shari‘a
prescripts regarding the rights of the wife of a missing man. A ruling was made in
her favor, and a document bearing the order to that effect was given to the Imperial
Chancery to be registered, copied, and sent to the appropriate authorities in the
province of Bosnia.8
The problem of husbands who, for a variety of reasons, left their homes and
failed to return for an indefinite period of time was unique neither to Muslim
societies, nor to the eighteenth century. The likelihood of such incidents in any
society increased during times of war and population movement. Exceptionally,
desertion was one of the easiest ways to leave an unhappy marriage. For example,
examining cases of missing husbands in eighteenth-century Pennsylvania, Merril
Smith has convincingly argued that leaving wives behind and moving to an
unknown destination was a trouble-free way of obtaining a divorce without having
Zečević, Missing Husbands, Waiting Wives
337
to go through the complicated legal process of eighteenth-century divorce law in
effect in that state. She suggests that during this period, desertion probably remained
the most frequent method of getting divorced.9
For Muslim men who lived in eighteenth-century Ottoman Bosnia, desertion
was not a necessary means to obtain a divorce, as shari‘a law provided Muslim
men with the possibility of divorcing their wives through a relatively direct and
uncomplicated procedure.10 However, legal and other sources from this period of
Bosnian history indicate that Muslim men did leave their homes for any number
of reasons, and often they did not return. For example, the eighteenth-century
historian of Sarajevo Mullā Mustafā Bašeskija (d. 1809) describes men who did not
return from the hājj, as well as several merchants who did not return from business
trips.11 During the politically uneasy eighteenth century, many Bosnian men did
not return home as a result of the frequent wars in which they participated, and
news of their whereabouts sometimes did not reach their homes.12 Subsequently,
the wives of these men found themselves in a peculiar legal position: although left
without husbands and hence without the benefits of marriage, they were nevertheless
considered married as long as no news had reached them of their husbands’ fate.
Consequently, they could not remarry as long as they lacked definitive evidence
as to whether or not their husbands were alive.
Significantly, for an analysis of gender roles, a woman in the absence of her
husband had to act in a male capacity. With or without the means of support, the
wife of a missing man became the head of the family and thus assumed some
of his roles, such as maintaining and dispensing household property and having
exclusive custody over their children. Yet, she was considered a married woman
and hence unavailable for another marriage. The missing man, on the other hand,
was unable to perform the most important condition of matrimony—cohabitate
with his wife and provide for his family—and was therefore in breach of certain
provisions of the social and legal contract of marriage. Due to his absence from
the household, his masculine roles as provider for the family and sexual partner for
his wife were indefinitely suspended. How did Bosnian jurists, who had exclusive
access to legal and other relevant authoritative texts, interpret this problem in light
of the particular circumstances of eighteenth-century Bosnian society? What legal
rights did they ascribe to the missing men and to their waiting wives? How did the
various schools of Islamic law resolve this problem?
This study examines the intersection between the production of the fatwa text
and the construction of gendered norms and regulations in Islamic law in late
Ottoman Bosnia. More specifically, I focus on the manner in which eighteenth-
century Bosnian expert-jurists [ müftü/ mufti] re-interpreted gendered roles ascribed
to Muslim men and women as they delivered rulings regarding missing Bosnian
husbands and their abandoned wives. As this analysis is based on a body of
legal texts that were produced by a particular class of Bosnian Muslim scholars,
namely mufti s, a short review of the interconnection between legal culture, textual
production, and the construction of gender in Ottoman Bosnia is in order.
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Women in the ottoman Balkans
Legal Culture and Textual Production in Ottoman Bosnia
A casual survey of the fourteen catalogues of the Gazi Husrev Beg Library in
Sarajevo indicates that despite the four-year (1992–96) period of deliberate
destruction of several thousand Bosnian texts written in Persian, Ottoman Turkish,
and Arabic,13 this library alone remains home to over 20,000 texts written, copied,
and/or studied in Ottoman Bosnia.14 Established in 1537 within the confines of
the Gazi Husrev Beg madrasa complex,15 the Gazi Husrev Beg Library is one of
the oldest repositories attesting to the presence of Bosnian textual communities
of writers and readers who were involved in the processes of production and
dissemination of a variety of multi-lingual texts during the four centuries of
Ottoman rule (1463–1878) over Bosnia-Herzegovina.16 A more detailed analysis
of the legal texts and documents that are archived in the Library reveals that over
time, Bosnian Muslim legal scholars produced and/or reproduced a wealth of
source material that can be used for the analysis of different aspects of legal culture
in Ottoman Bosnia. For example, the overwhelming majority of these texts and
documents demonstrate that Bosnian legal scholars ( madrasa professors) and legal
practitioners ( kad/ qadi and mufti) of Ottoman Bosnia belonged to the Hanafi school
of Islamic law.17 The schools of Islamic law [ mezheb/ madhhab] represented the
main sources of doctrinal interpretation of all issues that belonged to the domain
of Islamic law, such as ritual prayer, the establishment and maintenance of pious
endowments [ vak/ waqf], marriage and divorce, and so on.18 Each of these schools
relied on a corpus of legal texts attributed to great imam s—i.e., the eponyms of
the schools—as well as to other remarkable scholars. These texts were considered
the authoritative texts of a particular school, and, as such, they were continuously
studied, memorized, copied, and commented upon by legal scholars and students
in Islamic colleges.19
The interconnections between the authoritative texts on the one hand, and the
Islamic colleges and libraries in which they were studied, copied, and archived
on the other, is crucial for an understanding of the manner in which Bosnian legal
scholars negotiated their membership in both the borderless community of Hanafi
scholars and more specifically the community of Ottoman legal scholars. The rich
body of legal texts and documents studied, copied, and written by Bosnian jurists
challenges the common belief that some jurists, and in particular the so-called
“provincial” mufti s in the central lands of the Ottoman Empire suc
h as Rumelia
and Anatolia, were but pious men with a bit more than average education.20 An
examination of the legal texts that served as the authoritative sources read and
studied by Bosnian jurists indicates that they did not differ from those used for
the same purpose in other parts of the Empire, wherever the Hanafi madhhab was
followed.21 The uniformity of the authoritative texts within each school of Islamic
law mitigated the geographical distances separating the areas where these schools
held sway, thus creating a particular sense of fellowship and intimacy between
those who relied on them in their daily activities, regardless of their location
within the Empire. For example, when Muslim lay people from Anatolia, Bosnia,
or Transoxania asked their jurists such questions as “What do our imam s say?” or
Zečević, Missing Husbands, Waiting Wives
339
“What is the correct opinion according to our doctrine?” they all referred to the same
body of texts that constituted the authoritative opinions of the same Hanafi school
of law.22 For this reason, it makes sense to consider a school of Islamic law—that is,
a madhhab—as a kind of “imagined community” of jurists and Muslim lay people
alike, who constructed their identities around a common body of authoritative texts
that helped them decide on the correct solutions to their life problems.
Still, it would be a mistake to assume that the uniformity of the body of
authoritative texts that Bosnian Hanafi jurists read and commented upon implies
a corresponding uniformity in their interpretation of these texts. In fact, various
jurists read, studied, and/or commented upon their subtleties in light of their own
experiences, and hence they gave it new, contextually-colored interpretations.
Bosnian jurists who produced commentaries on various Hanafi authoritative texts,
original legal treatises, and collections of expert-legal opinions [ fetvā/ fatwa] were
no exception.23
The Mufti and His Text: al-Fatāwā al-Amadiyya al-Mūstāriyya
Among the rich corpus of legal source material archived in the Gazi Husrev Beg
Library in Sarajevo, a particular collection of legal texts is worth mentioning:
al-Fatāwā al-Amadiyya al-Mūstāriyya [Collection of the fatwa s of Ahmed of
Mostar] . Ahmed al-Mostari was a “provincial” mufti born during the last decades
of the seventeenth century in Mostar. His biography indicates the standard path
of a legal scholar of his time: he obtained his primary and secondary education
in Islamic disciplines in Mostar, and then went on to attend one of the imperial
colleges outside Bosnia.24 Unfortunately nothing is known about al-Mostari’s higher
education, except that he probably attended an imperial madrasa in Bursa. Several
biographical dictionaries of the Bosnian-Ottoman religious elite confirm that Ahmed
al-Mostari was appointed mufti of Mostar and professor at a local madrasa sometime
in the early eighteenth century.25 Although details of his intellectual biography are
rather sketchy, there are several legal works attributed to him deemed worthy of
note by a number of Bosnian scholars.26 After serving as mufti of Mostar for almost
forty years, Ahmed al-Mostari died there in 1776.
Ahmed’s appointment in his native town of Mostar is not surprising, since from
the end of the sixteenth century to the end of Ottoman dominance in Bosnia, all
mufti s who interpreted the law in this Ottoman province were appointed from a
pool of local scholars who had graduated from the imperial Islamic colleges.27 The
connection between a local community and its mufti s was extremely important
because Muslims and non-Muslims alike relied on their expert opinion on all
matters pertaining to shari‘a. In addition, muftis were expected to be familiar
with Ottoman administrative law [ kanun/ qanūn] and to take it into consideration
whenever a question at hand was to be regulated according to its provisions.28 In
sum, a mufti was expected to be able to provide clear and knowledgeable answers to
petitioners who solicited his expert opinions on all matters of law, be it immutable
shari‘a law or man-made kanūn. For example, Mula Mustafa Bašeskija tells us
that a mufti from Sarajevo, Sejid-Mehmed Efendija Svrako (d. 1780), was highly
340
Women in the ottoman Balkans
respected by his community because his legal opinions were clear and truthful.29
On the other hand, the community could be quite unforgiving of a mufti’s inability
to provide clear and informed opinions on matters of Islamic law, which sometimes
resulted in public mockery of an ill-fated scholar.30
The most important texts produced by mufti s are fatwa s. Like the lengthy
answers provided by experts in Roman law reached in the process of jus respondi,
or explanations provided by experts in Jewish Law in responsa s , a fatwa is a non-
binding legal opinion produced by an Islamic expert-jurist in response to a question
posed by a layman.31 Hence, a fatwa text represents a recorded dialogue between
a questioner, usually a non-expert Muslim [ mustaftī], and an expert-jurist [ mufti].
In its usual form, each fatwa starts with the questioner’s elaboration of a case, and
the request for an expert opinion regarding the issue(s) at hand.32 The second part
of the fatwa contains the jurist’s response to the question(s) concerning the issue(s)
at stake, which, as many scholars of Ottoman fatwa s have aptly observed, usually
consists of a short answer which reads either “yes” (it is permitted) or “no” (it is
not permitted). While the query [ su‘āl] and the answer [ jawāb] are indispensible
components of the fatwa text, they were occasionally accompanied by the jurist’s
explanation of the rationale behind his decision, as well as by an indication of
which authoritative texts he had consulted in the process of examining the case in
question.33 The listing of authoritative sources and the explanation of the reasoning
behind a particular ruling open up new avenues in the analysis of the complex
interpretive process entailed in the delivery of an expert-opinion on any given
issue. For example, the reader of the extended version of a fatwa text is able to see
different stages of that process, from the mufti’s re-reading of selected authoritative
texts, through his interpretation of the case at hand, to the final stage of the delivery
of his particular ruling that appears in the form of a short answer.
In addition to the peculiar, extended form of his fatwa s, al-Mostari’s collection
has another feature worth mentioning in this context: while the essential parts of
his fatwa s—i.e. the query and the answer—are written in Ottoman Turkish, the
additional parts—the indication of authoritative texts and the elaboration on his
ruling—are written in Arabic. This important language shift again indicates the
Bosnian mufti’s dual membership in two communities of scholars, the borderless
Hanafi scholars who wrote works of Islamic jurisprudence in Arabic, and the
community of Ottoman legal scholars and practitioners who used Ottoman
Turkish as the administrative language of the shari‘a courts in Bosnia.34 Hence,
while providing a succinct query/answer type of
fatwa text in Ottoman Turkish,
the mufti also enabled the questioner to present it in a “ready-to-be-used” form
at the shari‘a court in order to substantiate his or her case.35 By writing the
explanation and titles of the authoritative sources in the continuation of the fatwa
text in Arabic, the mufti proved his knowledge of the Hanafi authoritative sources,
ultimately indicating the high level of his scholarly expertise and giving his ruling
the necessary legitimacy.
It would, however, be simplistic to regard al-Mostari’s examination of the
question at hand as a process during which the mufti looked into available doctrinal
Zečević, Missing Husbands, Waiting Wives
341
texts and then simply regurgitated the opinions of the great scholars of his madhhab.
Like any other reader, al-Mostari brought to his reading of doctrinal texts his
own “here and now” which ultimately influenced his choice of those scholarly
opinions which he deemed most befitting the specific context of his place and
time. Consequently, al-Mostari’s belonging to a particular local community and
his intimate knowledge of the social tissue of that community played a crucial role
in the interpretive process entailed in the issuance of his expert-opinions on the
concrete problems at hand. As Brinkley Messick aptly puts it, “locally gendered
questions were related to locally interpreted jurisprudence. Mufti s were the creative
mediators of the ideal and the real of the shari‘a.”36
Man Gone Missing
The category of missing man [ mafqūd] is discussed in the major canonical texts
belonging to all four Sunni schools of Islamic law.37 The interest evidenced by
the madhhab s in defining the legal position of a missing man is understandable,
considering that his prolonged absence would cause numerous problems in regard
to his legal obligations and rights vis-à-vis other people, most notably his wife and
children whom he is legally obliged to provide with alimony. In addition, while
a missing man is in absentia, his property is left unattended, and this may incite
members of his immediate family to put forward a claim for its division. While
all madhhab s agree in principle that the category of a missing man is problematic
and therefore deserving of a particular re-examination of his status, rights, and
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