SOME CONSIDERATIONS ABOUT THE FAMILY STRUCTURE IN THE PRE-TANZIMAT PERIOD ACCORDING TO FATWA COLLECTIONS

Abstract

The term fatwa includes the answer to questions asked about not only subjects of worship of a Muslim but also his behaviors, in his family and daily life, whether conforms to religious rules. The fatwa practice was mainly applied within the framework of the Hanafi school in the Ottoman society. In the fatwa process, the views of the Hanafi school were taken as the main source and from time to time one of the few views on a subject was preferred and the fatwa was given according to that view. However, to practice the views of other schools were approached differently in different periods. In fact, while in the works written at the beginning of the 15th century was looked positively to the practice of the views of other schools either through tahkim (by the appointment of a hakam from a different school) or directly. But in the works written in the 16th century and later, this practice was not allowed. While, in principle, judges are not empowered to act with the views of different schools or Mujtahids, on certain issues it appears that the practice of the views of different mujtahids commands by public authority. It is understood from here that, when needed, it is possible to benefit from the views of the mujtahids other than the Hanafi school only with the initiative of the public authority. The fatwas given by Sheikh al-Islam and Muftis within this framework were compiled in works called fatwa collections. These works are not only a source of Fiqh but also a reference for the examination of the historical conditions and social structure for the relevant period. In this study, rather than the printed and widely used collections containing the fatwas of Sheikh al-Islam, the fatwas of the muftis called in kenar muftis which means who served in the provinces, were discussed. In this context, the collections containing the fatwas of Skopje Mufti Pir Mehmed Usk Ubi, Akkerman Mufti Ali Akkirmani, and Kayseri Mufti Ali en-Nisari and the collection compiled by Corum Mufti Ahmed Feyzi Efendi is among the reference sources. In this article, there are some determinations and analyses made about the family structure of the pre-Tanzimat period based on the highly representative examples selected from fatwa collections. It was beyond the aim and limits of this study to examine all fatwas on all issues regarding the family. Rather, examples that are thought to be suitable for demonstrating the thought and mentality behind the provisions are emphasized. The fact that a significant part of the related fatwas is based on ijtihad, some of them reflect the perspective and mentality of their time and therefore are open to criticism should not be overlooked when analyzing these fatwas. In this study, the juridical context of Islamic law on the matter in hand was revealed, the mentality behind the provisions was analyzed, and the connections showing the relationship between Fiqh rules were pointed out. The article also includes the criticism of these provisions, in where necessary, in terms of the general world view of Islam. In this context, the high point is that, while determining the provisions regulating the establishment of the contract, the rights and responsibilities of the parties, and even the termination of the contract, the Fiqh scholars, who define the marriage contract as an act that ensures that men have the right to benefit from women sexually, have included the rules that are in line with the definition they make. However, some provisions presented within this framework are open to criticism in terms of the values revealed by the Nusus. On the other hand, the article also pointed out the effect that the customs and traditions of the society by revising some strict provisions within the framework of Fiqh and fatwa rules on the formation of the classical family structure. To emphasize as an example, according to Fiqh rules, theoretically, the man's power to end the marital union unilaterally (talaq) can be used quite freely by legally. When a man uses his right to talaq, despite it is not a valid reason, his divorce is legally valid even if he is considered to have sinned. However, the reaction of the society, especially their own families and close circles against those who divorce for no reason, has significantly prevented the use of this right without reason. Hence, this difference between the theoretical framework in Fiqh and family life shaped by the customs of the society had attracted the attention of Western researchers living in the Ottoman society. As a result, the article not only has the characteristics of a study of Fiqh and legal history but also has to shed light on the background of today's problems in family issues.