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Cannibalism as highlighted by a case from the ottoman law court of Sofia,

1027/1618

Article  in  Acta Orientalia · September 2011

DOI: 10.1556/AOrient.64.2011.3.3

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 Acta Orientalia Academiae Scientiarum Hung. Volume 64 (3), 287 – 303 (2011)
DOI: 10.1556/AOrient.64.2011.3.3

CANNIBALISM AS HIGHLIGHTED BY A CASE FROM THE

OTTOMAN LAW COURT OF SOFIA, 1027/1618
RECEP ÇIĞDEM

Faculty of Theology, The University of Harran

Osmanbey Kampüsü, Şanlıurfa, 63300, Turkey
e-mail: recepcigdem@yahoo.co.uk

This is a study of cannibalism in the light of a case from the Ottoman law court of Sofia. To give
the reader a historical background, first a short history of cannibalism will be given, then the ap-
proach of the Muslim jurists to the relation between the sanctity of human flesh and its consump-
tion during the condition of dire necessity will be investigated. This article will hopefully contrib-
ute to a better understanding of the rare case of cannibalism in Islamic environment.
Key words: Cannibalism, Muslim law, crime, sexual intercourse, slaughter of children, court of law,
Sofia.

Introduction

Based on a record of the Ottoman Law Court of Sofia from 1027/1618, this article
studies cannibalism. Since this is a study of a special court document, the reader
should not expect either the full legal details discussed in the juristic texts or the
social repercussions of cannibalism.
To begin with, cannibalism is “the Spanish name for the Carib people in the
Lesser Antilles, a West Indies tribe, well known for their practice of cannibalism”
(Warren 1979). Cannibal is defined as “a person who eats human flesh, or an animal
which eats the flesh of animals of its own type” (Procter 1995, p. 189; Crowther
1999, p. 163). It is suggested that killing a human for blood is to be called ‘homicidal
cannibalism’ whereas eating the flesh of a dead person is to be named ‘necro-canni-
balism’.
Some archaeologists argue that the practice of cannibalism may have occurred
among human beings as early as 800,000 years ago. In their view, the Neanderthals,

0001-6446 / $ 20.00 © 2011 Akadémiai Kiadó, Budapest

288 RECEP ÇIĞDEM

the Aztec of Mexico and the people of Fiji were the ones who practised it (Gibbons
1997, pp. 635– 637).
Cannibalism during the siege of Samaria is reported by the Torah:
“And there was a great famine in Samaria; and, behold, they besieged
it, until an ass’s head was sold for fourscore pieces of silver, and the
fourth part of a kab of dove’s dung for five pieces of silver. And as the
king of Israel was passing by upon the wall, there cried a woman unto
him, saying: ‘Help, my lord, O king.’ And he said: ‘If the Lord do not
help thee, whence shall I help thee? out of the threshing floor, or out of
the winepress?’ And the king said unto her: ‘What aileth thee?’ And she
answered: ‘This woman said unto me: Give thy son, that we may eat
him to-day, and we will eat my son to-morrow. So we boiled my son,
and did eat him; and I said unto her on the next day: Give thy son, that
we may eat him; and she hath hid her son.’ And it came to pass, when
the king heard the words of the woman, that he rent his clothes – now
he was passing by upon the wall – and the people looked, and, behold,
he had sackcloth within upon his flesh.” (The Holy Bible 1952, p. 330)
Cannibalism is also reported during the battle of Uhud in 625 between the
Muslims and the Quraish unbelievers. Historians report that when Hamza b. Abdul-
muttalib, the uncle of the Prophet Muhammad, was killed by a slave called Vahshi,
his liver was chewed by Hind bt. Utba, the wife of Abu Sufyan b. Harb who was one
of the commanders of the Quraish army (Ṭabarī 1979, vol. 2, p. 159).
It has also been reported that cannibalism took place during the First Crusade,
as Crusaders fed on the bodies of their dead opponents following the Siege of Ma‘ar-
rat al-Nu‘man (Amin 1984).
There are claims that cannibalism took place during the famine of Ukraine in
World War II. The Guardian quotes Mrs Matus: “All I can remember about the win-
ter is hunger, bombs and cold. When I walked the streets, the dead were everywhere;
no one to clear the bodies and no dogs, they had all been eaten.”1
Some anthropologists maintain that human body parts were used for medica-
tion in mediaeval Europe. For instance, Salisbury writes: ‘Use of medicines made
from blood and other human body parts was widespread in Europe through the 17th
century. Europeans of the period consumed fresh blood as a cure for epilepsy and
substances from various body parts to treat a variety of diseases, including arthritis,
reproductive difficulties, sciatica, warts and skin blemishes. A primary source for this
material was the bodies of executed criminals’ (Salisbury 2001). It is reported that
many Egyptian mummies preserved in bitumen were ground up and sold as medi-
cine. On this, Budge states: “In the year 1564 a physician called Guy de la Fontaine
made an attempt to see the stock of mummies of the chief merchant of mummies at
Alexandria [Egypt], and he discovered that they were made from the bodies of slaves
and others who had died from the most loathsome diseases” (Wallis 2010).

1
The Guardian, 25 November 2001.
Acta Orient. Hung. 64, 2011
 CANNIBALISM AS HIGHLIGHTED BY A CASE FROM THE OTTOMAN LAW COURT OF SOFIA 289

Cannibalism was condemned by some religious authorities and by some reli-

gious texts. Salisbury reports that “in the 16th century, Pope Innocent IV declared
cannibalism a sin deserving to be punished by Christians through force of arms”
(Salisbury 2001).
Qur’an depicts eating of the flesh of dead person as abhorring: “O ye who
believe! Avoid suspicion as much (as possible): for suspicion in some cases is a sin:
and spy not on each other, nor speak ill of each other behind their backs. Would any
of you like to eat the flesh of his dead brother? Nay, ye would abhor it … But fear
Allah, for Allah is Oft-Returning, Most Merciful” (Qur’an, 49/12). On the comment
of this verse, Jassās (d. 370/980) states that eating of the flesh of human being is
haram/forbidden just as the gossip is (Jassās 1985, vol. 5, p. 291). Commenting on
this verse (Fīrūzābādī 1979, vol. 6, p. 53), Ibn ‘Abbās (d. 68/687) derives a conclu-
sion that eating of the flesh of a dead person is ḥaram unless there is ḍarūra (neces-
sity).2
In the following statement attributed to the prophet Muhammad, he, in line
with the statement of Qur’an, described the slander and disgracing the honour of
people as consumption of their flesh: “Anas narrated that the Messenger of Allah
said, «When I was ascended to heaven, I passed by a people who had copper nails
with which they scratched their faces and chests, and I said, ‘O Gabriel, who are
these?’ He said, ‘These are those who used to eat other people’s flesh and attack their
honour’»” (Khāzīn 1979, vol. 6, p. 53; Abū Dāwūd 1988, vol. 2, p. 686).
Now I would like to give several legal cases about cannibalism. Unlike the
view of some Muslim jurists such as Shāfi‘ (d. 204/819) who justify that necessity
establishes a defence against a charge of murder in certain conditions,3 the following
English case of R. v. Dudley and Stephens (1884) established a precedent that neces-
sity is no defence against a charge of murder. In this case, four crew members of an
English yacht, the Mignonette, were cast away in a storm. After several days, one of
the crew fell unconscious and the others killed him and ate him. The three survivors
were rescued and were found guilty of murder (Simpson 1984).

2
It is defined as an occurrence that one cannot overcome unless by the perpetration of an im-
permissible thing to be therefore permissible. Al-Khurashī defines ḍarūra / muzḍarr as ‘a condition
in which he [the man] fears that he is going to perish. It is not stipulated that that he is to reach a
condition in which he will be on the verge of death; this is because eating does not help at that con-
dition. (An yakhāfa ‘alā nafsihī al-halāk. Walā yushtaratu an yasila ilā hālin yushrifu fīhā ‘alā al-
mawt, fa inna al-akla hīnaizin lā yufīduhū.) (Al-Khurashī 1900, vol. 3, p. 28; ‘Adawī 1900, vol. 3,
p. 28; Jurjānī 1983, pp. 137 – 138. For more, see Al-Shirbīnī 1958, vol. 4, pp. 306 – 307.)
3
There are cases which establish necessity as defense against a charge of murder. The fol-
lowing is such a case: “In the early seventeenth century, seven Englishmen embarked on an over-
night voyage from Saint Christopher, but were blown out to sea and lost for 17 days. During this
time, starving, they cast lots to see who would sacrifice their own life for the others. The lot fell to
the man who had suggested the scheme and he consented to his subsequent killing. His body sus-
tained the rest until they made their way to Saint Martin. They were returned to Saint Christopher
where they were put on trial for homicide. The judge pardoned them, their crime being washed
away by inevitable necessity.” (Simpson 1984.)
Acta Orient. Hung. 64, 2011
290 RECEP ÇIĞDEM

In other two cases, Japanese soldiers were indicted for killing and consuming
Americans. To quote Welch, “Lieutenant General Joshio Tachibana, Imperial Japa-
nese Army, and 11 other Japanese military personnel were tried for the beheadings of
two American airmen in August, 1944, on Chichi Jima in the Bonin Islands. They
were beheaded on Tachibana’s orders. One of the executed airmen, a U.S. Navy ra-
dioman third class, was dissected and his “flesh and viscera” eaten by Japanese mili-
tary personnel. The U.S. also tried Vice Admiral Mori and a Major Matoba for mur-
der in the deaths of five U.S. airmen, in February, 1945. Major Matoba confessed to
cannibalism. However, military and international law had no provisions for punish-
ment for cannibalism per se. They were accused of murder and prevention of honour-
able burial” (Welch 2002).
Some newspapers reported a horrifying cannibalism case in Ankara. As re-
ported by Zaman on 17 September 2007, a man named Özgür Dengiz was captured
in Ankara after killing and eating a man. It reports that in his confession, he said:
“I adore the taste of human blood and flesh. I chatted for a short time with Er (the
victim), who was drinking alcohol in a van at the Mamak Dump, and I took out my
gun and shot him twice in the head; then I cut the corpse into pieces. I tasted his flesh
at the scene of murder. It had a nice taste, so I decided to take some with me so that I
could eat it later.” He further said in his confession: “I attacked several other people
with the intention of murdering them and eating their flesh. I killed Sedat in Erzurum
on June 5, but could not taste his flesh as there were people around. Then I met
Abbas İnan at the Mamak Dump on August 9, he was alone. I shot him eight times in
the head and stomach but he succeeded in escaping. I would also have eaten him if
he hadn’t run away.”4 He was sentenced to twice heavy life imprisonment on 12 June
2008 by the 7th Ankara criminal court.5
Lastly, a very similar case to that in our document is the one which took place
in Russia on 14 November 2009.6 As reported by the Moscow Times, “Police have
arrested three homeless people suspected of eating a 25-year-old man they had butch-
ered and selling other pieces of the corpse to a Perm kiosk offering shashlik/kebab.”7

4
http://www.todayszaman.com/newsDetail_getNewsById.action?load=detay&link=122330.
5
http://www.ankarahaber.com/news_detail.php?id=13765.
6
The following case was reported by Murray: “Two men in the Russian city of Perm have
admitted to police that they killed their older brother and ate parts of his body, which had been kept
for months in a refrigerator. Why, you’d likely ask? One of the brother’s told police he had fought
his older brother and killed him because of grudge over a 10-year prison sentence. The older sibling
had reported his brother’s role in a murder to police, it seems. Police say they became suspicious
when the brother identified as Rafis was reported missing and then they found his skeleton buried in
the garden. The rest of him was in the fridge. Officials said the brothers had decided to eat the evi-
dence so that they wouldn’t have to go back to jail.” (http://startelegram.typepad.com/crime_time/
cannibalism)
7
The Moscow Times. It is reported that “Sasha Spesivtsev, 27, killed at least 19 street
children who he saw as the detritus of society. The unemployed black marketer would lure his
homeless victims from the streets and local train stations in the Siberian town of Novokuznetsk to
his home where, with the help of his mother, he killed and ate them.” For more cases see
http://www.mayhem. net/ Crime/ukraine.html.
Acta Orient. Hung. 64, 2011
 CANNIBALISM AS HIGHLIGHTED BY A CASE FROM THE OTTOMAN LAW COURT OF SOFIA 291

As for the juristic principles related to the consumption of human flesh, it is

worth underlying that scholars have different views.8 To begin with, Ḥanafīs hold
that human flesh is not to be consumed at any condition. To quote a legal text:
“A person fears that he is going to die because of starvation and he is not able to find
a dead animal, and another person says to him, cut off my hand and eat it, it is not
ḥalāl/licit. This is because the flesh of human being is not ḥalāl even in the time of
necessity because of human sanctity’ (Ibn Bazzāz 1986, vol. 6, p. 365). To quote Ibn
‘Ābidīn (d. 1252/1836), “If one says to another: cut my hand and eat it, then cutting
is impermissible,9 because it is not permissible to eat man’s flesh even in dire neces-
sity due to the principle of human sanctity” (Ibn ‘Ābidīn 1984, vol. 6, p. 338). It is
also not allowed to cut off his own flesh to eat it (Shaikh Nizām al-Dīn et al. 1986,
vol. 5, p. 338; Ibn Bazzāz 1986, vol. 6, p. 366).
Like Ḥanafī, Mālikīs maintain that dire necessity or starvation does not make
the consumption of human flesh ḥalāl.10 After reporting the view of Mālikīs that it is
not allowed for the person under starvation to consume the human flesh even if he
certainly knows that he is going to die, Ibn al-‘Arabī (d. 543/1148) gives his opinion
as “in my view, he is not to consume the human flesh unless it is certain that it will
save and maintain his life”. By this Ibn al-‘Arabī, a Mālikī scholar, departed from the
common view of Mālikīs (Ibn al-Arabī, no date, vol. 1, p. 58; Qurtubī 1965, vol. 2,
p. 229).
Ḥanbalīs have the opinion that a person is not allowed to eat his own flesh
because of dire necessity. Furthermore, the consumption of the flesh of a diseased
protected man (ma‘sūm al-dam) such as Muslim or dhimmī is not allowed.11 How-
ever, they allow the consumption of a corpse belonging to an unprotected man

18
The Muslim jurists maintain that a man is not allowed to murder ma‘sum al-dam under
coercion. They hold that if a man is coerced under the threat of murder or cutting of an organ, to cut
off one of the organs of a man or to murder him he is not allowed to do so. If he does so he faces
retaliation in the view of Zufar (d. 158/775). According to Abū Ḥanifa, the one who forced will
face the retaliation. Abū Yūsuf maintains that neither faces retaliation, but the one who applied the
coercive power needs to pay the diya. According to Shāfi‘ī (d. 204/819), Mālik (d. 179/785) and
Aḥmad (d. 241/855) both face retaliation. In other words, the murderer and the user of the coercive
power will have to be retaliated. (Damad efendi, 1316, vol. 2, p. 433; ‘Alā’uddīn 1316, vol. 2,
p. 433; al-Shirbīnī 1958, vol. 4, pp. 9 – 10; Al-Marghinānī 1971, vol. 3, pp. 276 – 277; Ibn ‘Ābidīn
1984, vol. 6, pp. 135 – 136, 532 – 534; Ibn Qudamā, 1992, vol. 9, pp. 331 – 332; Ibn Rushd, no date,
vol. 2, pp. 296 – 297; Dussūqī, no date, vol. 4, p. 244.)
19
Cutting an organ from a living person for his treatment is permissible. Ibn ‘Ābidīn states,
‘if one man says to another ‘cut off my hand’ [and then the other man does so], if it is made for the
purpose of treatment, like the case when his hand is afflicted by gangrene, then there is no harm in it
[the cutting], but if the purpose is other than treatment, then it is impermissible’ (Ibn ‘Ābidīn 1984,
vol. 6, p. 548).
10
Khurashī states that ‘there is no difference between the corpse of a Muslim and of a non-
Muslim about its prohibition’ (Khurashī 1900, vol. 3, pp. 28 – 29).
11
If a starving person kills another Muslim or dhimmī to eat his flesh, he faces retaliation
(al-Shirbīnī 1958, vol. 4, pp. 9 – 10; Ibn Qudamā 1992, vol. 9, pp. 331 – 332).
Acta Orient. Hung. 64, 2011
292 RECEP ÇIĞDEM

(mubāh al-dam) such as a ḥarbī.12 They go further by giving way and letting the
starving person kill another mubāh al-dam in order to end his starvation (Ibn Quda-
mā 1992, vol. 11, pp. 80–81).
The most liberal view is attributed to the Shāfi’īs. They let the person under
dire necessity consume the flesh of a dead person without reservation (Muslim or
non-Muslim).13 But it is to be consumed raw and not to be cooked. In addition, they
allow the person under dire necessity to murder certain human beings such as a con-
victed murderer or a ḥarbī in order to save his own life (Al-Shirbīnī 1958, vol. 4, pp.
307– 309; Nawawī 1958, vol. 9, p. 41). In other words, they approve of homicidal
cannibalism.
As regards a person driven by dire necessity benefitting from his own body,
al-Nawawī (d. 676/1277) states two views; the first one is held by some jurists who
allow it on the basis that it brings life to a man through an organ, and so it is per-
missible. The second one is held by some other Shāfi’ī jurists who say that such mat-
ter is impermissible, because if an organ is cut, then the risks endangering the patient
are greater (Nawawī 1958, vol. 9, p. 43).
Having summed up the rules governing the consumption of human flesh in
dire necessity, let us now examine our document.
The translation of the original case reads as follows:14
Cafer, who is actively executing the duty of Subaşı15 (Police) in the pro-
tected Sofia, summoned the dhimmī 16 Volka, the son of Köse, to the
law court and brought a case against him [stating]:
‘The aforesaid Volka makes mischief. He perverts and provokes
and has sexual intercourse with many women of the Muslims. He drags
the little children of some people from the road into his house and
slaughters them and sells them/their flesh. Furthermore, he hurts his
neighbours by debauching in his house with many bandits. I request
that he should be interrogated and should be punished in accordance
with the noble sharī ‘a.’
After interrogation, the aforesaid Volka replied with denial.
When evidence conformable to his claim was sought from the
aforesaid Subaşı Cafer, among upright Muslims, and reliable Monothe-
ists, the pride of the Imams, the Imam of the village Hidazi, Ali Çelebi,

12
Ḥarbī is a non-Muslim dwelling in the dār al-ḥarb (non-Muslim territory). For further
discussion on the definition of these two technical terms, see Asmal (1998, pp. 293 – 312).
13
Nawawī justifies this by saying that the inviolability of the living man is more pressing
than that of the dead and the harms ensuing from eating man’s flesh are less than those entailed by
his death (Nawawī 1958, vol. 9, pp. 41 – 43).
14
Sofia, St. Cyril and Methodius National Library, S1bis, 34A/1, p. 267/1.
15
A subaşı executed several functions, including that of night guard and police (Pakalın
1954, vol. 3, pp. 259 – 261; Sertoğlu 1958, p. 298; Bayerle 1997, p. 238).
16
This refers to a non-Muslim who permanently resides under a Muslim sovereignty and
enjoys protection of life and property in return for payment of the poll tax (Imber 1997, p. 275).
Acta Orient. Hung. 64, 2011
 CANNIBALISM AS HIGHLIGHTED BY A CASE FROM THE OTTOMAN LAW COURT OF SOFIA 293

and from Perpence, Mustafa bey racil17 were present in the session of
the noble court. They bore legal witness, stating/admitting to:
‘The aforesaid Volka perverts and provokes and has sexual inter-
course with the women of the Muslims and drags the little children of
Muslims who are passing by the road into his house and slaughters
them and [sells] their flesh in the market.’
When they bore legal witness, their testimony was found ac-
ceptable.
Great multitude of (cem‘u gafīr) and great number of (cem‘u ke-
sīr) reliable persons, whose statements are sound, bore legal witness
stating that he foments corruption in the world (sa‘y bi al-fasād fi al-
ard)18 and it is an obligation that he should be suppressed and it is
necessary that he should be removed.
Because of this, this entry, which records the statements above,
has been given to the hand of Ömer çavuş, the pride of the army, who is
presently the security officer, so that he is to be punished (hakkından
gelinmek içün).
[This was] written in the middle of Muharram al-Haram 1027
[12.01.1618].
Shuhūd al-hāl: Kabasakal Hasan Çavuş, Dergāh-ı āli (the Exalted
Porte), Ömer Çavuş, Nazır/Superintendant, Ömer efendi, Imam, Musta-
fa bey racil from Percenpe, Mahmut beşe racil, Bekir Muhzır,19 Mehmet
bey racil, Abdurrahman effendi, Musli çelebi, scribe, Yusuf b. Abdul-
lah, Muhzır.

17
Jennings translates ‘racil’ as ‘soldier’ without further definition. However, it seems to me
that it is the synonym of beşe referring to the Janissary. As for beşe, according to Zilfī (1997), “it re-
fers to an affiliation ‘(of some indeterminate kind)’ with the soldiery or guardsmen units of the Em-
pire”. Racil also refers to the foot soldiers. To quote Qur’an 8: 41 ‘And know that out of all the
booty that ye may acquire (in war), a fifth share is assigned to Allah, – and to the Messenger, and to
near relatives, orphans, the needy, and the wayfarer, – if ye do believe in Allah and in the revelation
We sent down to Our Servant on the Day of Discrimination, – the Day of the meeting of the two
forces. For Allah hath power over all things.’ One of the fifth of booty is given to the above-
mentioned persons. Four of the fifth is divided as: two shares for the horse, one share for the rider
of the horse and one share for the racil (warrior on foot). (Pakalın 1954, vol. 1, p. 317; Sertoğlu
1958, p. 62; Shaikh Manṣūr 1962, vol. 4, p. 378, footnote 7; Jennings 1986, p. 137; Zilfī 1997, pp.
280, 294; Çiğdem, 2001, p. 46.)
18
This reminds us of the following Qur’anic verse: “The punishment of those who wage
war against Allah and His Messenger, and strive with might and main for mischief through the land
is: execution, or crucifixion, or the cutting off of hands and feet from opposite sides, or exile from
the land: that is their disgrace in this world, and a heavy punishment is theirs in the Hereafter.”
Qur’an 5: 33.
19
Muhzırs were charged with summoning people to the court. A case from Hasköy
registers provided by Heyd in which “the Muhzır of the court administered the strokes” implies that
they were also responsible for executing some punishments (Heyd 1973, pp. 236, 272 (footnote);
Jennings 1978, p. 151; Bayındır 1980, p. 81; Akgündüz et al. 1998, vol. 1, p. 72).
Acta Orient. Hung. 64, 2011
294 RECEP ÇIĞDEM

In this case, a dhimmī called Volka was summoned to the court by the security
officer named Cafer. The suspect was indicted with two serious crimes. The first ac-
cusation was that he got used to pervert and know carnally many women of the Mus-
lims. The word ‘many’ indicates that it became his habitual activity and so was a se-
rious crime. The second charge involved a horrifying activity of dragging children
into his house and slaughtering them and selling their flesh in the market. The court
was also told that he was hurting his neighbours by debauching in his house with the
bandits. After the charges had been put forth by the security officer, the suspect was
interrogated. He replied with denial. Following the procedure of trial, the judge
demanded evidence from the security officer. Firstly, two men testified against the
suspect and corroborated that he was a mischief maker by sexually procuring and
carnally knowing Muslim women and slaughtering children and selling their flesh in
the market. Afterwards, many people requested that the suspect should be removed
from the society as he was a fomenter of corruption in the world, meaning that he
should be condemned to the capital punishment. Although the document does not
clearly specify the decision of the judge, the statement ‘hakkından gelinmek’ indicates
that the judge found him guilty of the charges and sentenced him to a heavy punish-
ment. The death warrant was handed over to a man from the army called Ömer çavuş
so that his punishment was executed. At this point, the entry comes to end.
Let us now analyse the document in detail, beginning with the question of how
the suspect was summoned and brought to the court. It is likely that there were com-
plaints about the criminal activities of the suspect and the residents of the quarter
demanded that he be arrested, contained and taken to the court for a trial. Upon their
complaint, the public security officers acted and they, then, presumably investigated
his criminal activities and gathered the evidences against him. Having done so, they
arrested him and brought him to the court for trial. This indicates that there was no
summary justice and that the criminals were not punished by the security officers as
claimed by some researchers such as Heyd. He claims that most criminal cases were
dealt with by the executive authorities without reference to the court. He writes:
“Since the very first centuries of Islam, therefore, criminal justice remained largely
outside the jurisdiction of the qadis. A wide range of crimes and misdemeanours was
examined and punished by the head of the police … In trying to elicit the truth, they
often used intimidation and even force. The punishment awarded may have been
effective, but it tended to be arbitrary and excessively severe” (Heyd 1973, p. 1).
Another researcher, Jennings (1978) does not confirm Heyd’s assertions. He states:
“Heyd’s picture of ‘intimidation and even force’, ‘effective’, but ‘arbitrary and exces-
sively severe’, certainly does not conform to my own evaluation.” Furthermore, Ger-
ber’s study of the Bursa sicills indicates that the subaşı acted as a prosecutor in some
criminal cases but that he did not punish the offenders himself (Gerber 1980, p. 239).
The assertions brought forth by Heyd might have been true for minor crimes
but not for major crimes such as fornication, homicide, etc. This case clearly indi-
cates that serious crimes were taken to the court by the security officers or the parties
involved and that they were dealt with by the judicial authorities (Çiğdem 2005, pp.
41–53). Heyd contradicts his statements above by stating: “Capital or severe corporal

Acta Orient. Hung. 64, 2011

 CANNIBALISM AS HIGHLIGHTED BY A CASE FROM THE OTTOMAN LAW COURT OF SOFIA 295

punishment is to be inflicted only after the offender has been duly tried and convicted
by the qadi, who issues a legal certificate (hüccet-i şer‘iye) to this effect to the execu-
tive officers (ehl-i ‘örf) and records the case in the register (sicill) of his court’ (Heyd
1973, p. 266). He further quotes a kanunnāme (legal code): “The local governor is
not to adjudicate in a trial instead of the qadi, and the subaşı must not carry out any
penalty not imposed by a qadi; if, after being warned, he goes on doing so, he will be
dismissed and even subjected to siyaset [capital or severe corporal] punishment’.20
This is in line with the kanunnāme of Sultan Suleiman (1520–1566): “The executive
officers (ehl-i ‘örf) shall not imprison and hurt any person unless [he is convicted] by
the qadi” (Heyd 1973, p. 127).
As for the charges directed against the suspect, one of the indictments was his
illegal sexual activity with Muslim women. This is technically called zinā. Since the
document does not give us the details, we do not know whether or not the women
involved in the sexual activity were single or married. In other words, it is not clear
whether or not the charge was related to fornication or adultery. It is however likely
that both were included in the charge as the word addressed to women was kadın
which covers both single and married women.
Zinā is defined as21 “intercourse of an adult man with a [living] woman in the
vagina without milk (marriage) or slave ownership or shubhat al-milk (existence of
suspicion of marriage) or ownership such as void (fāsid) marriage” (Marghinānī
1971, vol. 2, p. 100; al-Ḥalabī 1981, p. 189). Abū Hanīfa (d. 150/767) holds the view
that the zinā punishment is not applicable if sex is committed with a woman hired for
that purpose (Al-Sarakhsī 1989, vol. 5, p. 58). However, ta‘zir (discretionary punish-
ment) is applicable. Fornication can be established by four male eye witnesses who
testify that “we have seen him putting [his penis] into her vulva like a stylus in kohl
jar” (Marghinānī 1971, vol. 2, p. 95). In addition, the judge must direct some ques-
tions to the witnesses such as to what zinā is, in what manner have the parties com-
mitted it, where, at what time, and with whom (Marghinānī 1971, vol. 2, p. 95).
It can also be established by the confession of the adult and sane offender. It has to
be made four times in four different appearances in the presence of the judge. Such
confession can be withdrawn. It is also recommended that the judge should suggest
other possibilities such as “perhaps you have only kissed or touched her” (Marghinānī
1971, vol. 2, pp. 95–96).
As far as the punishment is concerned, it is stoning22 to death for the muhsān,
“who is free, sound in mind, adult, Muslim,23 married in a valid marriage, and had

20
He further states “A person unjustly subjected to severe corporal punishment, such as
amputation of the hand, by an executive officer can sue him and claim compensation (diya) from
him” (Heyd 1973, p. 266). For such a case brought against a subaşı see Çiğdem (2007, pp. 25 – 43).
21
For more on zinā see Çiğdem (2010, pp. 179 – 196).
22
The roots of this punishment can be found in Judaic tradition; see Old Testament, Deu-
teronomy 22: 21.
23
Abū Yūsuf maintains that Islam or being a Muslim is not a condition, as the Prophet
stoned two Jews who committed zinā (Ibn Humām 1970, vol. 5, pp. 238 – 239; Marghinānī 1971,
vol. 2, p. 98).
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296 RECEP ÇIĞDEM

intercourse while they were in these circumstances” (al-Ḥalabī 1981, p. 190). If they
are not muhsān but are free, such as an unmarried person, or a dhimmī, they are to be
scourged with one hundred stripes (Marghinānī 1971, vol. 2, pp. 97, 103).
In this case, since the suspect was a dhimmī, he could have gotten away with
his crime with 100 stripes if such crime was proved with the evidence of four eye-
witnesses. Since the accusation contained a habitual illegal sexual activity, it might
have not been classified simply as a zinā crime, but as one falling under the category
of ta‘zīr (Abdurraḥman b. Muḥammad 1857, vol. 35, p. 405; Marghinānī 1971, vol. 2,
pp. 102, 134) which is defined as a “crime which has no specified punishment in
sharī‘a” (al-Kāshānī 1982, vol. 7, p. 63). It is a crime either against the right of God
or against the right of an individual. A judge is entitled to sentence any criminal, re-
gardless of his sex, social status (free or slaves) or religious affiliation, to ta‘zīr at his
discretion (Damad efendi 1316, vol. 1, pp. 590 –591; al-Kāshānī 1982, vol. 7, pp.
3–4). It can appear in various degrees and forms from a harsh word to a capital pun-
ishment (Damad efendi 1316, vol. 1, p. 609; Ibn Humām 1970, vol. 5, p. 345; Heyd
1973, pp. 196, 271–275; Ibn ‘Ābidīn 1987, vol. 4, pp. 14–15, 62–63, 118. For more
see, ‘Alā’uddīn al-Tarablusī 1973). The statement of the judge in his decision
‘hakkından gelinmek’ indicates that the case was seen as falling under the category
of ta‘zīr. Heyd observed that this statement (hakkından gelinmek) amounted to ta‘zīr
punishment. He states: “Often found as synonyms of ta‘zīr are the vaguer terms
hakkından gelmek …” (Heyd 1973, p. 271). He continues: “To protect the public in-
terest … or the people … to preserve public order … and to give a deterrent example
to others … he [the sultan/the judge] may order the execution of such offenders ‘as
administrative punishment (siyāseten) or within the framework of his discretionary
powers (ta‘zīren)’” (Heyd 1973, p. 196).
The second accusation was the slaughter of children and selling their flesh in
the market. While the accusation of the officer/prosecutor did not specify the reli-
gious affiliation of the parents of the victimised children, the witnesses specified it by
stating ‘the little children of Muslims’. This might indicate that he had a grudge
against a certain group of people as he did not only have the sexual activities with the
women of the Muslims but also killed their unprotected children. This probably was
an extraordinary case and he was a psychic man and had social deviances and disor-
ders. In other words, he was psychologically sick. He might have also committed
such horrifying crimes against his counter religious believers but they did not find
their way to the court.
The document does not make it clear whether or not the accused consumed the
flesh of his victims. It is possible that he did so as he was socially disoriented man.
Since he sold the flesh of his victims in the market, it is almost certain that some
people consumed it and they were unaware of its being a human flesh. The document
does not give us a clue about the number of the victims. Is is however likely that it
was more than one as the prosecutor and the witnesses used a plural word to define
the victims by saying ‘the little children’.
The crime of slaughter is technically called jināya which corresponds to “any
prohibited act committed upon the person, which is called murder, or upon a part of

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 CANNIBALISM AS HIGHLIGHTED BY A CASE FROM THE OTTOMAN LAW COURT OF SOFIA 297

the body, which is termed wounding” (al-Babartī 1970, vol. 10, p. 203; Ibn Qudamā
1992, vol. 9, p. 319). In the view of Muslim jurists, jināya concerns ḥaqq al-‘ibād
(right of men), and so the victims themselves or their heirs (in case of murder) or
their agents respectively is expected to raise the issue in the court. Since jināya is
viewed as a right of a man, he is entitled to forgive (‘awf) the wrongdoer, letting him
get away with his crime.
Hanafi jurists classify jināya as ‘amd (deliberate intent), shibh al-‘amd (quasi-
deliberate intent), khatā (accidental homicide), ma ujriya majrā al-khatā (cases
assimilated to mistake) and qatl bī-sabab (indirect causation) (al-Ḥalabī 1981, p. 459).
While ‘amd signifies killing with a lethal weapon, shibh al-‘amd refers to an act of
homicide without a deadly instrument.24 Hanafī scholars differ on the definition of
lethal instrument. While in the view of Abū Hanīfa, drowning and strangling is shibh
al-‘amd, it is not so in the view of his disciples, Abū Yūsuf (d.182/798) and Muḥam-
mad al-Shaibāni (d.189/805). These scholars view drowning and strangling as ‘amd
(Al-Shirbīnī 1958, vol. 4, p. 8; Marghinānī 1971, vol. 4, pp. 158–159, 163; al-Ḥalabī
1981, p. 460; Ibn Qudamā 1992, vol. 9, pp. 323–324, 326–327). Deliberate homi-
cide (‘amd) entitles the walī al-dam (asaba – male relatives in the order of succes-
sion) (Marghinānī 1971, vol. 4, 162; al-Ḥalabī 1981, p. 460 margin note; Schacht 1964,
p. 184) to demand one of the following:
1. Qisās (retaliation) on the basis of maintaining equality.
2. Ṣulḥ (compromise) with the culprit for the blood money, for more, or for
less (Marghinānī 1971, vol. 4, p. 167). This option is only available if the culprit con-
sents to it (Marghinānī 1971, vol. 4, p. 158).
3. ‘Awf (pardoning the murderer) (Marghinānī 1971, vol. 4, pp. 158, 167– 168).
Here, the culprit can go free, unless the qadi turns to ta‘zir to punish him.
For retaliation to take place there must be equality between the killer and his
victim. In the view of Abū Hanīfa and Muḥammad, the grounds of equality are being
a human and being a permanent resident of a Muslim state, e.g., free vs. free and
slave; Muslim vs. dhimmī and vice versa (Marghinānī 1971, vol. 4, pp. 160, 166; al-
Ḥalabī 1981, pp. 459, 463; Ibn Rushd no date, vol. 2, p. 297). Abū Yūsuf (d.182/798)
puts only humanity into the basis of equality. For this reason, in his view, the mur-
derer of a musta’man (temporary resident of a Muslim state) is liable to qisās (Al-
Sarakhsī 1986, vol. 26, p. 133; Ibn Qudamā 1992, vol. 9, p. 343).
As for the outcome of shibh al-‘amd, it brings about (Bilmen 1969, vol. 3, p.
62; Marghinānī 1971, vol. 4, p. 159; al-Ḥalabī 1981, p. 458; Ibn Qudamā 1992, vol.
9, pp. 321–322, 338–339) the performance of kaffārat25 by the criminal and the
payment of the heavier blood-money (diya mughalladha)26 by his ‘āqila.27

24
Mālik does not accept this category and considers it as ‘amd. In his view, jināya is either
‘amd or khatā (mistake). (Ibn Qudamā 1992, vol. 9, pp. 321 – 322, 338 – 339; Ibn Rushd no date,
vol. 2, pp. 297 – 298.)
25
Kaffārat refers to manumission of a Muslim slave or fasting during two consecutive
months. (Marghinānī 1971, vol. 4, p. 177; Ibn Qudamā 1992, vol. 9, p. 39.)
26
Diya mughallada amounts to one hundred camels of a determined high quality. Normal
diya is one of the following; one hundred less valuable camels, one thousand dinars, ten thousand
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298 RECEP ÇIĞDEM

Jināya is established by two male eye-witnesses (Al-Shirbīnī 1958, vol. 4, p.

118; Ibn Qudamā 1992, vol. 10, p. 4), or by the confession of the murderer him-
self/herself (Al-Shirbīnī 1958, vol. 4, p. 118; Marghinānī 1971, vol. 3, p. 117, vol. 4,
p. 175; Ibn Qudamā 1992, vol. 10, pp. 39– 40; Ibn Rushd no date, vol. 2, p. 348).
Since the suspect was accused of murdering more than one child and selling
their meat in the market, the case was not seen as a normal jināya crime. The state-
ment ‘he fomented corruption in the world (sa‘y bi al-fasād fi al-ard)’ clearly under-
lines that the case was not viewed as a normal jināya crime. This is why the princi-
ples mentioned above were not followed. This is why we see neither the relatives of
the victimised children in the court nor the women who had sexual relations with the
suspect.
According to Hanafī law, if the murder becomes a habit of a man, he needs to
be sentenced to capital punishment and be removed from the society. To quote Mar-
ghinānī (d. 593/1196): “If he strangles [another] in a city more than once, he is to be
killed for [his crime], because he became the fomenter of corruption in the world
(sā‘iyan fi al-ard bi al-fasād)’, and so his evil is to be removed by the capital punish-
ment” (Damad efendi 1316, vol. 1, p. 631; ‘Alā’uddīn al-Haskafī 1316, vol. 1, p. 631;
Marghinānī 1971, vol. 2, p. 134; Shaikh Nizām al-Dīn 1986, vol. 2, pp. 167, 188; Ibn
‘Ābidīn 1987, vol. 4, pp. 14– 15, 62– 63, 118).28 Commenting on this paragraph, Ibn
Humām (d. 861/1457) states that this rule is to be applied to all similar crimes (Ibn
Humām 1970, vol. 5, p. 432). This means that if a crime becomes the habit of a
person, he needs to be sentenced to the capital punishment. To quote Heyd: “…Ac-
cording to some of these fetvas, people whose offences are not, according to the reli-
gious law, capital may yet be executed if it is proved, in accordance with the shari‘a,
that it is their constant habit (adet-i müstemirre) to commit such crimes. Such a ha-
bitual criminal was held to come into the category of sa‘i bi’l-fesād …” (Heyd 1973,
p. 195).
It is worth noting that the present multitude of people in the court and their
demand generally influenced the decision of the judge. This fact has also been ob-
served by Jennings, who writes: “In one special but not uncommon situation there
was a near equivalent to the precept of prosecution by the people, but it was de facto
as well as de jure prosecution by the people … As in all other suits, the accused had
the right to defend himself, but he did not often do so in such cases, for the weight of
such testimony was tantamount to conviction” (Jennings, 1979, p. 177).

————
dirhams, two hundred cows, one thousand sheep, or two hundred complete suit of clothes. The full
blood-money is required for the person, and for the loss of organs which exist singly e.g. tongue,
noise. The diya is paid in three yearly instalments (Marghinānī 1971, vol. 4, pp. 177 – 180).
27
‘Āqila is a group of people associated with the culprit. While Ottoman Shaikh al-Islām
Abū’s-su’ūd has the opinion that there was no ‘āqila in the Ottoman empire, another Ottoman jurist
al-Ḥalabī enumerates ‘āqila as: members of a garrison, the male members of his [offender’s] tribe,
the fellow workers in his craft or his confederates. If there is no ‘āqila, the public treasury pays the
diya on behalf of Muslim offender (al-Ḥalabī 1981, pp. 485 – 486; Imber 1997, p. 247).
28
For the Ottoman application of siyāsa punishments and the concept of sa‘y bi al-fasād,
see Mumcu (1963); Heyd (1973, pp. 195 – 207, 259 – 277); Çiğdem (2004, pp. 167 – 179).
Acta Orient. Hung. 64, 2011
 CANNIBALISM AS HIGHLIGHTED BY A CASE FROM THE OTTOMAN LAW COURT OF SOFIA 299

The procedure of trial which we have seen in this case follows the principles
of Hanafī law. As the legal texts put it, the plaintiff/prosecutor brought forward his
accusation, and the judge interrogates the defendant concerning the claim. If he ac-
knowledges it, the case comes to an end. If he denies it, as in this case, the judge asks
the plaintiff to produce his evidence, once he produced his evidence, the case is
completed and the judge issues his judgement (Halabi 1981, pp. 320–322).
The document does not make it clear whether or not the judgement of the qadi
was executed. However, the submittal of the death warrant to a person from the army
with the title of nazır (superintendant) (Ömer çavuş) suggests that the decision of the
judge was implemented and so the convicted was removed from the society forever
as requested by many people.29 This further indicates that the decision of the judge
was not submitted to the approval of the Sultan, which is in line with the following
provision of the penal code of Suleiman: “If according to the customary law it is
proved and evident that a person has committed a crime, he who serves as qadi shall
give a certificate (hüccet) [to that effect] to the executive officers (ehl-i ‘örf). In
accordance with that certificate, the executive officers shall hang the person who in-
curs hanging and cut off a limb of the person who incurs the cutting off of a limb. And
the qadi shall not prevent this and shall not cause the punishment to be postponed
[but] let the punishment be carried out at the place where the crime was committed”
(Heyd 1973, p. 118). This is however in contradiction with the claim of Heyd that
“… the result of their [qadis] investigation was to be submitted to the Sultan …”
(Heyd 1973, pp. 255– 256).
The presence of a man called Kabasakal Hasan Çavuş from Istanbul among
the shuhūd al-hāl suggests that the case was viewed as a serious criminal issue. The
title of the people who were recorded among the shuhūd al-hāl may also show the
seriousness of the crime. There were one çavuş, one imam, a religious leader of the
quarter, one scribe, two muhzırs and three racils.
As for the functions of the shuhūd al-hāl, Jennings maintains that they “were
concerned with the fair and effective functioning of the court … Each was in fact
lending his name to affirm that in his opinion the procedure of the qadi in that case
had been fair and just. Each became a potential witness to the procedure of the case
and to the decision of the court should any later disputes require such testimony”
(Jennings 1978, pp. 143 –144). My examination of the registers indicates that at least
some of the shuhūd al-hāl were familiar with the law and experts in judicial proce-
dures. It seems to me that the shuhūd al-hāl executed several functions. The most im-
portant of all was that they certified the authenticity of the document when its authen-
ticity was challenged. They also accompanied the clerk of the court in investigating
both criminal and civil disputes. In addition, they stood as witnesses in marriage cases,

29
Heyd states ‘Generally siyaset punishment is to be carried out by the executive officers
(ehl-i örf) such as subaşı or a voyvoda … a special commissioner of the Sultan’. He notes in the
footnote that often a çavuş of the Palace carried out this kind of punishment. Although Ömer, to
whom the death warrant in our case was delivered, had the title of çavuş, we do not know whether
he was sent by the Palace. However, as we have noted, there was one person from the Palace (Heyd
1973, pp. 228 – 229, 266, note 11).
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300 RECEP ÇIĞDEM

The original document of the Sofia Law Court, 1027/1618

(The St. St. Cyril and Methodius National Library, Sofia, Bulgaria, S1bis,
sheet 134A/1, page 267/1).

fulfilling the legal condition required for a valid marriage contract. The entries also
suggest that they were mediators between the contestants in resolving the matters
with a mutual agreement (sulh)” (Çiğdem 2001, pp. 85–86).

Conclusion

Some researchers argue that the practice of cannibalism may have occurred among
human beings for a variety of reasons and that cultural norm, famine or social devi-
ancy may have been the underlying causes of cannibalism. Others question the credi-
bility of reports of cannibalism arguing that it is a rhetorical device employed to es-
tablish perceived cultural superiority (Arens 1979). Our document, along with other

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 CANNIBALISM AS HIGHLIGHTED BY A CASE FROM THE OTTOMAN LAW COURT OF SOFIA 301

court cases from different countries and cultures, indicates that humans consumed the
flesh of other humans on the ground of famine or social deviancy.
As we have seen, while Hanafīs and Mālikīs objected to the legalisation of con-
sumption of human flesh at any condition including famine and starvation, Hanbalīs
allowed the consumption of the corpse of unprotected men and gave way to homicidal
cannibalism with certain conditions. Shāfi’īs, on the other hand, set forth the most
liberal view by allowing the consumption of the corpse of any man. Like Hanbalīs,
the Shāfi’īs approved of homicidal cannibalism with some conditions. In addition,
some Shāfi’ī jurists let the starving person to consume his own body parts in order to
save his whole life.
The examination of our case clearly indicates that the judge followed the due
process of law and the criminal was sentenced to capital punishment. This also shows
that the criminal cases were dealt with by the judicial authorities and there was no
intervention by the executive authorities. The document, however, is silent about the
background of the crime and its repercussions on the society.

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