Akademik Veri Yönetim Sistemi
Islam Tetkikleri Dergisi, cilt.14, sa.1, ss.33-57, 2024 (Scopus, TRDizin)
This article discusses the legal formulas devised by muftis against divorce oaths forced by executive officers (ehl-i örf ) in Ottoman society. Hanafi jurists believe that divorce oaths made under duress are valid. The jurists have developed legal remedies that can be used against the possibility of abuse of this opinion by those in positions of power. The problems arising from the abuse of divorce oaths and their remedies were reflected in fiqh literature, especially fatwa collections where the Hanafi madhhab held sway. Fatwas issued by muftis in Anatolia and Rumelia, regions where Hanafi madhhab dominated during the 16th-18th centuries, indicate that divorce oaths were used pervasively by executive authorities as instruments of compliance. These fatwas describe how executive officers have transformed divorce oaths into tools of coercion, exploiting them for various purposes, including upholding public order, apprehending and interrogating suspects, ensuring justice, tax collection, debt settlement, and prevention of illicit activities. They also abused this mechanism for illicit gains, preventing legal action against them, and acquiring illicit property or money. In response, Ottoman muftis proposed remedies rooted in legal tradition to safeguard individuals from executive coercion. The most remarkable of these remedies are clandestinely inserting the phrase "in sha'a Allah" (if Allah wishes) into divorce oaths, file a lawsuit through attorney, pronouncing divorce with the intent of false notification/admission, intending another meaning of divorce, and constraining general expressions with personal intent. These remedies, which balanced the madhhab's opinion that the divorce oath under duress is valid, served to protect individuals, family and property rights against the executive officers. The article, a study of legal history, provides evidence from fatwa collections to support these findings.