menu icon menu icon close
Spring 2019

Four Centuries of Jurisprudence in Jerusalem

Between the end of Mamluk rule and the start of the British Mandate, Jerusalem evolved a rich tradition of Islamic Jurisprudence, markedly distinct at times from that of the Ottoman Empire.

History of Islamic Jurisprudence and Rulings in Jerusalem, Bashīr ʻAbd al-Ghanī Barakāt اريخ القضاء والإفتاء في بيت المقدس , King Faisal Center for Research and Islamic Studies, 2015. 

 

The History of Islamic Jurisprudence and Rulings in Jerusalem, by Bashir Abed el’Rani Barakat describes the development of the Islamic legal system and religious rulings, focusing on the organization and structure of the court, and the activities of various officials in Jerusalem under Ottoman rule (1516-1917). The study of the development of Islamic jurisprudence in Jerusalem during this period is especially interesting in light of the changes in court institutions, the status of judges (qadis) and jurists (muftis), and, above all, the evolution of Islamic jurisprudence itself, against the background of three major events in the history of the city.

The first event, and one which directly influenced jurisprudence and legal rulings in Jerusalem, is the city’s conquest by Ibrahim Pasha (1789-1848), an Egyptian officer who successfully fought against the Ottoman Empire, conquering Syria and Palestine in 1831. The second event was the implementation of modern reforms (Tanzimat) in the institutions of the court, particularly the reform of Islamic jurisprudence in various provinces of the Ottoman empire, prior to its final collapse. These reforms were not implemented by the Islamic court and the judicial branch in Jerusalem because the city, by this time,  was under the control of Pasha. The third significant event was the transfer of Palestine, including Jerusalem, to the rule of the British Mandate in late 1917.

Barakat’s book was published in Arabic in 2015. It joins nine other studies of his on Muslim Jerusalem, the full details of which appear in this book’s list of sources. Barakat’s studies seek to illuminate the history of Jerusalem, including the development of its political, social, and economic institutions and the daily life of its Muslim and non-Muslim residents. They offer a variety of approaches, covering different periods throughout the centuries of Muslim rule, and do so in a detailed and comprehensive manner. His research relies mostly on numerous primary sources written in Arabic, including certificates and protocols found in various archives, documents from public, semi-public, and private institutions, rulings by qadis and muftis, and interviews Barakat conducted in person.

Barakat’s book is visually inviting. The cover features a painting taken from an Ottoman archive. The image shows an encounter between five key figures in the Muslim legal system, including the qadis of the provinces of Istanbul and Mecca. The painting is of an actual event that occurred in the Ottoman capital in the twentieth century (the names of the figures and their roles are listed in the text). Other paintings and visual displays taken from Ottoman archives, as well as various photographs (mostly of Muslim court buildings in Jerusalem and elsewhere), appear in the book in black-and-white reproductions. These visual elements are a welcome addition enhancing the book’s unique design.

The book’s text integrates, in full or in part, a number of historical sources. Some of the certificates, documents, and letters are blurred and difficult to read. In a small number of cases, Barakat chose to copy the contents of the document into the text. This enhances the study, and will be particularly useful to readers seeking to acquaint themselves with the book’s primary sources. The author also presents a wealth of information in charts, some of which appear in the text body and others in the book’s appendices. The charts undoubtedly add value to the study and to the book.

The first part of the book, “The History of Islamic Jurisprudence in Jerusalem,” contains 17 chapters, in addition to a short introductory chapter. This part constitutes the major portion of the study, since its chapters aim to cover a plurality of subjects and to discuss various issues extending over a long period of time. These chapters address the history of jurisprudence and the judicial branch in Jerusalem, with an emphasis on the Ottoman period. The issues discussed in the first part include the physical and bureaucratic organization of the judicial branch in the Ottoman period in general, and the changes that occurred with the implementation of reforms under the Tanzimat policy.

A number of chapters in this part discuss the development of Islamic jurisprudence in Ottoman Jerusalem and the reorganization of the court and judges after the city’s conquest by Ibrahim Pasha. Also discussed are a number of legal rulings issued in Jerusalem at the time under the four Sunni schools of jurisprudence—the Hanafi, the Maliki, the Shafi’i, and the Hanbali schools—despite the fact that the Hanafi school was the official school of Islamic jurisprudence in the Ottoman Empire. In addition, the book presents the appeals of “protected persons” (ahl ul-dhimmah) – mostly Jews and Christians – to the court in Jerusalem.

In the first part, Barakat examines the status of the qadi in Ottoman Jerusalem and the powers of the judge’s deputy (naib), chosen for this role in Istanbul according to special criteria and sent to remote provinces on behalf of the central government, usually for a limited period of time. Special emphasis is laid on analyzing the status of the mufti (consultant on Islamic law), his powers, and the support he provided to the qadi. Barakat also analyzes the complex relationship between the qadi and other government bodies. He also notes the influence of religious scholars (ulama) on the judicial branch and on the institutionalization of Islamic jurisprudence.

Some of the chapters in the first part are of an informative nature. They include a description of the life and work of non-Arab Muslim judges in Ottoman Jerusalem. Other chapters present the members of the court staff and even the official holiday calendar of the Muslim court. There is also a description of the physical structure of the courthouse in Jerusalem and of the internal organization of the court staff. Another chapter discusses the court’s financial documentation.

The second part, “The History of Islamic Rulings in Jerusalem,” is only six chapters long. It discusses the historical development of Islamic rulings in Jerusalem, particularly under Ottoman rule. A number of chapters in this section follow the development of religious rulings as part of the empire’s official (Hanafi) school, while also considering such developments in other schools. Some of the chapters contain a wealth of information on the appointment of muftis, the jurist selection process, muftis’ requests—as part of the ruling process—for knowledgeable assistance from various professionals such as builders, engineers, doctors, and midwives, lies and distortions uncovered by muftis in the course of different legal procedures, and even the biography of Muhammad Abu Al-Latif Namud̩jan, the most prominent mufti in Jerusalem at this time.

The bibliography reveals that the book draws mostly on primary sources written in Arabic. Most of these are legal documents, religious rulings, manuscripts, photographs, and lists (for the most part lists of names and financial documentation). The sources are taken from archives, collections held by various organizations, and the private collections of different officials.

The book refers to testimonies by Arab and foreign residents of Ottoman Jerusalem. One was from Elizabeth Anne Finn, spouse of James Finn, the second British Consul in Palestine. Finn served in this capacity from 1846 until his dismissal in 1863, after which the couple returned to Britain. Finn is remembered in Ottoman history, and particularly in Jewish history, as a protector of the Jewish minority in Jerusalem. He sought to establish agricultural farms for Jews in the Jerusalem vicinity, with the aim of improving the Jewish community’s economic circumstances. Following her husband’s death, Elizabeth Anne Finn sold the Kerem Avraham farm into Jewish hands. In her memoir, Reminiscences of Mrs. Finn, published in 1929, she relates the history of the Ottoman Empire after the Crimean War and the history of Jerusalem in the second half of the nineteenth century. Barakat uses this source intelligently in his book.

In the relatively short introduction, only four pages long, Barakat offers a brief, perfunctory survey of prominent studies published on the history of Muslim jurisprudence in Jerusalem at various times. The survey reveals that even though a number of studies on this subject have been published, they only cover a short period: from the city’s conquest by the second caliph Omar ibn al-Khattab (584-644) in the seventh century and until the early Ayyubid era, beginning with the city’s conquest by Saladin in the early twelfth century. In Barakat’s view most of the studies on this subject are overly generalized and uncritical.

In addition Barakat claims that the new studies on Ottoman Jerusalem published prior to his book are overly concise and fail to contribute significantly to the study of the history of Islamic jurisprudence in Jerusalem in the period under discussion. At the end of the survey, Barakat states his study’s objective in an unequivocal manner. His book, he writes, will follow the development of Islamic jurisprudence of the institution of the court of law in Jerusalem during the Ottoman period.

Against this background, Barakat’s book should be considered a pioneer in its field of research. Barakat presents the centuries-long history of Islamic jurisprudence in Ottoman Jerusalem from a number of previously unexplored perspectives, including the political, social, and economic viewpoints and the perspective of Islamic religious law. Furthermore, he focuses on analyzing judges’ rulings, the work of muftis and their daily activities in the court, and on the development of a complex relationship between the muftis and other government institutions.

More generally, the book seeks to shed light on the political, social, and economic life in Jerusalem in the Ottoman period, particularly under the rule of Ibrahim Pasha. It describes the history of the Islamic court and the development of Islamic jurisprudence, from the city’s conquest by Caliph Omar ibn al-Khateeb and his army in 638 until the beginning of the Ottoman Empire. Another subject discussed at some length is the development of Islamic jurisprudence in Cairo during the Mamluk and Ottoman periods, with the intent of finding similarities and differences between Jerusalem and Cairo.

The concluding chapter is disappointingly short for a book of this length. In the two pages of this chapter, Barakat attempts to summarize the history of Islamic jurisprudence in Jerusalem in the Ottoman period. He argues that the city’s Islamic jurisprudence and rulings at this time developed thanks to the collaboration and extensive efforts of judges and senior and junior officials of the court, as well as Muslim and non-Muslim civilians who required the court’s services.

The book reveals that even though central government in Istanbul sought to administer the empire’s political, social, and economic spheres according to the Hanafi school (which it had declared as the official school of jurisprudence in the Ottoman Empire), Jerusalem’s rulers and subjects, including protected persons, sometimes preferred other schools. As long as verdicts issued by other schools of jurisprudence served them well or were beneficial for the general population, both Muslims and non-Muslims continued to uphold them. Accordingly, Islamic jurisprudence in general, and specifically with regard to protected persons, flourished at this time. However, this circumstance did not detract from the legal importance of Hanafi books and collections in Ottoman Jerusalem.

The analysis of the history of the Jerusalem Islamic court in the Ottoman period leads to the conclusion, accepted in the current research, that this institution combined various cultural influences, Islamic legal culture, the use of the Arab and Ottoman-Turkish languages, and modern organizational procedures. A similar conclusion is reached in the study of the history of other Jerusalem institutions, such as the history of madrasas and Arab libraries (the full details of Barakat’s study, titled The History of the Arab Libraries in Jerusalem and published in 2012, appear in the bibliography at the end of the present volume). In addition, Barakat’s book offers abundant and conclusive evidence in support of the prevailing argument in the research literature, according to which the Islamic court in Ottoman Jerusalem was a dynamic and flexible institution able to adapt to changing circumstances.

Another finding is that the organization of the Jerusalem court differed from the organization and administration of the courts in Cairo and other cities. According to Barakat, this is due to the different profile of the judges, muftis, and senior and junior officials in the various cities, the political character of the local society, the financial condition of the different provinces, and the existence of an official school of jurisprudence in the province. One of the factors impacting the development of Islamic courts in the provinces was the degree of success of the Tanzimat policy, initiated by the Ottomans as part of the empire’s modernizing reforms, beginning mostly in the second half of the 19th century. However, due to the conquest of Jerusalem by Ibrahim Pasha, the new policy did not achieve its goals in the modernization of the city’s legal system.

These diverse factors influenced not only the jurisprudential process in Jerusalem, but also the physical and administrative structure of the court and its personnel, including the justices’ selection process. Following the Tanzimat reforms, justices in most Islamic courts issued rulings on matrimonial and family relations and on waqf administration (the endowment of properties for religious and social causes). However, as discussed above, this was not the case in Jerusalem.   

One of the book’s main weaknesses is that Barakat devotes much attention mostly to the historical and chronological description of Islamic jurisprudence and the Islamic court in Ottoman Jerusalem. In fact, the book’s contribution to the existing historical research in this field is not very significant. Barakat does not provide extensive and precise data regarding jurisprudence and rulings in Ottoman Jerusalem. In addition, his comparisons between different courts are too brief and insufficient in light of the study’s objectives.

The contribution of this book to the study of Islamic jurisprudence in general, and to the study of Islamic jurisprudence and rulings in Ottoman Jerusalem in particular, is negligible. Barakat avoids a critical examination of the development of jurisprudence and rulings in Jerusalem, particularly in the Ottoman period. In addition, while acquainting the reader with the history of Islamic jurisprudence in Ottoman Jerusalem and the history of other Islamic courts, there is no attempt to analyze these courts’ rulings.

Furthermore, Barakat underestimates the importance of analyzing the behavioral norms of judges, scholars, muftis, junior officials, and interpreters in the court, and of civilians, including protected persons, appealing to the court to uphold justice and the law. An explanation of these behavioral norms could have shed light on political and social life in Ottoman Jerusalem and contributed to the research in this emergent field.

The book’s list of secondary sources written in foreign languages is meager and outdated. The history of Islamic jurisprudence in Palestine and specifically in Jerusalem during the Ottoman period has been amply studied. The research literature includes a number of prominent works on the development of jurisprudence and rulings in Jerusalem during the Tanzimat period, a discussion of the influence of various institutions on the development of religious law, and a study of the jurisprudential status of Jews in Ottoman Jerusalem.

The book boasts 19 appendices, 193 pages in total. These appendices mostly consist of lists of personnel arranged by name, year of appointment, and/or year of death, according to both the Hijri and the Gregorian calendars. These lists include the names of judges from the Hanafi, Maliki, Shafi’i, and Hanbali schools, and the names of various functionaries, including interpreters, at the courts in Jerusalem, Ramle, Istanbul, and elsewhere.

Although the many lists arranged in simple tables in the appendices provide abundant information, some of them are irrelevant to the book’s contents. Their contribution to this research is thus questionable. In addition, many lists appear in previous studies. This is not unethical, yet it seems unnecessary to encumber the reader with numerous lists that have already been published elsewhere, and whose contribution to the book’s contents is negligible. Regrettably, Barakat did not include in the appendices historical certificates or documents taken from private collections and mentioned, in full or in part, in the bibliography. Such documents could have enriched the book, making its contribution to the research field significantly higher.

In addition, the book contains formal and technical defects. The responsibility for these defects does not lie entirely with the author but rather with the book’s editors. There are inconsistencies in the references throughout the text, making it difficult for the reader to track sources. The bibliography lacks uniformity and consistency and at times even lacks necessary details. Notably, one of the main roles of a bibliography is to enable readers and/or potential scholars to locate more easily the sources on which the work is based. Insufficient bibliographical details thus limit the study’s contribution to the general field of research. The partial list of sources in this book makes it difficult for readers to learn more about the subject, which further detracts from the study’s scholarly contribution.

Following are three prominent examples. First, the bibliography lacks detailed information regarding =the articles published in The Journal of the Palestine Oriental Society, noting only the main source. This is highly regrettable, since it is unethical and unappreciative of the work of other scholars. Furthermore, it prevents readers interested in the history of Jerusalem, and particularly in the development of Muslim jurisprudence in the city at various times under Muslim rule, from locating the relevant studies published in this periodical. This omission is repeated several times in the bibliography—for example in the improper bibliographical reference to articles and reports taken from the newspaper al-Jarida al-Rasmia al-Urdania (الجريدة الرسمية الأردنية) .

The second example involves the bibliographic listing of sources in the Arabic language. In some cases, the source’s year of publication appears in full, according to both the Hijri and the Gregorian calendars. Elsewhere the year appears only according to either the Hijri or the Gregorian calendar, and there are even sources for which no year of publication is mentioned. If the year of publication is unknown, the scholar is obliged to explicitly state this important fact. Additionally, the publisher’s name or place (city and/or state) is sometimes missing.

The third example is the inadequate citing of internet links, for which no date of access is mentioned. Although many primary and secondary sources are available online and accessible to all, inadequate bibliographical citations of these sources prevent access to them. In addition, some of the web links are taken from non-academic sites. These omissions join other bibliographic errors that are beyond the scope of this review.

In conclusion, Barakat’s book can be classified as belonging to the field of historical studies, since it offers abundant information on the subject under discussion for the lay public, students, and scholars proficient in Arabic. The study describes the development of Islamic jurisprudence and rulings in Ottoman Jerusalem in historical terms, as well as the development of jurisprudence in other provinces under Ottoman rule. Barakat’s chronological study also presents prominent figures and their periods of activity in the Jerusalem Islamic court and outside it. Despite the omissions described above, the book should not be underestimated as it provides a wealth of information for readers seeking to learn about Muslim legal culture in Jerusalem during the Ottoman period. Its appendices can serve students and other scholars as good primary sources for future research. The book is informative for all those interested in Islamic jurisprudence and rulings in Ottoman Jerusalem.

Related Articles

Read more from this issue
Silence is Golden