Ergene, Evidence in Ottoman Courts, Oral and Written Documentation in Early-Modern Courts of

Evidence in Ottoman Courts: Oral and Written Documentation in Early-Modern Courts of
Islamic Law
Author(s): Boğaā A. Ergene
Source: Journal of the American Oriental Society, Vol. 124, No. 3 (Jul. - Sep., 2004), pp.
471-491
Published by: American Oriental Society
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Evidence in Ottoman Courts:
Oral and Written Documentation in
Early-Modern Courts of Islamic Law
BOAi A. ERGENE
UNIVERSITY OF VERMONT
I. INTRODUCTION
Pursuing the insights of Ignaz Goldziher and Snouck Hurgronje regar

Islamic legal doctrine and practice, it was perhaps Jeanette Wakin who f
to what she called the "ambiguous" status of unwritten documents in
legal doctrine, as crystallized in the formative period of the Islamic l
through tenth centuries), discouraged the use of written documents as
sequently, disregarded them as topics worthy of judicial elucidation,
ments in all aspects of their lives from the earliest times (Wakin 197
1970: 86).
Up until the 1990s, scholars identified this tension between "doctrine
important characteristic of Islamic law. Recently, however, Wael Hall
Johansen (1997) have demonstrated that legal doctrine could keep pace
in its treatment of written documents. Hallaq has argued in a recent art
compilers were sensitive to judicial practice and to the legal, economic
of the mundane world. Indeed they drew heavily on this reality by app
so-called model works actual documents treating a wide variety of
132).1 Similarly, Johansen concluded that the evidentiary rules applie
ments varied according to the importance of these documents and the p
different historical contexts. For example, jurists in the regions of B
which depended on long-distance commerce for their economic prosperi
the evidentiary functions of written contracts seriously, even before t
(Johansen 1997: 366-72).
But the discovery that legal doctrine could indeed recognize written documents as eviden-
tiary instruments does not tell us much about the purposes that these texts served in actual
legal processes, a topic that has yet to be explored adequately with reference to real-life sit-
uations and court cases. Most of what has been stated in the secondary literature about the
judicial status of written documents is derived from legal manuals and theoretical works on
procedural law, albeit with certain exceptions. Thanks to the efforts of Brinkley Messick and
Frank Vogel, we are better informed about the ways in which documents are used in modern
judicial contexts. We learn from their work that in Yemen and Saudi Arabia, written records
I am grateful to Iris Agmon, Febe Armanios, Beshara Doumani, Carter Findley, Patrick Hutton, Cemal Kafadar,
David Powers, Kristen Stilt, and Frank Vogel for their comments and criticisms. I also thank Julie Meisami for her
help and support in the process of publishing this article.
1. The shuriit literature provided notaries with legal models and formularies for bilateral contracts and other
types of written legal instruments, such as wills and endowments, to be used as templates for legal recognition.
Hallaq insists that "model shurtit works structurally and organically constitute an integral part of thefurti and adab
al-qadi manuals, which have been decried as abstract and theoretical by modern scholarship" (1995: 112).
Journal of the American Oriental Society 124.3 (2004) 471
472 Journal of the American Oriental Society 124.3 (2004)
are frequently presented to and accepted by Islamic courts as evidence (Messick 1993; Vogel
2000).
Unfortunately, we have no such studies for earlier periods, and the primary objective of
this article is to provide a first glimpse of evidential practices in pre-modem courts of law and
to demonstrate how written texts were used in these arenas. This, however, is easier said
than done, since we know far less about past judicial practices than we do about modern
ones. Unlike legal anthropologists, who visit modern courts and observe how litigants and
court officials utilize different forms of evidence,2 historians are limited by the scarcity of
court records (cf. Little 1981, and especially Little 1984: 1-18). It is no wonder that our
knowledge of legal practice in Islamic lands before the nineteenth century is still largely
based on the doctrinal works produced by new and old masters.
Fortunately, the Ottoman court records (sicils) constitute an exception to the rule. Sizeable
collections of these documents survive in the archives of Turkey, Syria, Lebanon, Egypt,
Greece, Bulgaria, and other successors of the Ottoman Empire, still waiting to be used for
research on Islamic legal practice.3 In this article, I explore a compilation of these records
from late seventeenth- and early eighteenth-century northern Anatolia, to examine the roles
that written documents played in court proceedings. In particular, I focus first on the summary
accounts of court proceedings and study how deeds, receipts, vouchers, legal-certificates, and
the like were used in the processes of litigation (section II). Later, I examine in detail the
copies of a few exemplary documents found in the sicils to understand how they are de-
signed, what kinds of information they provide about their subject matters and the people
who owned them, and what they leave out (section III). This exercise, I hope, will provide
some information about the legal culture in which these documents were prepared and what
was expected of them.
II. ORAL VERSUS WRITTEN IN THE COURT
Ottoman court records contain documents relating to the official respo

court. The multifunctional nature of the Ottoman judge-who was respons
ministration of his district and the execution of the state's orders and, at t
ligated to resolve local disputes and serve other judicial functions-may
quantity and variety of documents in the court registers. In a typical
records, we find documents drawn up in the local court by the judge, by o
cials, and by participating members of the community. These documents
summary accounts of the cases heard and adjudicated in the court, cop
records of inheritance, divorce cases, support after divorce, and guardian
the court records contain documents that were composed elsewhere and s
2. An impressive example of such work is Divorce Iranian Style (1998), a documentary film
and Ziba Mir-Hosseini, which provides a view of the actual operations of an Iranian divorc
Also see the contributions of Richard Antoun (1980 and 1990), Susan Hirsch (1998), A
Lawrence Rosen (1984, 1998, and 2000), and June Starr (1978).
3. I do not mean to imply that no one has attempted to use the Ottoman court records
Ottoman legal regime and practices, although the majority of sicil scholars focus on social, po
problems rather than judicial issues. Indeed, the contributions of Ronald Jennings (1975,
Gerber (1981 and 1994), and Leslie Peirce (1998a, 1998b, and 2003), among others, have been
exploiting the court records to understand better the Ottoman legal system. But it remains true th
to learn from the sicils about Ottoman legal history, and we are not even close to utilizing the
potential.
ERGENE: Evidence in Ottoman Courts 473
courts for fiscal, military, and administrative purposes, after

the sicil mainly for notarial reasons.
The claims and observations that I shall make in this article
tion of twenty-five volumes of court records from two north-
Kastamonu) in the seventeenth and eighteenth centuries.4 Thes
approximately 5,000 individual entries,5 in this section I will
disputes resolved in the court.6 It should be noted that these
mulaic narratives of the court proceedings: they not only omit
cesses but also conceal the interactions that took place betwee
court officials. Nevertheless, the court records constitute an ade
article since they specify the nature of the evidence that the l
in support of their claims and allegations.
Before I turn to what the sicils of Cankirl and Kastamonu tea
of documentation used in litigation, let me first briefly discus
ducted in these two courts. The court process was initiated by
plaintiff brought his case to the court, the judge was supposed
After the arrival of the defendant, the plaintiff was required t
ence of the defendant, and the defendant was invited to respon
fendant denied the plaintiff's claim without presenting an alte
dispute or without making a counter-accusation against the pla
to provide evidence for his claims. When he did so and if the
the case was decided in the plaintiff's favor without further
this is how most plaintiffs won their cases in 1ankiri and Kast
the defendant denied the plaintiff's claim by presenting an alte
which happened only rarely, then it was up to the defendant t
the plaintiff could not prove his claim or the defendant his co
given the chance to take an oath to verify the validity of his
courts were supposed to rule in favor of the oath-taking party
In Cankirl, plaintiffs usually supported their claims by pres
(as in thirty-three of the forty-five cases, seventy-three per
plaintiffs). In nine cases (twenty percent) defendants acknowl
plaintiffs' claims, and in five cases (eleven percent) plaintiffs
such as copies of contracts and warrants, which were almost alw
4. (ankin and Kastamonu were two subprovinces of the province of Anatol

and demographic characteristics of these locations is scarce. At the end of the
probably had a population of about 20-30,000 households. By the mid-eightee
a larger urban and administrative center than 1ankirl, although both subprovi
and commercial decline during the seventeenth century (Ergene 2003: chapter
5. Thirteen of these twenty-five volumes belong to the court of (ankin, and
from the Kastamonu court. The (ankln volumes span the period (with omi
Kastamonu volumes began in 1684 and constitute a continuous series until 1743
nine registers that cover this period. The twelve registers examined here are c
end of the sixty-year period (four registers for the period between 1684 and 1
1735-1743).
6. The thirteen (ankm registers contain seventy-three entries of adjudication
on the other hand, contain 442 such entries.
7. Oath-taking was allowed only in mu'amalat cases that involved contenti
ments, indebtedness, conflicts over inheritance, etc. (Beroje 1999: 209-19).
testimonies.8 Only in sixteen of the seventy-three cases reported in the court records (twenty-
two percent) were plaintiffs unable to produce any evidence to support their claims. In the
situations defendants managed to acquit themselves by taking oaths proclaiming their inno
cence. In ten cases, defendants denied the claims of plaintiffs and made counter-accusations
against them. By doing so, they implicitly accepted the burden of proof according to pr
cedural conventions. In eight of these cases, defendants succeeded in finding witnesses an
bringing them to court to support their counter-claims. They were unable to do so in on
two instances; in these cases, the courts ruled in favor of the plaintiffs after letting the
take an oath.
Like the Cankirl registers, the court records of Kastamonu confirm the importance of wit-
nesses in the litigation process. Plaintiffs in Kastamonu used witness testimony to document
their claims in 166 of 244 cases (sixty-eight percent) that were concluded in their favor.
Although this percentage is lower in cases resolved in favor of the defendants (ninety-seven
of 198 cases, or forty-eight percent), witness testimony appears to have been the most
popular form of evidence offered by the defendants. Oath-taking seems to have been the
second most popular form of evidence offered by the defendants in those cases that ended
in their favor (sixty-one cases, thirty-one percent). Plaintiffs, on the other hand, won their
cases by oath-taking in only eleven of the 244 cases (five percent).
Plaintiffs in Kastamonu benefited from defendants' admissions in thirty-one of 244 cases
(thirteen percent) and submitted written documentation in twenty-three cases (ten percent;
again, in these cases, written documentation was accompanied by witness testimony). In
turn, defendants used written documentation in twenty-seven of 198 cases that they won
(fourteen percent), most of which also contained witness testimony. In fourteen cases (seven
percent) they were able to force plaintiffs to acknowledge the validity of their responses
and counter-claims against the initial allegations in the court. Both plaintiffs and defendants
lost in court five times because they refused to take oaths to corroborate claims they had pre-
viously made in court. Finally, in nine cases found in favor of plaintiffs and in fifteen others
found in favor of defendants, we see no legal evidence except for the fetvas (legal opinions
of jurisconsults) submitted by the litigants to the court. This is unusual since, according to
established legal procedures, fetvas are not considered legitimate forms of evidence.
According to these statistics the use of written documents in the courts of (ankirl and
Kastamonu was infrequent. It may not come as a surprise that we find no written documents
used in any evidentiary capacity in trials conducted to impose corporal and capital punish-
ment ('uqibat), as these cases were, in jurisprudential terms, subject to higher standards of
proof (Johansen 1999a and Beroje 1999: 249-64 and passim).9 Yet the fact that even the
few "transaction" cases (mu'amalat) that involved written documentation also featured other
forms of evidence, in particular witness testimony, suggests that written documents served
limited evidentiary functions, if any at all. Summary-accounts of particular cases found in
the sicils corroborate this impression. Consider the following example:
After it was determined in court that the estate of the late Mustafa Aga bin Elhac Mehmed from
the quarter of Deveciler in Kastamonu should legally be divided among his paternal step-brothers,
ibrahim Aga and Mehmed Aga, his sister, Hadice, and his two wives, Rabia bint Elhac Ahmed
and A'ige bint Halil, the aforementioned ibrahim Aga brought to the court and sued the afore-
8. Virtually all litigants who submitted some sort of written documentation to the court also authenticated the
contents of these documents with witness testimony. This is why the total percentile value representing the plaintiffs'
preference for different kinds of documentation exceeds 100.
9. These constitute about one-sixth of all trial cases in my collection.
mentioned Rabia (who was legally represented by her mother Fat

the aforementioned Hadice (who was legally represented by her hus
his brother, the aforementioned Mehmed Aga, claiming that "prior
Aga owed me 1250 guru?. This amount includes the total of 500 g
me [i.e., ibrahim Aga] in Belgrade and 750 gurul that he had owe
died he also gave me this signed and sealed debt-voucher (deyn te
aforementioned Mehmed Aga and the aforementioned representa
Fatma, to pay their shares of the amount specified in this voucher,
I request that the defendants be questioned on this matter and that
carried out."
When the defendants were questioned, they denied the plaintiff's allegations. Then the court
asked the plaintiff to establish that the late Mustafa Aga had owed him 1250 gurul. Thereupon
a Mehmed bin Receb and an Ahmed Beg bin Osman from the aforementioned quarter came to
the court and testified as follows: "Indeed, the aforementioned ibrahim Aga settled the monetary
affairs with his brother, the late Mustafa Aga, in our presence in Belgrade. At that point it be-
came clear that the late Mustafa Aga had owed the aforementioned ibrahim Aga 750 gurug.
After this settlement, ibrahim Aga gave the late Mustafa an additional sum of 500 guru? in cash,
and this increased the debt of Mustafa Aga to 1250 guru?. [Again] in our presence, the afore-
mentioned Mustafa Aga wrote down [on a piece of paper], 'I owe 1250 guru? to ibrahim Aga,'
and he gave this debt-voucher to the aforementioned ibrahim Aga. We are witnesses to this sit-
uation and testify as such."
Afterwards, Elhac Mehmed Beg bin Elhac Piri Mehmed and Ismail bin Yusuf from the afore-
mentioned town also approached the court and testified as follows: "The late Mustafa Aga
acknowledged in our presence, 'I and my brother ibrahim Aga settled all kinds of monetary
affairs with each other, and we established that I [Mustafa Aga] have his [ibrahim Aga's] 750
gurug in my possession. Subsequently I received from him an additional amount of 500 gurug in
cash, which raised my debt to 1250 guru4. I owe this amount to him, and I have also given a
debt-voucher to him.' We are witnesses to this acknowledgement and testify as such." Upon
hearing these testimonies, the court ordered the plaintiffs to pay the aforementioned amount to
ibrahim Aga.
Witnesses ... (Kastamonu Court Records [hereinafter KCR], vol. 1, 69; entry for 10 January
1700).
As is obvious in the entry, the debt-voucher in question was not considered evidence for
the plaintiff's allegations. Instead, when the court demanded that Ibrahim Aga prove his
assertions, he brought in four witnesses, who confirmed not only the validity of his claims
but also the authenticity of the debt-voucher. This entry is typical of the ways in which
written documents were used in the courts of Cankln and Kastamonu: in virtually no entries
in their sicils does the use of written documents seem consistent with how other forms of
documentation (witness testimonies, acknowledgements, and oaths) were used. 10 In the ex-
ample above, the debt-voucher constituted a component or an extension of the litigant's
original statement. In addition to my initial observation that the voucher-like Ibrahim Aga's
spoken claims-had to be corroborated by witness testimony, the facts that ibrahim Aga
presented the voucher when he presented his case to the court, that is, before he was asked
to prove his allegations, and that ibrahim Aga did not mention the voucher when the court
specifically asked for evidence, indicate that the document had the same judicial status as
10. D'Ohsson agrees with this point: "L'6crit d'un home absent, quel qu'en soit l'objet, n'est jamais receivable
en justice, i moins que l'on n'en constant6 l'authenticit6 d'une manibre formelle. .. . Tout 6crit pass6 meme devant
le magistrate, n'est admis que pour une semi-preuve. Il n'acquiert une parfaite validit6 que par l'attestation de deux
t6moins. La loi a voulu obvier, par ce moyen, A la falsification des pibces" (1788: 201 and 221-22).
the plaintiff's oral statements at the initial stage of the court process. The following registry
also attests to this point:
An Osman bin Htiseyin from the village of Hulefa in the district of Merkuze sued Hiiseyin bin
Mustafa in the court of Kastamonu, claiming: "I previously asked for the hand of Fatma bin
Ahmed, who is currently present in the court. Two weeks ago, I and her legal representative, her
father, the aforementioned Ahmed, enacted the marriage contract. The amount of her deferred
dowry (mehr-i mii'eccel)11 was set at 3,000 gurus, and the judge of the district of Merkuze was
informed of our marriage. I also received this document of notification (ihbar hiicceti) of my
marriage from the aforementioned judge. [Nevertheless, and in spite of all of these previous
arrangements,] the aforementioned Hiiseyin also desired to take the aforementioned Fatma as his
wife, enacted a marriage contract with her, and now wants to consummate the marriage. I de-
mand that he be questioned and that his intercourse with her be prohibited." The aforementioned
Osman submitted to the court the aforementioned document, which contained the names of the
individuals, an Ali Beg bin Halil and an Ahmed Beg bin Hiiseyin, who had confirmed the legality
of Ahmed's representation of Fatma as witnesses at the time of the enactment of the contract.
When questioned, the aforementioned Hiiseyin said the following: "The aforementioned
Fatma has been residing in Kastamonu for more than thirty days. She was not in the aforemen-
tioned village during the time of [her father's] representation [of her]." Both the aforementioned
Hiiseyin and the aforementioned Fatma then denied that she had designated her father as her
representative to arrange for her marriage with Osman and that she had married him. When the
witnesses [whose names are mentioned in the document that Osman had submitted to the court-
BE] were questioned, they stated that they had no [sic] knowledge of Fatma's designation of her
father as her representative in her marriage with Osman. Subsequently the plaintiff was asked to
demonstrate the accuracy of his claim. He could not do so and, instead, asked the court to force
the aforementioned Fatma to take an oath that she had not designated her father as her legal rep-
resentative and that she had not agreed to be married to the aforementioned Osman. When she
took this oath, the court ordered Osman to cease his contentions on this matter.
Witnesses ... (KCR, vol. 37, 48-64; entry for 10 February 1741).
This entry is not the most straightforward of the accounts in the sicils of (ankln and
Kastamonu. Yet we understand that Osman and Ahmed, Fatma's father-who, according to
Osman, served as Fatma's proxy in her absence- concluded a marriage agreement between
Osman and Fatma. Osman claimed that because of this agreement, it was illegal for Hiiseyin
and Fatma to get married. Hiiseyin and Fatma claimed in response that Fatma had never des-
ignated her father as her legal representative and, therefore, the agreement that her father had
enacted with Osman on her behalf was not binding.
The main question that the court had to answer was whether Ahmed's representation of
Fatma was binding or not. It did this by using the information in the hiiccet that Osman had
submitted to the court. It is important to emphasize here that according to the entry, the court
did not consider this document as proof in itself. Rather, the document provided the names of
those who reportedly had confirmed the legality of Ahmed's representation of his daughter.
In other words, instead of accepting the witness testimonies in the document and, therefore,
accepting the document itself as evidence, the court used it merely to identify the witnesses
who were later invited to the court and questioned by the qadi. Remarkably, these witnesses
11. A dowry was a necessary component of a marriage contract. In Ottoman practice, it was common to divide
the dowry into two portions, "prompt dowry" and "deferred dowry." Deferred dowry, usually consisting of about
one-third to one-half of the total amount, was supposed to be paid to the wife by the husband (or his heirs) at the
time of the termination of the marriage, whether by death or divorce (Tucker 1998: 52).
denied their supposed confirmation of Ahmed's status as Fatm

this reason the court decided in favor of the defendants.
According to Emile Tyan, by the seventeenth and eighteenth centuries Muslim jurists
recognized written documents as proof in all legal domains, which is why he considers the
Ottoman era, especially after the sixteenth century, as the culmination of changing attitudes
in Islamic legal thought toward written texts (1945: 90-91).12 My findings indicate that the
use of written documentation as an evidentiary instrument was still very limited during this
period, at least in the courts of Cankirl and Kastamonu. When written documents were used
in these courts, they usually were treated as allegations or counter-allegations subject to
further corroboration. They seem to be, as Joseph Schacht claimed, "merely aids to memory.
... At the utmost, a written statement can be accepted as a declaration" (1964: 193).
It is not my intention here to offer reasons for the relatively ineffectual position of
written documents in the courts of ?ankiri and Kastamonu although, following the prevail-
ing wisdom in the field, it would be convenient to perceive the" practice of the two courts
simply as a manifestation of the general logic of Islamic law about the status of written
documents in the judicial processes. 13 Yet this reasoning assumes a deterministic, unidirec-
tional relationship between legal doctrine and practice and thus contradicts the dialectical
interaction between the two that Hallaq has wisely suggested (1995). According to Hallaq,
context-based variables (e.g., socio-economic conditions, political environment, and cultural
preferences) can also influence legal practice, and, in fact, their manifestations in this realm
have always had much bearing upon the development of new jurisprudential formulations,
as well as the perpetuation of many old ones (Hallaq 1999). Hence it would be simplistic to
expect the principles of "classical" Hanafi jurisprudence to explain fully what we observe
in the court records of Cankirl and Kastamonu.14
12. Leslie Peirce seems to subscribe to this opinion in her brilliant study on gender relations and legal practice
in sixteenth-century cAintab: "a case can be made that under the Ottoman regime [in 'Aintab, during the sixteenth
century,] written documentation was proving superior to oral testimony, and therefore edging the latter out, at least
in matters pertaining to property" (2003: 102). According to Peirce, "numerous cases required that litigants produce
a document-a title to a piece of land, for example, or a certificate of manumission" (ibid; also 282-84). The differ-
ence between my and Peirce's observations might demonstrate context-based variations in Ottoman legal practice,
which certainly deserve scholarly attention. At the same time, document use in litigations did not necessarily have an
evidentiary purpose in strictly technical terms. Given that Peirce provides in her discussion few verbatim transla-
tions of her court cases, it is not entirely clear if she is sensitive to the possibility that written documents could have
served any non-evidentiary functions.
13. According to Jeanette Wakin, who produced what is arguably the most authoritative work on this topic, the
weakness of written texts as evidentiary instruments in Islamic legal thought is related to certain built-in factors in
the sources of law, which include "the ideological milieu that gave rise to" the Islamic legal tradition, the Qur'anic
instructions, as well as the impact of earlier legal traditions in the pre-Islamic Near East (Wakin 1972: 5-7; cf.
Schacht 1964: 82-83 and 192-93; also Tyan 1955: 253).
14. Again, it is not my objective here to address all non-judicial factors that may have contributed to how oral
and written documentation was used in the courts of (ankiri and Kastamonu. By referring to one such factor, how-
ever, I can perhaps elaborate the argument. For example, the importance attributed to oral testimony in the courts of
Canlun and Kastamonu can also be thought of in relation to the levels of literacy in these locations and how different
forms of knowledge were perceived by the local community (Goody 2000: 35). Obviously, most Muslims before
the nineteenth century lived in communities of "restricted literacy" (as Goody uses this phrase), but if we assume
that in places like Canlan and Kastamonu the levels of literacy were even lower than those of larger urban centers
such as Istanbul or Bursa, access to written documentation more restricted, and, possibly, the value attributed to
oral knowledge was greater, it would not be naive on our part to assume that the legal practice in these locations re-
flected such differences. Indeed, in his study of seventeenth-century Bursa sicils Nurcan Abaci mentions several
cases in which written documents constituted the only source of evidence (1999: 117-22).
Interestingly, it is again the sicils that give us reason to be wary of such expectations. As
indicated above, written documentation constitutes an unreliable form of evidence for
many-if not all-jurists. Yet we also know from the contributions of Baber Johansen that
most Hanafi authorities ascribed to certain written texts an unquestionable capacity to act as
evidentiary instruments. Johansen argues that court archives, i.e., documents produced by
the judge or by court scribes under his direct supervision, came to be regarded as legitimate
proofs:
Le qddi qui trouve dans ses archives documents 6crits de sa propre main, ou de celle de son sub-
stitut, a le droit de les tenir pour preuves et base de jugement ou, s'il s'agit de reconnaissances
ou de jugements enr6gistr6s, de les mettre en vigueur, meme s'il n'arrive plus 'a se rappeler le
contentieux ou le litige qui ont motiv6 le document. La fonction du diwan, comme m6moire de
l'institution, fait que dans ce cas le document a une force de preuve nettement sup6rieure au
t6moignage oral: si le qddi n'arrive plus a se rappeler le jugement qu'il a passe en faveur d'une
des parties et si celle-ci amine des t6moins qui confirment que le qddi a pass6 un jugement
pareil, leur t6moignage n'est pas accept6 et le jugement ne sera pas mis en vigueur. Si, en re-
vanche, le qddi trouve dans son diwan l'enregistrement d'un tel jugement, il doit le consid6rer
comme valable et le mettre en vigeueur meme s'il n'arrive plus a s'en souvenir (1997: 349-50).
What we call "court records" or sicils in Ottoman studies are precisely what Johansen
calls the archives of Islamic courts (diwdin) in the above quotation. 15 There is, however, no
evidence in the Cankin and Kastamonu sicils that the documents prepared by the court or
found in the court's own archives were used in subsequent litigations as evidentiary instru-
ments, even when doing so was possible or appropriate. Consider the following entry:
The heirs of the late Himmet bin Sefer of CAriz quarter in Kastamonu, his widow, Hamiyet, and
his daughters of legal age, Havva and Alime, came to the noble court and sued Htiseyin (elebi
bin Elhac Ali. They claimed: "Six years ago, our testator (miiverris), the aforementioned Him-
met, sold a house in the 'Ariz quarter to the aforementioned Hfiseyin Celebi for 105 guru?. Yet
this amount is less than the real value of the house. We demand that Hiiseyin (elebi be ques-
tioned and that either the house be returned to us or he pay us the difference."
When questioned, Hiiseyin (elebi acknowledged the transaction with Himmet and added that
"several years after the transaction, while Himmet was still alive, his heirs refused to approve
the transaction (babamizin bey'ini muciz olmaztz deyii ...) and sued me a number of times.
Their allegations were subsequently dismissed in the court, and I was given [by the court] a legal
certificate (hiiccet-i leriyye). Later, the aforementioned Himmet had Abdi ?elebi bin Kadri of
the (evkani quarter and other impartial Muslims inspect the house. They estimated its value as
eighty gurug and made this known in the court. Once again the court dismissed the claims made
by Himmet and his heirs, prohibited them from further interference, and provided me with
a[nother] legal certificate. There are also witnesses who heard Himmet saying that he had sued
me because of his wife's and daughters' pressures and torments (mezbur Himmet'in, zevcimin
ve kzlartmin eziyet ve cevrleri iqin dava itdirdiim dedigine dair lahidlerim vardtr)."
After the plaintiffs denied the defendant's claims, the court requested that Hiiseyin qelebi
prove his statements. Hiiseyin Celebi introduced Mehmed bin Elhac Ali of the [?] quarter,
Mustafa bin Ahmed of <Arlz quarter, and Mehmed bin Mustafa of Molla Salih quarter, all of
whom declared that "Himmet confessed in our presence that although he had sold the aforemen-
tioned house to Hiiseyin Celebi and received its full price from him, he was later forced by his
wife and daughters to sue Hiiseyin (elebi. Also, the chief architect Abdi (elebi and other im-
partial individuals inspected the house and estimated its value as eighty guruS. Consequently, the
15. In fact, Hallaq criticizes Ottomanists for preferring the term "sicil" over "diwin." For the basis of his ob-
jection, see his article (1998).
charges of the plaintiffs were dismissed by the court, and they we

interference.
After the court accepted the testimonies of the witnesses, the plain
interfere with the affairs of Hiiseyin (elebi....
Witnesses ... (KCR vol. 5, 126-271; entry for 3 January 1742).
The entry refers to two different written documents, both

the court after the completion of previous hearings and presen
examples seen earlier, neither of these documents seems to pla
resolution of the dispute, although Hiiseyin Celebi and his wi
statements. What makes this case different from the entries a
of the very court in which the last trial takes place were supp
accounts of the earlier contentions that Hiiseyin Celebi ment
according to what we know about Ottoman courts and their
summary accounts that constituted the sources of the two h
session. Yet, as is obvious in the entry, the judge demonstrates
own archives to corroborate Hiiseyin (elebi's claims. 16 This is,
ment in the twenty-five sicil volumes shows courts of Canki
to utilize their own archives in any evidentiary capacity, eve
How can we explain this situation? Again, there is no way t
Ottoman custom of moving judges from one locale to anothe
months may be one factor to consider (although certainly
would indicate how certain bureaucratic-administrative practice
the ways in which written documents, or a particular variety
processes. As we know, judges in the Ottoman empire were r
establishing strong ties with members of the local communit
volved in communal power relations, and, therefore, to guar
ever, since according to classical Hanafi jurisprudence the arc
removed from his post loses its evidentiary value, periodic rot
theoretically limited the ways in which court records were use
1997: 351-52).18
16. One might assume that judges, when encountering a reincarnation of a

court archives unless all the elements of successive litigations (identities of lit
tions and counter-allegations, the nature of evidence, etc.) remained identical.
be legally permitted to refer to the sicils in disputes like the one between Hii
the source and the nature of the contention remained exactly the same in succ
each one of these litigations was considered to be separate from the others, as
different. For example, in one of the previous litigations, it was Himmet,
Celebi. If this was in fact the case, and there is no evidence that such a con
manuals, it would further trivialize the value of the court records as evidenti
17. Unlike Htiseyin 1elebi in the above example, many clients did not ev
produced as result of previous litigations when the very same dispute was bro
110-225; KCR vol. 4, 100-199; KCR vol. 34, 48-81; KCR vol. 35, 31-38; K
others. Again, we cannot be sure if this was a general pattern in the rest of t
tedly, both Beshara Doumani and Leslie Peirce mention in their studies on eig
century cAintab a few litigations in which the sicils were consulted for legal
claims made during the litigation (Doumani 2003: 179-92; Peirce 2003: 282)
about the relative frequency of such incidences.
18. There is no easy way to demonstrate the validity of this argument with
in Ottoman madrasas to train judges, or the judicial compendia that Ottoman
It is not clear how the Ottomans dealt with this problem. Even if they made jurispruden-
tial attempts to enhance the evidentiary functions of the sicils or developed scribal/notarial
procedures to lessen the impact of rotations upon the evidentiary status of court archives, it
is conceivable that the frequent relocation of the judges continued to affect the quality of
court documents or how they were regarded by the court officials and clients. The fact that
the court archives changed hands frequently between one judge and another, often through
third parties (judges' assistants, members of their households, or court employees), must
have increased general access to these documents and thus the chance of contamination.
We know that when a discharged judge had to leave his jurisdiction before his successor
arrived, he frequently surrendered the court archives to local people; in some cases a dis-
charged judge even took the court registers with him.19 Many of these volumes never found
their way back to their original locations, which is probably why hundreds of volumes of
court registers are missing today. But even if they had been returned, their contents might
have been considered tainted by locals, because no one could be entirely sure who had
possessed them and for how long.20
We should not overemphasize the impact of qadi rotations, as it was probably not the
only reason that the court records were contaminated.21 Nevertheless, given the little that we
know about the ways in which these documents were prepared, maintained, and altered, we
can view this practice as one factor that consistently contributed to scribal corruption. The
frequent turnover of the court archives must also have put at risk the acceptability of legit-
imate records, given the well-known scribal and notarial imperfections in the sicils. For ex-
ample, since many judges occupied different posts for relatively short periods of time, it is
not always possible to guess the identity of a judge who tried a particular case or super-
vised the enactment of a specific contract; this renders the documents related to such cases
worthless as legal evidence.22 Furthermore, the registers are often filled with changes, "cor-
rections," partially or completely crossed out entries, notes on the margins, and torn-off
pages. Given the high number of individuals who had authorized or de facto access to the
This is mainly because very little research exists on Ottoman madrasa curricula and legal guidebooks popular among
contemporary judges. Yet we know enough to recognize that the jurists whom Johansen cites as sources of his in-
terpretation of Hanafi law-Shams al-Din al-Sarakhsi, Abi Bakr al-Kaisni, and Ahmad bin 'Umar al-Khassdf-
were three of the most influential scholars who shaped Ottoman thinking on procedural law (Cici 2001: 48 and
Akgtindtiz 1986: 722; also Baymdir 1986).
19. According to Suraiya Faroqhi, "It was the responsibility of the outgoing kadi to hand [court] registers over
to his successor. Occasionally we hear of a kadi who did not do this, presumably because of accidents or because
they had something to hide" (Faroqhi 1999: 57; also Faroqhi 1997: 540). Peirce mentions that Sultan Bayezid II
complained in his law book about judges who had failed to turn over the court records to their successors upon their
dismissal (2003: 414 n. 53).
20. There are reasons to believe that the Ottomans did not trust court archives as much as the Hanafi jurists in
Johansen's article did. For example, Feriha Karadeniz reports frequent complaints from all over Anatolia about Otto-
man judges who allegedly made illegal additions on or "erased" entries from the sicils, prepared false documents
and forged seals (1996: 46, 47, and 71). Also see Doumani (2003: 189-92) for an interesting case of forgery in the
court records. I am indebted to Beshara Doumani who brought this article to my attention.
21. Once again, I am grateful to Beshara Doumani who warned me about this point.
22. Qadis were supposed to record in the court registers their full names and the date on which they took over
a particular judgeship; these entries are known as dibace. But the identity of a judge who tried a case or supervised
a transaction is not always clear in the registers I have examined. Chronological shifts in subsequent entries indicate
that some judges may have failed to enter their dibace, or perhaps the pages that contained the dibace entries were
later torn off deliberately or by accident.
court records, it is almost never possible to guess who m

changes were lawful.23
The guesswork above supposes both a continuity with and
jurisprudential traditions. On the one hand, we may assume t
documents in the archives of the Cankirl and Kastamonu c
standards inherited from earlier Hanafi jurists, which requir
preservation, and transferral of the court archives. On the
archives of the two courts did not play the special evident
designed for them, could not have been produced with suc
stances as explained above, and hence must have served diff
the next section). We cannot be sure at this point if the sam
other courts in the empire, but it seems likely that the use
in the seventeenth and eighteenth centuries were shaped,
factors, albeit still within the limits imposed by the legal d
III. DOCUMENTS AND THEIR FUNCTIONS
As indicated earlier, the Ottoman court registers contain more than t

of litigations and disputes resolved in the court. Among the document
to this article are contact entries that relate the details of agreements
involving financial and property-related transactions, marriage and d
mercial transactions involving representation in court and elsewhere
ployment, and out-of-court settlements (sulh). These entries denote t
were brought to and enacted (or re-enacted, following a private nego
court. The terms of these contracts were recorded in the registers wit
who witnessed the transaction, and then signed and sealed copies of th
to the contracting parties.
Why would contracting parties want their agreements recorded in
seek the court's involvement in their private affairs? Many of these
approached the court to make sure that their agreements conformed
so that their transactions could not be annulled later as a result of a le
23. Article 1738 of the Ottoman civil law code (Mecelle), which represents a late-ninet
tation of Hanafi legal traditions, instructs that sicil entries must be "acted upon" only if
be free from malpractice and fraud" (Akgtindtiz 1986: 753). Unfortunately, the Mecelle
about how to keep the court archives free from "malpractice and fraud" or describe how
to or different from the ones in the seventeenth- and eighteenth-century registers of
courts. Nevertheless, it is probable that the authorities who prepared this code had in m
Sharia Court Registers and the Journals for Recording Cases" (Sicillat-t er 'iyye ve Z
kinda Talimat) that was promulgated in 1874, that is, two years before the Mecelle. A
pages of court registers should be numbered, presumably to determine later whether any
torn off. Also, the documents issued by the court to individual parties should be copied
the scribe who does the copying should be identified both in the registers and on the or
sicils should contain no erasures or "scratch-outs," and nothing should be added subsequ
a particular entry. If such additions are made, the qadi should "confirm" their accuracy
the space between individual entries in sicils should not be excessive. When the tenure o
he should seal the court registers with his personal seal. And whenever these records ar
should be kept in a locked and sealed trunk at the courthouse (Diistur' 4: 83-85). Arg
Mecelle and other contemporary enactments regarding the court archives reflect a deep
over from the past as well as the Ottoman government's attempts in the late nineteent
istrative and jurisdictional systematization and modernization.
and more important for us, there may have been a desire on the part of the contracting partie
to leave behind a paper trail for future reference: presumably, one major function of the co
tract entries in the copies held by contracting individuals was to prevent the details of agre
ments from being forgotten. Hence, it can be no coincidence that a significant majority
the contracts found in the twenty-five volumes of court registers that I have examined rela
to agreements that had long-term ramifications: about seventy percent of 750 or so contra
entries in these volumes relate to house, workshop, and land transactions, divisions of estate
among heirs, and charters of pious foundations (vakfiye).24 This indicates that peop
tended to produce written documentation when the terms of the agreement apparently ha
relevance for future generations, and shows that the crucial and occasionally very detaile
information in the records needed to be protected from lapses of memory, unavoidable ove
long periods of time. Consider the following example:
The inheritance of the late Hatibzade Mustafa (elebi bin Omer from the Cebrail quarter of the
town of Kastamonu was legally restricted to his widow, Fatma bint Elhac Yusuf, to his son of
legal age, ismail, and to his daughter of legal age, Havva. Before Mustafa (elebi's estate was
divided among his heirs, the aforementioned ismail died and his inheritance passed on to his
mother [Fatma bint Elhac Yusuf], his wife, Saliha bint Ahmed, his minor son, Osman, his
daughter of legal age, Hadice, and his minor daughters, Emine and Alime. And before ismail's
inheritance was turned over to his heirs, the aforementioned Fatma died, and her inheritance
passed on to her daughter, Havva, the son of her son, Osman, and the daughters of her son,
Hadice, Emine, and Alime.
The combined estates of the deceased make up a total of 1440 shares (sehm). 580 of these
belong to Havva; 105 shares belong to the aforementioned wife Saliha; 302 shares belong to the
aforementioned minor Osman; and the aforementioned Hadice, Emine, and Alime each deserve
151 shares. After everybody received their shares, the aforementioned Havva's husband and
legal representative, Semerci [a maker or seller of packsaddles] Molla Halil bin Elhac Receb,
acknowledged in the presence of the aforementioned Hadice and the legal guardian of the afore-
mentioned minors, Saliha, that his wife and "representee" (miivekkil), the aforementioned
Havva, received twenty gurug from Saliha in return for her share in the combined estates of her
father and mother. Havva also bought from Saliha the latter's and the aforementioned minors'
shares in a house in the aforementioned quarter whose boundaries and environs are well-known
[to the community] as well as their shares in another house and a barn in the village of Giidlil
with all the fields and properties (miilk) attached to these buildings for a sum of 120 guru?....
Witnesses ... (KCR vol. 35, 39-54; entry for 15 March 1736).
24. Incidentally, Amy Singer's recent research on the operations of the Hiirrem Sultan 'imaret (soup kitchen)
in Ottoman Jerusalem reveals clues regarding the limits of vakfiyes as evidentiary instruments. According to Singe
vakfiyes were, by design, "prescriptive," and not supposed to provide "a detailed blueprint for all times" (2003: 1
She argues that
(i)n setting down the founder's intentions, (vakfiyes) captured a single point in conceptual time an
space. ... Yet even at that moment, the endowment as conceived was already altered. ... The linkage of motive,
intent, and realization is imperative for understanding how quotidian constraints and impulses worked to recon
figure the "nobly constructed" and well-intentioned designs of imperial charity. The realities of local cond
tions and demands-economics, politics, personal rivalries, topography, and culture-came into play to shap
the endowment into something that could work in and for the local environment. In part, the deed itself antic
ipated this by leaving many details unspecified. In part, the reshaping was another manifestation of the end-
less negotiations between Ottoman imperial projects and politics and the local people of various provinces who
were the engines of their realizations (Singer 2002: 43; also 112-16 on how the functions of the Hiirrem Su
tan 'imaret varied from the dictates of its vakfiye).
This might explain why witness testimonies and "public knowledge" played such an important role in most litiga
tions which involved vaklf properties and operations (Akguinduiz 1988b: 340-48).
Although, as we have seen, such documents were not use

court proceedings, this does not mean that they were not
resolution. In fact, there is some evidence that these contr
successful resolution of disputes outside the courtroom.25
The inheritance of the late Sarraq [Saddler] Mehmed bin Mehmed

restricted to his wife, ismihan bint Mehmed, his son, Esseyyi
Serife Sara and Serife Nesli. Later, ismihan passed away, and a
estate should be restricted to her son, the aforementioned Esseyy
aforementioned Serife Sara and Serife Nesli, Esseyyid Ali and t
tative of the aforementioned Serife Sara, Hafiz Ahmed Celebi, w
representative was confirmed in court by Sara's father-in-law
1egmelizade Elhac Mehmed Aga bin Hasan and Esseyyid Abd
Ramazan, acknowledged in the presence of their uncle [Sarraq
Dede, that they received their shares from the funds and proper
jointly with Mustafa Dede according to a [written] legal contr
possession [emphasis mine]. They also declared that their dispu
gard to other funds, properties, and buildings that he used to own i
was resolved in court and, consequently, they received 1,500 guru
for their father's share in these assets. Subsequent to this tra
Ahmed Celebi both acknowledged that they had no further claim
gard to Sarraq Mehmed's estate.
[Witnesses:] Kibnsizade Elhac Ahmed Efendi, Hiiseyin Celeb
Hafiz Elhac Ahmed Efendi, Ahmed Aga bin Mehmed (KCR vol.
1736).
The parties mentioned in this entry must have shared a common trust in the documents
in question. Given that it was usually the people belonging to the higher echelons of society
(people with religious, bureaucratic, and military titles and honorifics such as Seyyid, Efendi,
Celebi, and Aga) who presented most of such documentation to the courts.26 it is possible
that people with a certain level of formal education or who could afford the cost of document
production by professional scribes were more likely to use written material to support their
cases than the rest of the community. Hence it may not be a coincidence that Esseyyid Ali,
Serife Sara, and Mehmed Dede, who obviously belonged to a family of significant religious
status and seem to have been closely affiliated with important notables in their town (which
are all signs of social, political, and economic status) were able to resolve their contention
over at least a portion of Sarraq Mehmed's inheritance outside the court with the help of a
written document.27
Also, the fact that written documents were used in out-of-court resolutions may indicate
another reason why many individuals chose to have their private agreements recorded in
court registers. As mentioned above, when these agreements were registered by the court
personnel, signed and sealed copies were presented to the contracting parties. Although there
is no evidence to assume that the courts paid more attention to these official copies than to
25. In her study of the seventeenth-century Ankara and Kayseri sicils, Suraiya Faroqhi observes a negative re-
lationship between the practice of recording ordinary house sales in the court registers and the frequency of con-
tested cases involving ownership or possession of a house (Faroqhi, 1987: 183).
26. In the cases that I have studied for this article, forty-nine of the fifty-five litigants who presented to the
court some sort of written documentation carry one of these titles before or after their names.
27. Claim to descent from the Prophet Muhammad was a significant source of social prestige at the local level.
Also, the fact that Sara was related to Cegmelizade Elhac Mehmed Aga is noteworthy, since the latter was among
the important notables of Kastamonu. Finally, the titles and honorifics of the witnesses is another indicator that
reveals the social prominence of the parties involved in this case.
other forms of written documentation, such as private debt-vouchers, it is likely that docu-
ments bearing the court's imprint carried more authority in out-of-court settlements and,
perhaps, helped more to prevent disputes from escalating to the public arena of the court.
Nevertheless, the roles that written documents played in private contentions and the value
ascribed to them must have varied depending on the relationship between the contending
parties. When disputing parties did not expect their opponents to cheat or deceive them,
written documents, especially those prepared or recognized by the court, may have been
adequate to resolve conflicts in a private manner. Considering that a large number of dis-
putes took place between people of close social proximity (such as people who were related
to, or neighbors with, each other), it is not difficult to imagine that many disputants took for
granted the good will or honesty of their opponents. On the other hand, when the parties
had reason to assume the ill will of their opponents, contracts or other sorts of written docu-
mentation do not seem to have prevented them from taking their contentions to the court.
Whatever the role that written documents may have played in dispute resolution outside
the courtroom, these documents seem to reflect and, at the same time, affirm their secondary
status in legal processes. For example, although the first entry in this section provides in-
formation regarding the identities of Hatibzade Mustafa qelebi bin Omer, Fatma bint Elhac
Yusuf, and Ismail bin Mustafa Celebi's heirs, as well as the exact proportion of the estate
to which each heir was entitled, it says nothing about who received precisely what as his or
her legal inheritance. This ambiguity is also true of properties in the Cebrail quarter and in
the village of Gfidfil, whose exact specifications and boundaries are not identified in the
document. 28
28. The disparities between the descriptions of these properties and the established doctrinal requirements are
indeed striking. According to Wakin, any property that changed hands should be defined in the document in as de-
tailed a manner as possible,
first by a restricting formula and second by an accessory clause. The restricting formula established the location
(if it were immovable property), beginning with the town and gradually proceeding to a more narrow designa-
tion; all four boundaries were defined with reference to bordering property and to the four cardinal
points. ... Even more elaborate are the rules for notaries governing the accessory clauses. ... If house property
is sold, the notary must know what fixed constituent parts are automatically included in the sale, and what is in-
cluded if the terms huqiiq and mardifiq are added. Baths, mills, and so on, and the equipment that is essential to
their definition, give rise to detailed distinctions; slaves and movables, must be discussed whenever model con-
tracts for their sale are introduced. Included in these accessory clauses are provisions for easements, such as an
access road to a neighbor's house, or the harim of a well or a canal, the perimeter of land around the property
that is necessary for its use (Wakin 1972: 51-52).
Model formularies (see note 1 for a definition) from the seventeenth century (contemporary to the court records
studied in this article) also reflect the doctrinal orientation to describe fully the characteristics of properties subject
to transaction:
Model 1
The reason for the engrossing of this [document] is that we have sold 'Amr the house which belonged to us at
- (name of place), which came to us through lawful inheritance. We have sold of all of it to him, including the
upper story and lower story, walls and ceilings. It consists of five apartments on the lower floor, built of stone,
and ten on the upper floor, with two sitting-rooms and two kitchens and a toilet, together with everything
it contains in the way of tiled flooring, stonework, woodwork, panels, ironwork and glass, together with all
its appendages and rights legally appertaining to it, including its water conduit, its ventilation passage, its
eavesdrip and the rest of its lawful appurtenances, whether mentioned [here] or not, for a price of ....
Model 2
The reason for the engrossing of this [document] and its being committed to writing is that Zayd has sold 'Amr
the house which was his lawful property, accruing to him by lawful sale from _, and the boundaries of which
Because of its vagueness, this document could not be use

tions over the ownership of any component of the combined
hands between Havva and Saliha, unless it was complemente
formation. Interestingly, the document itself identifies such
description in the text regarding the location and specifica
quarter, the statement that "the boundaries and environs" ar
munity indicates that any dispute over the house's boundar
to be resolved through the intervention of local people and w
about the house in question.
Indeed, to be fully intelligible to readers, most contracts
and Kastamonu require a familiarity with local conditions a
(idmlekoglu(?) Hasan from the Akmescid quarter came to the n

presence of Elhac Veli bin Hasan that he sold a house in the aforem
mentioned Elhac Veli for 140 guru?. This house is a two-story bui
and a small courtyard. It is surrounded on three sides by the hou
bin Hasan, Kundakql Ahmed Bege, and Muhtar (headman of the
its fourth side by the main road. Elhac Veli paid me the sum in f
tioned house belongs to him.
Witnesses ... (Kast. Vol. 35, 48-68; entry for 18 April 1736).
This is a typical house sale deed from the Kastasmonu cour

more information about the house in question compared to the
is still far less detailed than those in model formularies (se
that possible conflicts regarding any part of the house, its c
its actual condition at the time of the sale could be solved th
tation-most likely, witness testimony. Admittedly, the man
the boundaries of the house satisfies jurisprudential expectat
requires contextual knowledge for full appreciation: in o
visualize its exact location, the reader must not only be fami
of the area, but also know who lived in those properties arou
sale as well as who replaced them later on. For all these reas
provides about the house would make most sense to people
the quarter and its inhabitants; the document reveals itself fu
the context in which it was composed. In this sense, it seems
the consumption of local "insiders," to serve their memory,
The information in the document requires their interpretatio
it can only become relevant in a legal process through their
If written documents played, at best, a secondary role in c
gants bother to bring them to court? As demonstrated in the
use was relatively rare in the courts of 1ankirl and Kastam
Obviously we cannot assess their value in the litigation proces
are, on the east, the house of , on the north and west the house of ,
its apartments as enumerated above (since the names of places, their natu
of the deed), including upper and lower [stories], walls, ceilings, roofs, its
work, glass, staircases, tiled flooring, stonework, wells, courtyard, to
passages, eavesdrip and the rest of its appurtenances and appendages an
whether they are [here] mentioned or not.... (Ebied and Young 1976: 4
in the original).
about the details of the court proceedings. At the same time, it is possible that many liti-
gants may have used written documents as coherent and articulate extensions of their state-
ments, especially when a dispute involved complicated allegations and counter-allegations,
elaborate transactions, or complex relationships among the parties involved; thus the litigants
had to formulate careful and detailed statements in the court in support of their version of
the dispute. In other words, submitting written documents to the court as a litigation strategy
may have helped to create a favorable impression and to elevate the credibility of the claims
(cf. Messick 1993: chapter 11). Also, it is entirely possible, as Jorgen Nielsen (1985: 25)
argues in a different context, that the judges made initial presumptions about the case on the
basis of these documents and decided on which parties that the burden of proof lay.
What about the functions of the thousands of volumes of sicils that the Ottoman courts
produced over several centuries? Surprisingly, it is difficult to find any explicit and empir-
ically informal consideration of this issue in the scholarly literature, with a few exceptions,
including the recent contributions of Leslie Peirce and Iris Agmon. Peirce claims (2003:
88-89) that "facts" were inscribed in the sicils in order "to create evidence that might later
be useful should matters come to litigation." Similarly, Agmon has argued (2003: 204) that
the function of the court records was "to supply the court with a formal document which
[court clients] could use in any future related business in or out of court. In other words,
these documents ensured the legal work of the court, sustained its function of creating and
preserving the public record." Although Agmon does not elaborate on what she means by en-
suring "the legal work of the court" and sustaining "its function of creating and preserving
the public record," both her and Peirce's assessments seem to mirror how most Ottomanists
instinctively think about the sicils-as documents with the judicially recognized ability to
represent past disputes and transactions in the processes of litigation.29 As we have seen,
however, the court records themselves, at least those that I am familiar with, do not support
this opinion. Although these documents may have been regarded originally as the official
archive or "institutional memory" of the judge, as Johansen argues, they do not seem to
have served this purpose in Cankiri and Kastasmonu during the late seventeenth and early
eighteenth centuries.
I agree with Agmon that sicils were instrumental to the functioning of 1ankirl and Kas-
tamonu courts in that they provided these bodies with information regarding past disputes
and transactions. I also agree with Peirce when she says, "(o)ne consequence of the Ottoman
practice of maintaining a public record was to give individuals, literate or otherwise, a de-
cided and vested interest in the record of the court. Their words and actions were, in theory,
recorded for all posterity to consult" (2003: 99). At the same time, I also believe that, rather
than offering courts an adequate basis for their judicial decisions, sicils assisted the judges
in acquiring a very basic understanding of earlier disputes and transactions, and also in
identifying and then locating socially and judicially acceptable sources of information
about the cases brought to them. In this sense, the functions of sicils were not too different
from those of private documents: it is likely that judges, who, on average, occupied their
posts for approximately two years, had to refer to these documents frequently in order to
familiarize themselves with cases brought to them, identify the parties involved, and decide
who should be summoned to the court for a formal consultation and interrogation. In this
sense, court records were useful, not because they were regarded as judicially legitimate
29. See, most recently, Judith Tucker (1998: 18), Haim Gerber (1994: 58-78), Abraham Marcus (1989: 107),
and others. In Turkish, see the works of Akgiindiiz (1988a: 12-17 and 1988b: 339-49) and Baylndlr (1986: 1-27
et passim).
sources of information, but because they guided courts tow

witness testimony. As valuable as these documents were in s
evidentiary status of witness testimony, and this is why the
ognition that witness testimonies received.
I should emphasize that many documents found in sicils ar
official functions of the Ottoman court were not limited to
above, in addition to solving local disputes, courts were als
tration of their districts, the execution of orders sent from
taxes. This multi-functional character of Ottoman courts is evident in their records: more than
seventy percent of all the entries in the sicils of 4ankiri relate to the court's administrative
and notarial duties (this number is forty-six percent for the Kastamonu court records). These
entries contain copies of imperial orders sent to the provinces for specific military, fiscal, and
security-related purposes, copies of official warrants that identify those individuals appointed
to specific military and religious posts in the region, and tax rosters that provide information
about monetary and in-kind taxes levied upon individual neighborhoods, villages, and dis-
tricts (Ergene 2003: chapter 3).
The point in presenting this information is to demonstrate the great variety of documen-
tation in Ottoman sicils and to draw attention to the possibility that different kinds of docu-
ments "ensured the legal work" of the court-which, obviously, was not restricted to its
judicial operations-in various ways. Indeed, there is some evidence that the function of the
written text in the court's judicial and non-judicial activities may have varied significantly
and that courts were more willing to acknowledge the authority of the written text in the
context of their administrative and financial operations (Johansen 1997: 357). We have not
addressed here the social, cultural, political, and judicial factors related to this situation, but
they should be taken into consideration in future attempts to assess the functions of the court
documents.
IV. CONCLUSION
Document use was limited in the courts of (ankirl and Kastamonu durin
and eighteenth centuries, and when documents were used in litigations
nically serve evidentiary purposes. While these claims may seem counte
Ottomanists, a careful examination of court proceedings as well as of co
found in the sicils demonstrates that written documents instead compl
and allegations made by the litigants in court and that these texts were
space for the oral performance of the participants in the court process.
This, however, does not mean that written documents, be they private
ment deeds, property titles, or the very archives of the court, were une
the court. In fact, we find in them vital information that needed to be m
mitted across generations; it may be no coincidence that among those w
documents themselves or afford the costs of their production, there was
to own and utilize written texts in legal processes. Nevertheless, I have
document that was considered as "evidence in itself": in court, its conte
roborated by witness testimonies. In private settlements, I suspect, its
dependent on the level of trust and the nature of the relationship betwe
This being said, one cannot make overarching generalizations on t
written documents were utilized in Ottoman legal processes based only on
cerning the court records of (ankirl and Kastamonu. That is not to say th
tions are undesirable but, at this stage of our research, there are reasons
one hand, as noted earlier, there still exist very few studies on specific aspects of legal prac-
tice in different locations and time periods, and the ones that do exist reflect the method-
ological variations in the works of Ottomanists and their sensitivities (and insensitivities)
to specific aspects of our sources (see nn. 12 and 17). Until and unless we analyze a greater
number of collections in a methodologically consistent way, we will lack a common base
of comparison.
At the same time, it is also probable that there existed significant regional and temporal
variations in legal practice.30 Again, we need more studies from different regions and periods
to detect such inconsistencies; but the fact that, for example, there exist major omissions in
our sicil collections might be one indication of this situation. How can we explain the general
lack of thousands of volumes of court records for many towns, cities, and rural settlements
which we know to have possessed a court before the mid-nineteenth century, if not with
reference to regional and temporal variations in scribal and record-keeping practices? Can
they all be lost? Suraiya Faroqhi does not seem to think so, as she claims that in many such
places "compilation and preservation of the court records" might not have been "the rule"
(1997: 539). If this was indeed the case, what does it imply about evidentiary processes in
such locations? What does it say about the legal culture of these communities and the ways
in which they distinguished between and utilized alternative sources of information? Can
we really assume that in such places documents played the same roles that they did in
Istanbul, Bursa, Damascus, or Jerusalem? Our ability to make meaningful generalizations
regarding document use in Ottoman courts of law is dependent on our answers to such
questions.
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Ergene, Evidence in Ottoman Courts, Oral and Written Documentation in Early-Modern Courts of

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Evidence in Ottoman Courts: Oral and Written Documentation in Early-Modern Courts of

Pursuing the insights of Ignaz Goldziher and Snouck Hurgronje regar

Journal of the American Oriental Society 124.3 (2004) 471

II. ORAL VERSUS WRITTEN IN THE COURT

Ottoman court records contain documents relating to the official respo

courts for fiscal, military, and administrative purposes, after

4. (ankin and Kastamonu were two subprovinces of the province of Anatol

mentioned Rabia (who was legally represented by her mother Fat

denied their supposed confirmation of Ahmed's status as Fatm

charges of the plaintiffs were dismissed by the court, and they we

The entry refers to two different written documents, both

16. One might assume that judges, when encountering a reincarnation of a

court records, it is almost never possible to guess who m

III. DOCUMENTS AND THEIR FUNCTIONS

As indicated earlier, the Ottoman court registers contain more than t

Although, as we have seen, such documents were not use

The inheritance of the late Sarraq [Saddler] Mehmed bin Mehmed

Because of its vagueness, this document could not be use

(idmlekoglu(?) Hasan from the Akmescid quarter came to the n

This is a typical house sale deed from the Kastasmonu cour

sources of information, but because they guided courts tow

Abaci, Nurcan. 1999. "Osmanli Hukukunun Uygulamaslna Yonelik Bir idari-Sosyal T

Cici, Receb. 2001. Osmanli Diinemi islam Hukuku (alqhmalart:

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