination—to resist or deny dhimmi requests. Not only did the Hanafi school of law require qadis to comply with dhimmi intra-communal solicitation, they were also obligated to apply the law as if the individuals were Muslims. In a certain sense, dhimmis appear to have been beneficiaries of a juridical status of choice in marital and other personal litigation.*! Second, Muslim justice as applied to dhimmis was not, however, in every instant blind to religious identity. Both legal doctrine and social prejudice led to the pre- ponderance of the Muslim witness over his or her dhimmi equivalent. ‘This is not to suggest that the Muslim court was an arena for dhimmi oppression. Not only did dhimmis often and voluntarily seek its domain, but it also appears that sharia law was consistently and fairly implemented. This is not only to say the ob- vious: that the court was an institution devoted to the implementation of its ownDhimmis in the Muslim Court 439 laws, including laws dealing with dhimmt rights and obligations. It is also to draw a distinction between legal and moral discrimination, between legal justice and ‘moral injustice. Notwithstanding the fact that dhimmi legal inferiority, was inscribed in sharia law, the sharia courts were not domains devoted to the persecution and victimization of non-Muslims. If a combination of reasons—voluntary as well as obligatory—explains the fre- quency with which the dhimmis of Damascus went to the Muslim court throughout the period under study, are we to conclude that they did so because they had no other place to go, that communal courts simply were not available to them? The question of the existence of communal courts is not immediately resolved by reference to ab- sent communal registers and silent sijill records, which is the case for Damascus. Needless to say, losses and gaps in our historic archives cannot speak the requisite language of indisputable proof, nor do such losses foreclose the possibility of future archival discoveries. Furthermore, whereas evidence for Christian courts appears to be lacking, the re- sponsa literature makes both direct and anecdotal reference to the existence of Jew- ish courts in Damascus (as well as Beirut and Aleppo).** Interestingly, references to Jewish courts in the responsa appear to be predominantly concerned with the very problem at stake—the extensive recourse of Jews to the Muslim court and their con- sequent flouting of both Jewish law and communal authority. The extent to which the authority of the courts was circumscribed is also indicated in the few references made to such courts in the Levant travel literature.®* In other words, the best avail- able evidence for the existence of Jewish courts also speaks of the frequency with which the authority of those courts was challenged, so that the official and wide terms of legal autonomy often attributed to dhimmt courts need to be seriously reassessed. In addition, the behavior of the sharia court as well as the actions of its dhimmit clients challenge the universality of dhimmi judicial autonomy in Ottoman times, the power and authority that was invested in dhimmi courts, and the practices of le- gal discrimination that are usually associated with the respective religious identities of the Muslim court and its dhimmi users.5" Finally, the foregoing selection of dhimmi cases as transcribed, argued, and settled in the shari‘a courts of Damascus demonstrates that, on the occasion of dhimmt appearance there, the court enforced its laws, implemented its procedures, and reg- tered its actions in accordance with legal and linguistic rules described as shari®a~ sanctioned. In all its dealings, the court ignored the religious affiliation of dhimmt witnesses, litigants, and agents, and enacted regulations it justified through recourse to an insistent reference to sharia labels. The court did this not only in connection with “secular” administrative arrangements and notarial services, but also in dispensing judgments on personal diimmi litigation. What does this tell us about the court? Uriel Heyd has noted that in Ottoman usage, and as a consequence of the fact that the distinction between sharia and kanun was not always clearly drawn, the word shar“an (sanctioned by the shari‘a) often referred to that which was deemed “le- gal.”5* In an equally interesting but rather cursory aside, Antoine Fattal has suggested that, by insisting on applying sharia law to all who live in a Muslim domain, the Hanafi school understood the jurisdiction of the qadi over dhimmi affairs as obliga- tory and the competence of the dhimmi courts as both arbitrary and discretionary. In440 Najwa Al-Qattan consequence, they came very close to regarding law in “territorial” terms—a territo- riality that was borne out of an understanding that (political) sovereignty necessarily involved juridical control. Whereas generalizations of this nature need to be tempered by the variety of Ot- toman administrative practice over time and space, it is also clear that Ottoman legal practice suggests the need to view the mahkama less as an institution dedicated to “Muslim” justice and the primacy of religious identity over and above processes of fairness, and more as a public space openly accommodating to the everyday needs of all its clients. Also noteworthy in this context is the occasional tendency to attribute much of the corruption of the Ottoman qadi court system to illegal and arbitrary intervention by the state, To suggest that, on the contrary, the intervention of the state in the func- tioning of the courts may have imparted a more “secular” and territorial discourse to “Islamic” law and a consequent leveling practice of the legal playing field is to say that the institution of the court needs to be subjected to empirical as well as analyt- ical reassessment, The Jews and Christians of Damascus, much like their counterparts in other areas of the empire, lived under a number of social and political disabilities—sartorial and otherwise—that have been too often discussed, and indeed highlighted, to dwell upon or contest. While the object of this article is neither to dispute the pervasiveness of discrimination nor to mitigate the extent to which it affected dhimmt life, it re- mains nonetheless evident that legal, cultural, and institutional causes contributed to the creation of a complex and relatively fluid and just legal arena in which important aspects of dhimmi life were not governed by the extremes of fortune familiar to us from other sources, and where the Muslims of Damascus—the putative mob—came face to face with their Jewish and Christian neighbors in a public and open sphere that catered to their needs in a fair and orderly manner. NOTES. 'Radbaz, She*lot u Tshuvot (Responsa) (Warsaw, 1882), I, nos. 29, 114, quoted in Aryeh Shmuelevitz, The Jews of the Ottoman Empire in the Late Fifteenth and the Sixteenth Centuries: Administrative, Eco- nomic, Legal and Social Relations as Reflected in the Responsa (Leiden: B. J. Brill, 1984), 51. 2The original research for this article is based on several thousand dhimmt cases extracted from one hundred sijill volumes roughly covering the period 1775 to 1860. A substantial part of this research was carried out at the University of Jordan's Markaz al-Watha?iq wa? I-Makhtatat, where the center keeps mi- crofilm copies of a large number of Damascus sijlls. Reference to documents obtained from the center are, therefore, followed by the appropriate microfilm catalogue number, but not by document and page rhumbers, which in the majority of cases were illegible. Two additional notes are in order. First, a number of sijill cases cited in this paper are identified as “Aleppo” cases on account of a filing error at the center in Jordan—they are in fact Damascene sijills. Second, in the sill cases cited, the abbreviations “b.,” “w.." and “bt.” refer to ibn (son of }, walad (dhimmt son of ), and bint (daughter of), respectively. 3Sce Halil Inalcik, “Ottoman Archival Material on Millets.” in Christians and Jews of the Ottoman Empire: The Functioning of a Plural Society, ed. Benjamin Braude and Bernard Lewis, 2 vols. (London and New York: Holmes and Meier Publishers, 1982), The Central Lands, 2:437. See Shmuelevitz, Jews of the Ottoman Empire, 60-61, 75, and Suraiya Faroghi, Men of Modest Sub stance: House Owners and House Property in Seventeenth-Century Ankara and Kayseri (Cambridge: Cambridge University Press, 1987), 183, who suggests that the dhimmis of 17th-century Ankara and Kay- seri regularly registered their sale deeds with the court to obtain written proof of ownership against futureDhimmis in the Muslim Court 441 liability in which they, as dhimmis, would not be able to testify against Muslims. This is a somewhat ironic development given the tenuous evidentiary nature of written proof in sharia doctrine. Sin fact, intra-communal cases outnumbered inter-communal cases on the order of two to one. Shmuelevitz, Jews of the Ottoman Empire, 43~44, Adnan Muhammad Bakhit (“The Christian Pop- ulation of Damascus in the Sixteenth Century,” in Christians and Jews, ed, Braude and Lewis, 2:27) and Abdul-Karim Rafeq ("The Syrian “Ulama, Ottoman Law, and Islamic Shari“a,” Turcica 26 [1994]: 10) have both argued that Ottoman qadis enforced the registration of marriages, dhimmi as well as Muslim, in court in order to collect the marriage fee “aris vesmi). The relatively small number of registered Mus- lim and dhimini marriages challenges this as an explanation, “In fact, the distinction between the two is often blurred at the level of function as well as atthe level of titles. See, for example, Amnon Cohen, Jewish Life Under Islam: Jerusalem in the Sixteenth Century (Cambridge, Mass.: Harvard University Press, 1984), 48-49, and Alexander Russell, The Natural His tory of Aleppo, 2 vols. (London: G. G. & J. Robinson, 1794), 2:62. Joseph R. Hacker, “Jewish Autonomy in the Ottoman Empire: Its Scope and Limits: Jewish Courts from the Sixteenth to the Bighteenth Centuries,” in The Jews of the Ottoman Empire, ed. Avigdor Levy (Princeton, NJ: Darwin Press, 1994), 185. Shmuelevitz attributes the matter to a clear Ottoman regulation regarding the right of Jewish indi- ‘viduals to seek the sharia courts on all occasions (Jews of the Ottoman Empire, 43~44); Pantazopoulos stresses Ottoman equivocation regarding the matter (N. J. Pantazopoulos, Church and Law in the Balkan Peninsula During the Ottoman Rule [Amsterdam: Adolf M. Hakkert, 1984], 103~7). Hacker argues that dhimmi courts had no official standing in the empire (“Jewish Autonomy,” 183-84) "See Cohen, Jewish Life Under Islam, 36-58, and Abraham Marcus, Middle East on the Eve of Mo- dernity: Aleppo in the Eighteenth Century (New York: Columbia University Press, 1989), 108-9, who appear to assume it “See Hacker, “Jewish Autonomy.” 183, who appears to assume that Christians, unlike Jews, enjoyed an officially sanctioned legal autonomy between the 16th and 18th centuries; Shmuelevitz, Jews of the Ottoman Empire, 43, who argues that until the 18th century, the church courts were limited to matters of personal religious law, while I5th- and 16th-century Jewish courts dealt with all but criminal cases; Pan- tazopoulos, Church and Law, 19, 43, 56~57, 103~7, who maintains that until the 18th century, the Otto- mans limited the church's authority to religious matters; Inalcik, “Ottoman Archival Material.” 440, who argues that until the 18th century, the authority of the church leadership was restricted to matters dealing with church organization and property; and Richard Clogg, “The Greek Millet in the Ottoman Empire,” in Christians and Jews, 1:186-87, who connects judicial authority to the rise of the millers. "2genjamin Braude, “Foundation Myths of the Millet System,” in Christians and Jews, 1:69-88. 'Stbid. See also Amnon Cohen, “On the Realities of the Millet System,” in Christians and Jews, 2:15, and Shmuelevitz, Jews of the Ottoman Empire, 15~30, whose argument is suggestive of a historiographic “foundation myth” reversed—in other words, that the limited judicial autonomy that the Jews of the early Ottoman period may have enjoyed is erroneously forwarded into the later centuries and simply assumed. 4Shmuelevitz, Jews of the Ottoman Empire, 49~S0; Cohen, Jewish Life Under Islam, 116, 126, 131 'SRonald C, Jennings, “Zimmis (non-Muslims) in Early 17th Century Ottoman Judicial Records: The Sharia Court of Anatolian Kayseri,” Journal of the Economic and Social History of the Orient 21, 3 (1978): 251, 271, 274; idem, Christians and Muslims in Ottoman Cyprus and the Mediterranean World, 1571-1640 (New York: New York University Press, 1993), 69, 133; and Faroghi, Men of Modest Sub- stance, 154, 200-210. "6Hlacker, “Jewish Autonomy,” 181; Marcus, Middle East, 108-9. "Fora discussion of the limitations of the Responsa as sources, see Shmuelevitz, Jews of the Ottoman Empire, 1-9. 'S]n this context, the occasional appearance of members of the Christian clergy at court is noteworthy insofar as they attest to the role of the Muslim court in dhimmi affairs. See, for example, sill 25T/p. 15) no. 21/15 Rabi® I 1221 (1806), according to which a gissis (priest) went to court in order to conclude a purchase and sale agreement of household items with his own wife. "See sijill 298/Aleppo film 241/18 Rabi® [ 1237 (1821); sill 123/film 222/pp. 433~34/11 dhu?l Qada 1200 (1786); sill 240/pp. 112—13/no. 198/17 dhu°l-Qa°da 1221 (1807); sijill 254/pp. 521-22/n0. 981/11 Rabi° 1 1220 (1805); sijill 707/flm 217/18 dhw"I-Qarda 1201 (1787); sifll 301/p. 348/n0. 13801 19 Muharram 1239 (1823); and sijill 270/p. 280/no. 459/12 Shawwal 1225 (1810).442 Najwa Al-Qattan 2%See Shmuelevitz, Jews of the Ottoman Empire, 43-44, 65~68. See also Hacker, “Jewish Auton- omy.” 182. *pantazopoulos, Church and Law, 53~57, 59, 65~66, 93, 107. See also Shmuelevitz, Jews of the Ottoman Empire, 66-67, 69, and the instances mentioned in Cohen, Jewish Life Under Islam, 110-38. Mohammad Afifi, “Reflections on the Personal Laws of Egyptian Copts,” in Women, the Family, and Divorce Laws in Islamic History, ed. Amira BI Azhary Sonbol (Syracuse, N.Y.: Syracuse University Press, 1996), 203-6. On added clauses to the marriage contract, see Nelly Hanna, “Marriage Among Merchant Families in Seventeenth Century Cairo," in Women, the Family, M354 23See Shmuelevitz, Jews of the Ottoman Empire, 66, 69. sist 225/film 211/3 Ramadan 1195 (1781) and sijll 257/p. 393/no. 694/10 dhu?I-Hiija 1221 (1807). For another example of a simple saddq case, see the case of Katrin bt. Musa al-Muradi and Khalil w. Mikhail al-Shaghuei (siiff 240/p. 125/n0, 217/7 dhw°l-Hijja 1221 (1807)]. See also, siiff 218/film 193/12 Muharram 1206 (1791); sijill 298/film Aleppo 214/19 Shawwal 1236 (1821); sifill 174/film 209/12 Rabi® 11 1180 (1766). For an example of a sadag from a rural area, see the case from the village of al-Jadida (sijll 212/hlm 225/12 Ramadan 1196 (1782) 2Ssifitl 300/film 191/p. 137/10 Rabi® 1 1238 (1822); see also sill 300/film 191/p. 141/16 Rabi IL 1238 (1822). Marital eligibility for divorced and widowed women involved a waiting period (dda) to insure that the woman was not with child. 2®Other cases touching on divorce involved more sensitive issues, a illustrated by the case of a Chris- tian man, Fadlallah w. Hanna Zughaib, who appealed to the qadi against his wife, Mariam bt. Ilyas Kasarni, for denying him sexual intercourse even though he had paid her sadag. Because he was unable to prove his claim in court, the qadi ordered him not to harass his wife (sijill 300/ilm 191/p. 227/11 Rajab 1238 [1823). 27Siill 301/p. 3620. 1439/8 Sha*ban 1239 (1824). 28 itll 209/film 210/12 Sha‘ban 1194 (1780). See also sill 213/film 25/4 Jumada I 1196 (1782). 29 siidl 21 film 225/15 Rabi I 1195 (1781). See also, sijil 216/film 225/16 Jumada I 1197 (1783), for an example from a village in Hawran, On the different types of divorce, see Judith E. Tucker, In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine (Berkeley: University of California Press, 1998), 78-112. SOsiitt 2161film 225/11 Sha‘ban 1197 (1783). This case is of further interest because the woman was accompanied by her father and shaykh al-hara (the elder of the Jewish neighborhood) Musa w. Khadr, suggesting that her act of seeking divorce in the Muslim court was not considered reprehensible in com- ‘munal terms. 3IFor a concise and fascinating discussion on Hanafi law and faskh divorce—the annulment of mar- riages deemed defective—see Tucker, In the House of the Law, 8187. Tucker points out that Hanafi law granted annulment on several grounds—including a husband’s impotence—but not a husband’ failure to support his wife. However, Hanafi courts recognized such annulments when granted by Shafi*iand Hanbali |udges. Interestingly, the two cases mentioned later involved a Hanbali and a Shafi“ judge, respectively “sift 257/pp. 41-A2/no. 73/19 Rabi 11 1220 (1805); see also sijill 21 film 225/14 Jumada T1195 (781). SSsijill 2701p. 202/n0, 229/7 Sha ban 1225 (1810). See also sill 204%p. 69/n0. 157/3 Jumada II 1192 (1778), in which a Jewish woman, Qamar bt. Yahya al-Jajati, sued her brother “Ubaid over her share of an inheritance from their deceased mother. Silt 301/p. 144~45/22 Safar 1239 (1823). Ssijill TO7/film 217/Jumada II 1197 (1783). For further examples of dhimmi disputes over shari‘a- arbitrated inheritance, see sil 21 /ilm 225/9 Sha*ban 1195 (1781); sill 21 1/flm 209/10 dhu°I-Qa°da 1194 (1780); sijill 173/ikm 209/10 Rabi® I 1180 (1766); sill 211film 209/15 dhw°1-Hijja 1194 (1780); sil 217/ftm 193/mid-Muharram 1199 (1784); sll 204/p. 68/n0. 155/13 Jumada 111921778); sijill 204 p.69/n0, 157/3 Jumaida II 1192 (1778). twas apparently not uncommon for some dhimmis to misrepresent either the law or their own family relationships in fraudulent attempts to inherit from others. See, for example, sijill S08/p. 18/n0. 30/14 Shawwal 1276 (1860). Sor some examples of the hundreds of sale and rental documents in which reference is made to sharia rules of inheritance (al-farida al-shar“iyya), see sill 123/ilm 222/pp. 266~-67/2 umada IT 1200 (1786) and sill 270/p. 236/n0, 262/9 Ramadan 1225 (1810),Dhimmis in the Muslim Court 443 STFor examples from other cities, see Marcus, Middle East, 108-9, 210; Cohen, Jewish Life Under Is- lam, 133; and Aharon Layish, “The Sijill of Jaffa and Nazareth Sharia Courts as Source for the Political and Social History of Ottoman Palestine,” in Studies on Palestine During the Ottoman Period, ed. Moshe Mato7. (Jerusalem: Magnes Press, 1975), 531. Material cited by Shmuelevitz, Jews of the Ottoman Em- pire, 61, 69, from the city of Salonica suggests that Jews routinely went to the shari“a courts over inher- itance. The author also notes that the Jewish authorities sometimes made concessions in the application of Jewish law (by conceding some share of the inheritance to daughters, for example) in order to forestall recourse to the Muslim court S8The documents themselves, needless to say, leave no record of injustice or bribery, but then, as Mar- ‘cus has insightfully pointed out, the consistency of the qadis’ rulings—especially when viewed over a number of decades—suggests that justice was in fact usually rendered. The court system's own “institue tional controls"—witnesses, men with vested interests, and litigants familiar with the law—all militated against gross abuse (Marcus, Middle East, 111-13). This is not to deny the ignorance and corruption of- ten attributed to the courts. It is to say that allegations of widespread abuse, particularly when based on foreign consular and travel literature, should be critically appraised, especially in view of the literature’s focus on dhimmi litigants as exclusive targets. See, for example, Moshe Ma‘oZ, Ottoman Reform in Syria ‘and Palestine, 1840-1861: The Impact of Tanzimat on Politics and Society (Oxford: Clarendon Press, 1968), 154. S°sijill 210/film 209/5 dhu *I-Hijja 1193 (1779) and sijill 257/pp. 177-78/no. 264/2 Jumada II 1221 (1806). For similar cases, see sijil 389/pp. 2-3/no. 2/17 Sha" ban 1261 (1845); siill 7O7/film 217/Mubar- ram 1197 (1782); sifill 240/p. 141/no. 214/12 dh °I-Hijja 1221 (1807); sill 30L/pp. 117-18/16 dhu °- Hijja 1238 (1823). See also sijill 213/ilm 225/5 Muharram 1196 (1781); sijll 21 1/film 225/2 Ramadan 1195 (1781); sijill 298/film Aleppo 214/13 Rajab 1236 (1821), and sijill 21 1/film 225/6 Jumada I 1195, (7s). “OSitl 173/htm 209/end of Rabi HI 1180 (1766) and sill 257/p. 198/n0. 309/27 Jumada II 1221 (1806). 41 sift TO7/film 217/19 Jumada 1 1198 (1784). Justice was also upheld in several other similar cases: see, for example, sijll 322/p. 215/n0, 474/10 Shaan 1247 (1832) “?sijill 326/film 201/no. 20/15 Jumada 1 1249 (1833). See also sill 326/film 201/15 Rabi II 1249 (1833) for a similar case involving a Christian Woman whose claims against a Muslim (the nazir of the treasury) were upheld by the court “Dhimmi testimony and oaths were not, according to the Hanafi school, valid against Muslims. Hanafi doctrine accepted dhimmi testimony against other dihimmis not only because “all dhimmis are one community of infidels,” but also in the interest of justice, since most dhimmi business dealings involved other dhimmis (Antoine Fattal, Le Statut légal des non-musulmans en pays d’Istam [Beirut: Imprimerie Catholique], 361~65). {Compare with Jennings’s similar findings for Kayseri, in “Zimmis,” 257, 263. For a detailed discus- sion of the evidentiary value of dhimmi witnessing and oath and the attitude of the different legal schools, see Fattal, Le Statut légal, 191-203, 365. For a provocative study of the dhinomi witness based on Otto~ rman fatwa literature, see Mario Grignaschi, “La Valeur du temoignage des sujets non-musulmans (ahimmi) dans Vempire ottoman,” in Recueil de la Société Jean Bodin pour (Histoire Comparative des Institutions 18, 3 (1963): 211-324 ‘Ssijill 509/p. 103/n0, 235/4 Rabi® Il 1277 (1860). See also sifill 301/p. 151/no. 631/19 Muharram 1240 (1824), “The same procedure was administered when both parties were Muslims. Refusal to testify under ‘oath was interpreted as proof of fraudulence. Compare Cohen, Jewish Life Under Islam, 122-23, for sim- ilar practices in the Jerusalem courts "For instances of the “Jewish” oath, see sijill 204/p. 69%/no. 157/3 Jumada II 1192 (1778); halafa bi7I- lah al“azim munazzil al-tawra Sala sayyidina Musa (he swore in the name of God, the Great, He Who sent the Torah to the Prophet Moses); sjill 204/p. 68/no, 155/13 Jumada II 1192 (1778). For an example of the “Christian” oath, see sil 250/p. 157/n0. 257/25 Safar 1217 (1802), halafa bi°tlah ta‘ala al-‘azim wa-munazzilal-injil “ala sayvidina ‘Isa (he swore in the name of God, the Great, He Who sent the Gospel to the Prophet Jesus). Compare with Klara Hegyi, “The Terminology of the Ottoman-Turkish Judicial Documents on the Basis of the Sources from Hungary,” Acta Orient 30 (1965): 198.444 Najwa Al-Qattan “Compare Shmuelevitz, Jews of the Ottoman Empire, 48, according to which Otwoman qudis of the early period regularly had Jewish courts administer the Jewish oath, tn contrast to the Maliki school, which positively prohibits mention of the Bible at court, Hanafi (and Shafi’) doctrine allowed Jewish and Christian oaths (Fattal, Le Statut légal, 365) See Jennings, Christians and Muslims, 71, according to which “when [dhimi] formal complaints ‘were made at court, they were almost always made in the form: I want my complaint to be considered in accordance withthe sharia.” Fatal notes that a distinction should be made between the question of what Jaw applies to dhimmis in the Muslim court and what authority the court holds in inter-dhimmi cases (Le Statut legal, 352). 5!'The Muslim courts considered dhimmi marriages valid as long as they conformed to the dictates of the relevant dhimmni religion. This was true even when such marriages did not follow shari‘a law regard- ing witnessing and “idda. In addition, a dhimmt couple separated through a tiple divorce could not re- marry until the wife had married (and divorced) another. Should they remarry otherwise, the gadi had the authority to invalidate their union, even when both wished to stay married, However, the courts were not to consider cases involving the ownership and consumption of alcohol and pork (Fattal, Le Starut Iégal, 128-29), 52See Carlo Ginzburg, The Cheese and the Worms: The Cosmos of a Sixteenth Century Miller, trans. John and Anne Tedeschi (New York: Penguin Books, 1982), For an interesting comparison, see S. D. Goitein, “The Documents of the Cairo Geniza as @ Source for Islamic Social History.” in Studies in Islamic History and Institutions, ed. S. D. Goitein (Leiden: E, J. Brill, 1966). The Geniza collection includes not only records of rabbinic courts in Fatimid times but also evidence thatthe Jews frequently used the qadi courts either instead of or in conjunction with the lat- ter (pp. 283, 291). “Wael B. Hallag, “The Qadi Diwan (Sill) Before the Ottomans,” Bulletin of the School of Oriental and African Studies 61, no. 3 (1998), makes a compelling case against necessary connections between lost archives and negative arguments concerning the existence of related institutions. 5SSee Walter P. Zenner, “Jews in Late Ottoman Syria: Community, Family and Religion,” in Jewish Societies in the Middle East: Community, Culture, and Autonomy, ed, Shlomo Deshen and Walter P.Zen- ner (Lanham, Md.: University Press of America, 1982), 188. S6See, for example, Shmuelevitz, Jews of the Ottoman Empire, 49-0; Cohen, Jewish Life Under Islam, 116, 126, 131; Zenner, “Jews in Late Ottoman Syria,” 188; Russell, Natural History, 2:61-62. STHlacker, among others, has suggested that the extent of legal autonomy available to Ottoman Jews has been exaggerated, thanks primarily to European Jewish travelers who found it impressive compared With what they themselves experienced at home. Additionally, one can speculate about the relationship between the power and status of dhimmi communities, on the one hand, and the extent of legal autonomy, ‘on the other. For @ good comparison, see Amnon Cohen, who notes that the Jerusalem rabbinical author- ities of the 16th century sought to excommunicate those who disobeyed, and Goitein who points out that ceven in Fatimid Cairo, where the Jewish community was quite cohesive, the authorities stil had to resort to both public pressure and the threat of excommunication to prevent Jews from using the Muslim court (S.D.Goitein, A Mediterranean Society: The Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, 3 vols. (Berkeley: University of California Press, 1971] 2:398-400) 58Uriel Heyd notes that the term bid“at (innovation) was also used to refer to innovations in kanun (Studies in Old Ottoman Criminal Law, ed. V. L. Menage (Oxford: Clarendon Press, 1973], 187). Seana, Le Statut gal, 357-58. Compare with Jennings's conclusions regarding the Kayseri courts’ treatment of dhimmis in “Zim- mis!” 285-87. Here, as elsewhere, Jennings stresses thatthe law as applied in the Kayseri court was one Jaw—a law intended to serve everybody's needs. See also Jennings, “Limitations of the Judicial Powers of the Kadi in 17th C, Ottoman Kayseri” in Studia Islamica 50 (1979): 169-70.