Waqf and Legislative Sovereignty in the Early Modern Ottoman Empire

Over the course of the sixteenth and early seventeenth centuries, sultans and their supporters maintained that the Ottoman sultan should be accorded an unprecedented scope of legislative authority over the land law. Successive sultanic administrations in these years increasingly rethought the relationship between the sultan, the land and the community in terms of waqf (endowment). Examining sultanic firmans, fetvas issued by the Ottoman Şeyh’ül-Islams, and the two works of Ahkam al-Awqaf composed by al-Khassaf and al-Ray, I will demonstrate that sultanic legislation on treasury land increasingly conformed to the Hanafi law of waqf and that the sultan’s power to legislate on the land approximated the powers that the mütevelli (supervisor) held over waqf property.

In consequence, the resulting expansion of the sultan’s legal powers received a precise juridical underpinning. However, the sultan’s newly augmented legislative authority was not conceived as arbitrary: just as it was broadened through juridical analogy, it was also bounded by the same analogy. Even in the areas where he could legislate largely at his discretion and overturn laws of preceding sultans, there were standards of public interest that sultanic legislation was expected to meet. In other words, this development fits neither with a politics of Oriental despotism nor that of a theocratic law resistant to incursions of temporal authority.

The Ottoman effort to delineate the scope of the sultan’s legislative authority and its theoretical foundations has much in common with other visions of legal sovereignty emerging across Eurasia in the same period, and I will contend that the Ottoman example adds a new dimension to the broader historical conversation about the ‘divine’ origins of the sovereign state.