| Book Review | Law and History Review, 17.2

Book Review

Ebu's-su'ud: The Islamic Legal Tradition,

In the Ottoman legal tradition, Ebu's-su'ud (c. 1490-1574) is primarily recognized as the jurist who harmonized Hanafite law with Ottoman secular law. It is this significant theme that constitutes the focus of Imber's brilliant study. But Imber's analysis goes beyond the limits of this harmonization that fell within the spheres of land tenure and taxation, constitutional law, cash waqfs, and, to some extent, penal law. He also discusses several other legal areas to which Ebu's-su'ud contributed, situating them, with remarkable competence, in the larger context of classical and pre-Ottoman Hanafite law. These areas include marriage and its dissolution, equality, dowry, maintenance, child custody and guardianship, waqfs property and administration, theft, usurpation, property damage, personal injury, homicide, and criminal liability. Imber's coverage of all these subjects, together with an excellent biographical account of Ebu's-su'ud and an introduction to the Ottoman legal context, affords a reasonably comprehensive view of this man's celebrated legal career. It is therefore quite fitting that the volume is published in the series Jurists: Profiles in Legal Theory, Ebu's-su'ud taking his rightful place alongside Francis Bacon, Max Weber, and H. L. A. Hart.

In most areas pertaining to waqfs, personal law and crimes, Ebu's-su'ud's concern is shown to be highly practical, geared toward ensuring the smooth carriage of justice and toward finding equitable solutions to daily problems. In these areas, where the traditional law was the normative system, Ebu's-su'ud was working wholly within the Hanafite tradition, applying it to the letter. On other, rarer occasions, when traditional law was perceived as incapable of fulfilling the needs of society, he managed to invoke Ottoman secular law while clothing it in a mantle of authority emanating from religious law. In yet other instances, when Hanafite law was viewed as providing part of the solution to the problem at hand, he adopted it with modifications.

The most notable area of Ebu's-su'ud's contribution was in land tenure and taxation, a contribution that bestowed upon Ebu's-su'ud a unique status among the Ottoman jurists. In the empire, feudal tenure was a system that recognized the shared interests of the sovereign, the fief-holders, and the peasants, without assigning any of these interested parties clear and well-defined ownership of the land. In contradistinction with this system, Hanafite law deemed land a commodity and as such capable of being sold, bought, and rented. By borrowing from, and indeed manipulating, the repertoire of Hanafite concepts of loan and lease, he reached the conclusion that the treasury is the owner of the land. The outcome was to increase the sultan's power over occupants of land and rates of taxation.

Ebu's-su'ud's energies expended in fortifying the position of the sultan included an attempt to elevate him to the status of caliph, and, having done so, he accorded him powers over the interpretation of the Shari'a. Doing so was a necessary step in the process of legitimizing royal decrees and secular law, for these were ultimately brought, albeit nominally, under the wings of religious law. However, this attempt at granting the sultan/caliph powers of legal interpretation was not as fresh and innovative as Imber makes it to be. It had antecedents in earlier Islamic history, as the Shafi'ite tradition of juristic political theory well attests.

Imber's book is most informative, providing not only an excellent understanding of Ebu's-su'ud's career but also an insightful perspective on a number of juristic issues that were of central importance in a crucial phase in the life of the Ottoman Empire. Most notable among these issues is the relationship between the Shari'a and Qanun, which Imber discusses splendidly in chapter two.

However, the book is not devoid of a number of latent problems, some of which are minor, some not. Reading Imber is often like subjecting oneself to the nineteenth-century discourse of European Orientalists. He writes from a highly Eurocentric vantage point, treating the pre-Ottoman legal tradition as an exotic, or at the very least peculiar, entity. At the same time, these biases of his are not directed toward the Ottomans themselves, Ebu's-su'ud being their champion. In this respect, Imber is in the good company of a number of Ottomanists.

For Imber, the Islamic legal tradition emerges as unforgivingly conservative, impeding the refreshing innovations of the Ottomans whose vanguard here is Ebu's-su'ud. Imber states that Ebu's-su'ud's "originality, in a tradition which forbade innovation, led nowhere" (272). The post-classical legal tradition is not only constraining due to its extreme conservatism (271) but also turns out to be archaic (37). Once Imber leaves the technical discussion of details to speak about issues of more general significance, the reader is made to feel that the author would wish that Islamic law might just disappear, for it not only hampers creativity and innovation but is full of "bizarre" and "strange" cases (see, for instance, 257, 258, 259, 260, 266), having little or nothing to do with the realia of judicial practice, and providing nothing more than "endlessly fascinating ... exercises in legal logic" (38). One such fascinating exercise is the share of inheritance to which a hermaphrodite is entitled, a case that Imber, astonishingly, does not see as having "much connection with the real world." Equally astonishing is his claim that "communal groups, as they appear in the pages of the jurists, did not exist in the real world" (266). Of course, Imber is aware, in the light of recent scholarly finding, that we no longer can dismiss Islamic law as irrelevant to the actual practice on the ground. Nevertheless, he often slips back into the now defunct modes of Orientalist discourse, which also encompassed a view of Islamic law as idiosyncratic.

The book unfortunately does not contain a list of references, a handicap of some measure in such a work. Furthermore, the index is incomplete, making it difficult to locate useful discussion of some important issues (for instance, custody, guardianship, nasab). Some misprints and errors are: "of" has been omitted (16, 1. 26); Zilfi's article was published in 1983, not in 1981 (21); Timirtashi, not Tirmirtashi (30); "on" has been omitted ( 51, 1. 15); "Matba'at" not "Matba'a" (110); "li'an" not "li'an" (284).

Despite these problems, the book remains a well-conceived and intelligently executed piece of scholarship, which should command the attention of both Islamicist legal historians and Ottomanists.

Wael B. Hallaq

McGill University

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