“Women were naturally regarded as inferior and not many would dare to assert their rights, even if they knew what they were. Furthermore, no practical recourse was available to a woman who wished to do so…” (“Political Change in Rural Turkey” (1966) by Joseph Szyliowicz, Anthropologist)
“The women knew nothing of the law, and the men have no motive for taking any notice of what little they may happen to know of it.” (“Land, Marriage, and the Law in Turkish Villages” (1957) by Paul Stirling, Anthropologist, in UNESCO International Social Science Bulletin)
These and similar statements by orientalists and other Western writers suggest that women under Islamic rule in the Uthmani Khilafah were deprived of their legal rights, unaware of them, or too fearful to pursue them. They maintain therefore that women were unable to seek justice through the courts – a claim, which was and continues to be regarded by many as an indisputable truth. However, thousands of judicial records from the Uthmani Khilafah tell a very different story of the legal rights women enjoyed under the implementation of the Islamic Shariah laws. These detailed registers unequivocally refute these baseless assertions of Western orientalists and academics. They prove that women were not only provided true protection and support under Islamic rule, but were also well aware of their legal rights which they did not hesitate to exercise through the courts.
These judicial records reveal that women under the Uthmani Khilafah used the courts regularly to defend their personal and property rights, many represented themselves and handled their own cases, and as litigants they had the same legal rights as men. Infact a study of the judicial registers of the Shariah courts of Kayseri, a city in Anatolia, Turkey in the 17th century, reveal that women appeared as litigants in over 17% of the cases heard by the city’s courts during the period from 1600–1625. Women would use the courts to settle issues related to marriage, divorce, and inheritance, as well as to secure financial maintenance, property, business and other economic rights. They also used them to raise complaints about violence and other matters.
Furthermore, the suits, defenses against suits, and oaths of Muslim women were admitted in exactly the same way as those of Muslim men and were equal to them in every way. (Jennings)I) Studies on the Kayseri records and those from other parts of the Uthmani Khilafah also show that women won a high proportion of their cases. This was attributed by some academics to the great sense of duty that Qadi’s (judges) under Islamic rule felt towards the protection of the rights of women as well as the vulnerable and oppressed. Ronald Jennings wrote in “Christians and Muslims in Ottoman Cyprus and the Mediterranean World, 1571-1640” (1993), “Kadis (judges) had a special obligation to protect the weak and vulnerable. Much of the relatively secure position of women may be attributed to the concern of various kadis in Nicosia and elsewhere on the island of Cyprus who staunchly maintained their legal rights in the face of oppression.”
The judicial records show that a woman could go to court and publicly set forth any complaints or accusations she had to make, with confidence that the court would hear her fully. She was assured that the court would, if necessary, summon the accused before her; and she could require the defendant to defend and explain their actions. If a woman was sued or accused of a crime, she had the same right as a man to defend herself. If there were no adequate witnesses, she might be asked to take an oath of innocence, which the court would accept as full proof of her innocence. If the circumstances of the case made it advantageous to her, she might demand from the plaintiff an oath supporting their suit or testimony. (Jennings)
Women were also permitted to appoint individuals as their legal representatives – known as Vekils – in order to pursue their cases in court on their behalf, providing further proof of the legal rights that women enjoyed within the Uthmani Khilafah. These legal agents were entrusted with defending their rights of inheritance, dowry, maintenance and all kinds of business and trade issues at court. Additionally, women frequently served as Vekils for other people, such as their mother, sisters, or daughters, and sometimes even for their husband, father, brothers or other men and women, which was a great responsibility. This included in cases involving estate settlements or property transfers, which in effect gave them power of attorney over people’s property. The following are some examples from the judicial records where women served as legal agents for others or appointed them to represent their own cases:
“Emine bint Haci Musa has for vekil Huseyn bin Huseyn: When my muvekkile (client/proxy giver) was under age, her nazir Seydi Ahmed sold houses belonging to her at Sultan Hamami mahalle to Haci Hasan. Now she is of age and wants them back. The court orders them given to her.” (*)
Ali bn Mustafa, his sister Shehzade, his mother Umm Gulsum bint Idris, and Suleyman, who has his mother Umm Gulsum as vekil for the matter, acknowledge in the presence of Imam Ebu Bekr Halife bn Abdul-Latif Halife: An estate at Husayinlu mahalle is sold to Ebu Bekr for 60 kurush. (*)
Cemile bint Abdur-Rahim, Akila bint Mustafa, and Ibrahim bin Abdur-Rahim, who has his sister Cemile as his vekil, acknowledge in the presence of Mevlana Seyyid el-Hac Mahmud Efendi bin Seyyid el-Hac Salih Efendi: We exchange our house at Haci Avz mahalle with Seyyid Mahmud for his house in the same mahalle (neighbourhood). We renounce claim to his debt to us. (*)
Ayshe bint Ahmed has been made vekil for the sale by Suleyman bn Halil. (*)
Ayshe bint Ahmed of Hasbeg mahalle, for herself and as vekil for the sale for the aforementioned Suleyman, acknowledges in the presence of Kapuci Haci Musa bn Haci Ibrahim: She sells a site for a house in the mahalle for 7 kurush(*)
Altun bint Hoca Beg, for herself and as vekil for her children Yusuf and Kaya, orphans of the late Aga Can v. Keshish sells 1/2 a vineyard at Egri Bacak nahiye to Sinan v. Mihail. The vineyard is next to others of Bagadasar, Sefer, Murad, and Kara, all zimmis. It is sold to provide nafaka for the orphans. (*)
Furthermore, courts were always ready to hear reports of crimes from whomever might bring them. Even when a lone woman without witnesses brought important information to a judge, the court would hear her fully and investigate the matter immediately. The door of the court always stood open to anyone who wished to enter and address it, male and female, Muslim and Dhimmi (a non-Muslim citizen of the state). (Jennings)
La Baronne Durand de Fontmagne, a relative of the French ambassador to Istanbul, who wrote her memoires of Istanbul after the Crimean War incisively stated, “Turkish women are absolutely free. This truth can easily be seen. Those who say Turkish women are slaves deserve to be laughed at.”II)
(Note: “Turkish” does not mean the nationality of the Turkish Republic today but rather was used in previous centuries to refer to people under the rule of the Uthmani Khilafah)
Women under the Shariah laws implemented by the Uthmani Khilafah therefore made frequent use of the courts. These courts issued rulings based upon Islam and hence scrupulously upheld the rights of women. In addition, the high numbers of legal cases involving women as litigants, and the frequency with which women used the courts and managed their own legal problems reflects a high level of understanding that women had of their rights and the laws of the state. It also demonstrates that women had good access to the court system, had trust in it to protect and maintain their rights, and saw it as relevant to their lives. Women under the Islamic rule of the Uthmani Khilafah therefore received support from the courts in seeking justice. Judges maintained their legal rights guaranteed to them by the Qur’an and Sunnah. Hence, they were viewed as one arm of the state in protecting women’s wellbeing. This was just one of the fruits that women enjoyed by living under a system that implemented the Shariah laws upon the state.
“The Turkish wife has been called a slave and a chattel. She is neither. Indeed, her legal status is preferable to that of the majority of wives in Europe, and until enactments of a comparatively recent date, the English was far more of a chattel than the Turkish wife, who has always had absolute control of her property. The law allows to her the free use and disposal of anything she may possess at the time of her marriage, or that she may inherit afterwards. She may distribute it during her life or she may bequeath it to whom she chooses. In the eyes of the law she is a free agent. She may act independently of her husband, may sue in the courts or may be proceeded against, without regard to him. In these respects she enjoys greater freedom than her Christian sisters.”
“Turkey and the Turks” (1911) by Z. Duckett Ferriman, Author
Women’s Section in the Central Media Office of Hizb ut Tahrir
Notes
I) And all (*) Ronald C. Jennings, “Women in Early 17th Century Ottoman Judicial Records The Sharia Court of Anatolian Kayseri”, “Journal of the Economic and Social History of the Orient 18” (1975)
II) La Baronne Durand de Fontmagne, Kırım Harbi Sonrasında İstanbul (Istanbul After the Crimean War), Paris 1902, p. 243-44