Yavuz Aykan (Istanbul): „Go to your brother's house, I divorced you!“ Debating Divorce and Madness in Eighteenth Century Ottoman Amid

Abstract

On June 29 1739, a woman named Hamide, a resident of the İckale quarter in the city of Amid (today’s Diyarbakır), sent her proxy (vekil) al-hajj Mahmud son of Mullah Ömer to the legal court of the city, to file a lawsuit against her husband Seyyid Kemaleddin. As the judge questioned the parties it turned out that Kemaleddin had divorced Hamide during a quarrel with her brother named Seyyid Sunullah. He uttered the divorce formula at once, three times, “go to your brother’s house, I divorced you”, which should be considered according to the declarations of the proxy Mahmud as an irrevocable divorce (talâk-ı selâse or talâk-ı bâi'n). Legally, such a clear and unequivocal (sarih) statement of divorce formula does not require the intervention of the court in the case as the dissolution of marriage is usually effective after such a divorce pronounced by the husband. However, what followed made affairs a matter of legal debate: armed with the strongest legal argument that brought the question of legal faculty into the picture, Kemaleddin refused the consequences of his words by stating that “I divorced her in a state of madness and epilepsy”.

In scrutinizing the case Hamide brought to the legal court of Amid in this presentation, I trace the genealogies of a debate among the Muslim Hanafi jurists on the question of legal faculty of the mad man. I specifically analyze three casuistic opinions (fatwa) integrated into Hamide’s defense, in order to track down the intellectual traffic from the jurisprudential traditions of the Transoxiana and the Greater Syria into the Ottoman legal praxis. Looking at the ways these authoritative texts were debated, reformulated and made operative in the Ottoman legal praxis reveals that the historically contingent landscape of the Islamic legal doctrine constituted an open commentary binding the social practice to the authoritative text.

Curriculum Vitae

Yavuz Aykan conducts research, inter alia, in the fields of Islamic Legal Doctrine and Mamluk and Ottoman Legal History. He studied history at Dokuz Eylul University in Izmir, at Bogazici University in Istanbul and the École des Hautes Études en Sciences Sociales in Paris, where he also obtained his doctorate degree in 2012. He has taught and researched, inter alia, in Munich, Paris and Berlin. Since March 2013, Yavuz Aykan is Fellow at the Käte Hamburger Center for Advanced Study in the Humanities "Law as Culture", working on his research project “Islamic Jurisprudence as Language of Debate in the Early-modern Ottoman Context”.

Publications

• Property between life and death: A juridical debate over the property of a missing person (gha'ib) in eighteenth-century Ottoman Amid, in: Huri İslamoğlu, Safa Saraçoğlu (Eds.): Justice, Statecraft and Law: A New Ottoman Legal History (forthcoming).
• Unacknowledged Memory: The nineteenth century Ottoman Empire and the Ambivalence of National Memory in the Turkish Republic, in: Philip Kreyenbroek, Christine Allison (Eds.): Discourses of Memory in Iranian Cultures, Harrassowitz: Wiesbaden 2013.
• Comment al-hajj Mehmed s'est-il approprié un terrain récupéré de la décrue du Tigre? Le statut d'une terre vacante devant un tribunal ottoman (Amid au 18ème siècle), in: Sami Bargaoui, Simona Cerutti, Isabelle Grangaud (Eds.): Propriété et appartenance locale au nord et au sud de la Méditerranée à l'époque moderne, Actes du colloque de Tunis, 29-30 October 2010 (forthcoming).
• Encyclopaedia Entry "Mariage", in: le Dictionnaire de l'Empire ottoman (forthcoming with Fayard).