From the Pages of the Defter (ص 221)

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From the Pages of the Defter (ص 221)

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It is, however, essential to draw attention to the measures taken in court after Jibran
had set forth his demand. Witnesses were not called in to testify to Khaltl’s ownership of the
three feddans, although witnesses would be brought in later in the case to testify that Khalil
had leased the lands to Jibran. Instead, the court recessed so the Tapu Registry could be
consulted. This step was likely taken because Khalil could not produce a kushan (tapu
certificate), making the court’s decision to insist on documentation instead of testimony all
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the more significant. ’~ When the case resumed, it was announced that the tapu certificate
>”? Oral testimony was the main form of proof offered in the sharia courts throughout the Ottoman
period. That said, both the supplementary and mandatory use of written documentation as evidence
can be found in the sharia courts throughout Ottoman history. See, for example, Leslie Peirce’s study of
the Aintab court 1540-1541, Morality Tales: law and gender in the Ottoman court of Aintab (Berkeley:
University of California Press, 2003):102-103. Bogac Ergene argues its use in the early-modern period
was subordinately complementary to oral testimony. (He makes this argument in his 2004 article,
“Evidence in Ottoman Courts: Oral and Written Documentation in Early-Modern Courts of Islamic Law”,
Journal of the American Oriental Society 124 / 3 (July-September 2004): 471-491. On the varied uses of
documentation in early-modern sharia courts, see his “Document Use in Ottoman Courts of Law:
Observations from the Sicils of Cankir! and Kastamonu”, Turcica 37 (2005): 83-111.) Needless to say, the
court system and recording procedure underwent periodic reform. During the Tanzimat, a nizamiyye
(civil, commercial and criminal) court system was introduced alongside the traditional, sharia courts and
took over many of its functions. (On the development of this system, see Avi Rubin, Ottoman Nizamiye
Courts: Law and Modernity (New York: Palgrave Macmillan, 2011). In Hebron’s sharia court between
1867 (the year of the first archived sicil) and the 1890s, there was a noticeable shift in the types of cases
heard as well as in the manner in which they were recorded in the court register and these are reflective
of Tanzimat-era reforms to the judiciary. For example, by the early 1890s, judges regularly began to cite
in their rulings clauses (maddeler) from the Mecelle (mecelle-i ahkam-i ‘adliye), the civil code
promulgated in 1869, as was done in this case. This requirement was one that was actually applied to
the nizami courts (Ibid., 88), illustrating that in Hebron the sharia court continued to hear civil cases
after the reform and that it adopted at least some of the procedural reforms mandated to the new,
nizami courts. Another innovation in this period was the consultation of court records.
Reforms to the sharia court were also applied. For example, the Order of the Arrangement of the
Sharia Records promulgated in 1879 (1296H) redefined recording procedures of court cases in the
judge’s record books. The law permitted that these records might serve as evidence in court in the
absence of other proof. (Ahmed Akgiindiiz, “Shari ‘ah Courts and Shari ‘ah Records: The Application of
Islamic Law in the Ottoman State”, Islamic Law and Society 16 (2009): 211. On occasion, one finds
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From the Pages of the Defter

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Susynne McElrone

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