Order in the Courts: Ebussuud Efendi's Judges Protocol and Ottoman Legal Documentation

A commonplace among Ottomanists holds that Ebussuud, who served as the Ottoman chief jurist from 1545 to 1574, brought Islamic sacred law and Turco-Mongol secular law into a sustainable harmony. Introduced by later Ottoman jurists and perpetuated by an early generation of Orientalists, this idea has been reappraised in the last several decades by noted and capable scholars. The arguments among this last group have generally fallen somewhere on a sliding scale of the relative predominance of religious and secular element in the Ottoman legal system. Put in the broadest terms, some scholars see Ottoman law as an essentially secular law, which Ebussuud and others brought within the fold of sacred law, while others see it the other way around.

This paper enters and critiques this debate by analyzing a short work by Ebussuud called The Judge's Protocol. This Arabic treatise aimed at bringing consistency to judicial practice by instructing judges throughout the Ottoman realm on how to draft a variety of instruments essential to court practice. I first give a detailed description of the work and then critique the debate on Ottoman legal harmonization. My core argument is that this debate, while producing invaluable insights into the Ottoman legal system, is wrongheaded. Wittingly or not, it presumes a metaphysical opposition between religious and secular law and sees in ideological terms what is often a mundane process of enacting a principled and workable legal system. Not all moves by Ottoman jurists can be adequately explained in the unimaginative language of sacred versus secular. By taking us into the humdrum everyday business of legal practice, Ebussuud's treatise reminds us that while he desired to bring regularity to the imperial courts, this is perhaps more a basic aim of a functioning legal system than a cynical feature of empire building.