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Introduction
The Congress of Berlin in 1878 marked a significant break for Muslim communities in the hitherto Ottoman territories of Southeastern Europe. The Treaty of Berlin redrew the region’s borders and placed Muslims under (predominantly) Christian rule in the newly established successor states to the Ottoman Empire, while guaranteeing them civil and political rights as well as the free practice of their faith.[1] It also gave Austria-Hungary the mandate to occupy the province of Bosnia and Herzegovina, which remained a de jure part of the Ottoman Empire (until its formal annexation by Austria-Hungary in 1908). As stated in the Habsburg emperor’s proclamation to Bosnia’s inhabitants of July 1878, and specifically defined in the Habsburg-Ottoman Novi Pazar Convention of April 1879, the occupation mandate guaranteed freedom of worship to all inhabitants, including Muslims.[2]
To fulfill this obligation, the newly installed Austro-Hungarian authorities had to integrate Islamic institutions, including its legal system, into their own (secular) administrative structures. Following the occupation, sharīʿa courts were allowed to continue ruling on legal matters according to Islamic law, however, the Habsburg authorities soon introduced significant reforms. According to a report from the Austro-Hungarian finance minister Benjamin Kállay to the Cisleithanian prime minister Eduard Taaffe in 1883, the authorities aimed to control the sharīʿa courts and local qadis, while also guaranteeing the free practice of Islam. Kállay thought that the Habsburg administration should lead to the "assimilation of a large part of the Mohammedan-confessional legislation with that of the state," and believed that these reforms would be well received by the Muslim population due to the allegedly "increasingly evident undeniable merit of our laws."[3]
Kállay’s concept of a "civilizing mission" aimed at modernizing and assimilating the Islamic judiciary aligned with the overall Habsburg "quasi-colonial" effort in Bosnia, characterized by asymmetrical power dynamics in governmental structures.[4] However, several studies have highlighted that this did not lead to the demise of Islamic law but, rather, led to marked transformations within it. As Fikret Karčić’s seminal research has shown, much Ottoman-Islamic law "survived" in post-Ottoman Bosnia, while the Habsburg reforms were similar to those introduced elsewhere in European colonies, such as in Algeria and India.[5] Mehmed Bećić has argued that the Austro-Hungarian reforms were based on colonial models of administering the Islamic judiciary.[6] By building upon these discussions of continuity and change in the Islamic legal system following the Habsburg occupation of Bosnia in 1878, this paper aims to investigate how the Ottoman Islamic legal system was adapted towards the new Austro-Hungarian political and administrative framework by focusing on legal practice at sharīʿa courts and the local Muslims’ agency therein.
To date, most studies on the Islamic legal system in Habsburg Bosnia have emphasized its structure and legal norms,[7] although recent years have witnessed an increased interest in legal practice at sharīʿa courts. Hana Younis, for instance, has assessed the everyday life of Bosnian qadis who, she argues, had to contend with the loss of their prestigious status, as well as limitations to their jurisdictional functions.[8] Other historians have also increasingly used sharīʿa court records to analyze the regulation of marriage and family issues.[9] Beyond the study of Islamic law, the situation of Muslims in Habsburg Bosnia is relatively well-studied and the most recent works have specifically focused on the Ottoman cultural legacy and the ongoing trans-Ottoman networks and entanglements among Bosnian Muslim intellectuals.[10]
This growing historiographical interest in Islam and Muslims in post-Ottoman Bosnia corresponds to a broader trend to investigate the lives and the legal status of Muslims in Southeastern Europe following the cessation of Ottoman rule. Several recent studies have explored how Muslim communities became minorities in the newly established nation-states of Bulgaria, Greece, and Serbia, arguing that this resulted in the incorporation and transformation of the Ottoman legal heritage as well as the restructuring of Islamic institutions.[11] The present paper contributes to this growing scholarship by focusing on the transformation of the Islamic legal system in Habsburg Bosnia in court practice. In so doing, it also draws upon a growing body of literature relating to the incorporation of Islamic legal systems in colonial administrations of the late nineteenth century, such as in Russian Central Asia or African and Southeast Asian territories under French and British rule.[12]
Such legal transformations have been studied from different theoretical perspectives, while recently, the legal historian Lena Foljanty has suggested viewing legal transfers as translations of knowledge, practices, and values. Through this process, legal transfers create hybrid legal models and norms that are characterized by an amalgamation of different practices and understandings.[13] Similarly, Lauren Benton’s studies on the role of law in colonial cultures outline that the incorporation of indigenous and Islamic law into colonial pluralistic legal orders is characterized by negotiations about jurisdictional and cultural boundaries. She highlights how cultural and legal intermediaries have played a significant role in translating and brokering between imperial administrators and local societies. At the same time, she points out that colonial pluralistic legal systems often inhibited tensions and contests about legal authority and how these facilitated phenomena such as "legal jockeying" between different legal and jurisdictional orders.[14] Starting from these theoretical considerations, this article assumes that the translation of Ottoman Islamic law into the Habsburg framework should be analyzed beyond merely describing changes to legal structures and norms. Rather, the agency of local actors, including imperial administrators and judges, qadis, and plaintiffs, in conflicts and negotiations, as well as the emergence of new norms and legal practices resulting from the amalgamation of different legal cultures are this study’s focus.
This study’s findings rely on the analysis of archival documents from the Supreme Sharʿīa Court (Bosnian: Vrhovni Šerijatski Sud) in Bosnia and Herzegovina, installed by the Habsburg authorities in July 1879 as an appeal body for local sharīʿa courts. The court records stored in the State Archives of Bosnia and Herzegovina (Bosnian: Arhiv Bosne i Hercegovine) in Sarajevo provide information on first-instance district sharīʿa court proceedings as well as on appeal procedures before the Supreme Sharīʿa Court. Due to the Habsburg legal interventions and archival practices, the available court records do not entail sicils, or qadi court registers, that are traditionally used for studying legal practice in the Ottoman context.[15] Rather, they include correspondence between the local court and the Supreme Sharīʿa Court, the plaintiff’s appeal, and the decisions of the Supreme Sharīʿa Court. Since the type and number of archived documents vary from case to case, some also include additional material, such as minutes of court hearings, the verdicts of local trials of the first instance, and other types of correspondence and text material from different administrative institutions. The court material is to a large extent written in Bosnian (Latin script) and to a lesser extent in Ottoman Turkish (OT) and German.[16]
A close reading of selected cases from the Supreme Sharīʿa Court offers insights into the transformation of Islamic legal practice and the ensuing negotiations on jurisdictional and cultural boundaries as well as legal authority between different local actors. Besides describing the Habsburg structural reforms of the Islamic legal system, as outlined in the subsequent section, the analysis focuses on four key issues: the role of the Ottoman Turkish language and script for the continuity of Islamic legal practices; the rise in proceduralization and legal formalism in sharīʿa court proceedings; the formulation of Islamic legal opinions and the development of legal doxa; and finally, the responses of local plaintiffs to the Habsburg legal reforms by utilizing the new legal structures to make claims. Thereby, this paper argues that the Habsburg transformation of the Islamic legal judiciary led to a hybrid legal model, in which some parts of the Ottoman legal heritage were intentionally preserved, while others were replaced with Austro-Hungarian concepts or colonial legal models. This legal amalgamation was, however, not only shaped by top-down efforts of the Habsburg authorities to muzzle and control local qadis, but equally, by local agents who managed to retain some autonomy within the Islamic legal system.
Sharia Courts Under Habsburg Rule
From the fifteenth century, when Bosnia came under Ottoman rule, Islamic culture and institutions played a vital part in local society. The population consisted of four different confessional groups: Muslims (38 percent according to an official census from 1879), (Serbian) Orthodox Christians (43 percent), Catholics (18 percent), and a small Jewish community.[17] Non-Muslim groups were afforded considerable autonomy in administering family and matrimonial affairs, with the resulting pluralistic legal order referred to as the millet system. The term millet, ultimately derived from Arabic milla, roughly corresponded to a confessional community. However, this should not be equated with a clearly defined systematic order: Jurisdiction was fluid, and non-Muslims also used sharīʿa courts to regulate various issues, including family and matrimonial questions, according to Islamic law. [18]
Before the Danube Monarchy took over Bosnia in 1878, the mid-nineteenth-century Tanzimat (OT, Reorganization) reforms that aimed to modernize the empire and its administration by incorporating elements from European legal and administrative models had already significantly reshaped the Ottoman legal system. This had traditionally been based on Islamic law as well as the qānūn, or the sultan-issued state administrative regulations. The Tanzimat reforms introduced new legal codifications, some of which were based on a selective reception of European law, as well as courts. Thus, new penal (1840, 1858) and commercial codes (1850) were drafted that emulated French models. In the same vein, secular Nizamiye (OT, Regular) courts were established in 1865/66 in Bosnia, which regulated all civil legal affairs except for those issues that fell under the purview of separate commercial, consular, sharīʿa, or ecclesiastical courts. As of 1868, the Divan-i Ahkâm-i Adliyye (OT, Council of Judicial Ordinances) was established as the highest court in the multi-level Nizamiye court system, putting appeal mechanisms under the control of a secular institution. Another significant step was the drafting of an Ottoman civil code, the Mecelle-i Ahkâm-i Adliyye (OT, Digest of Legal Rules; hereafter Mecelle) between 1870 and 1877, the form of which was akin to that of "European" codified law, while its content was based on Islamic law. Thus, on the eve of the Habsburg occupation of Bosnia, European legal concepts had been introduced into the Ottoman legal system, and the competences of the sharīʿa courts were already being drastically curtailed to (at least in theory) the administration of family, marriage, and inheritance affairs.[19]
The 1870s not only saw major legal and administrative reforms and changes in the Ottoman Empire but also the so-called Great Eastern Crisis, which led to several uprisings and wars, that challenged the empire’s rule in Southeastern Europe. Following the Russo-Ottoman War of 1877-78, European powers intervened to redraw the region’s borders. The initial peace treaty, signed at San Stefano in March 1878, was soon revised at the Congress of Berlin in June and July of that year, and resulted in the establishment of new nation-states (Romania, Bulgaria, Serbia, and Montenegro) which enjoyed varying degrees of independence from the Ottoman Empire. Austria-Hungary, which had remained neutral during the war, was granted the mandate to occupy and administer the Ottoman province of Bosnia and Herzegovina, which remained legally part of the Ottoman Empire until its annexation by the Habsburg Monarchy in 1908.
Due to this convoluted legal status, the Habsburg emperor, Franz Joseph, guaranteed the preservation of the existing legal system and laws, at least initially.[20] The Austro-Hungarian authorities soon implemented changes in the local court system to reduce the authority and jurisdiction of local qadis. Several months after occupying Bosnia, they replaced local judges at the "regular" (Nizamiye) civil courts with imperial officials, significantly limiting the qadis’ role, as they had previously often served at both sharīʿa and civil courts.[21] This move was motivated by the Habsburgs’ general mistrust of local officials, who had hitherto served under the Ottoman government. While a few of them left Bosnia at the beginning of the occupation, those who remained were viewed with suspicion. A government decree in January 1879 even stated that the Ottoman officials who remained in the country were either "unsuitable" or "insufficiently trustworthy."[22]
In this spirit, the Habsburg government sought to restrict the jurisdiction of qadis while fulfilling its international obligations and guarantees. In accordance with its occupation mandate, as specified in the Novi Pazar Convention of April 1879, the Austro-Hungarian authorities were bound to uphold freedom of religion for all inhabitants of Bosnia, including Muslims.[23] Thus, it was imperative that they preserve Islamic institutions as well as sharīʿa courts, yet limit their scope to marriage and family affairs. This jurisdictional limitation resembled the legal autonomy in the area of marriage and family that had been afforded to the non-Muslim communities under Ottoman rule. This was formalized through an 1883 decree on the "Organization and Scope of Sharīʿa Courts," which defined the responsibilities and jurisdiction of these courts exclusively to cover family, marriage, and inheritance matters among Muslims.[24] Although the Tanzimat reforms had already encroached upon the jurisdiction of sharīʿa courts, both Muslims and non-Muslims turned to sharīʿa courts in Bosnia to settle family and other civil disputes until the early years of the Habsburg occupation. However, the 1883 reform introduced by the Austro-Hungarian government established strict jurisdictional boundaries, effectively undermining the previous practice of jockeying or "shopping" between different courts. This change transformed sharīʿa courts into institutions with "special jurisdiction" (German: Sondergerichtsbarkeit) for Muslims in family and marriage issues. [25]
Such a "special jurisdiction" granted to religious institutions for marriage and family matters was also extended to the territory’s other confessional groups. Hence, these issues were exempt from the jurisdiction of the civil courts and civil marriage did not exist in Habsburg Bosnia. Thus, while Muslims had to consult sharīʿa courts for such matters, the Serbian Orthodox, Catholic, and Jewish communities needed to turn to their respective religious institutions for settling marriage and family affairs.[26]
In some ways, this was similar to the autonomy that had been granted to non-Muslims under Ottoman rule, usually referred to as the millet system. In this sense, the Habsburg authorities transformed the Muslim community into a millet, exercising autonomy in the realms of marriage and family. Other post-Ottoman states in Southeastern Europe such as Bulgaria or Greece also used the Ottoman model as a template for granting autonomy to their Muslim population.[27] At the same time, applying different religious norms for regulating marriage and divorce was not alien to the Habsburg Empire. Since the Austro-Hungarian Compromise of 1867, Austria-Hungary was effectively divided into three legal regimes as far as marriage and family matters were concerned: The Austrian Civil Code of 1811 provided a legal framework for Cisleithania (Austria) based on Catholic-Canonic legal norms; Hungary and Transylvania fell under a wide array of confessional marriage laws until the introduction of mandatory civil marriage in 1894; and Croatia-Slavonia enjoyed some degree of autonomy since the Croatian-Hungarian Compromise of 1868 and applied civil law based on the Austrian Civil Code.[28]
Nevertheless, the Islamic judiciary did diverge from the other ecclesiastical courts in Bosnia that regulated family and marriage affairs in several ways. Most importantly, the sharīʿa courts were integrated into the regular court system under government control, due to the introduction of specific supervisory mechanisms. In July 1879, the Austro-Hungarian authorities created the Supreme Sharīʿa Court in Sarajevo, which served as an appeal body for the local sharīʿa courts of first instance. The latter could be found, before as well as after 1878, in each district town. From 1882, sharīʿa courts fell under the authority of the (local) district office; when independent district courts were established in 1906, the local sharīʿa courts became a division of each (local) district court.[29] The Supreme Sharīʿa Court in Sarajevo operated within the framework of the Supreme Court, the highest appeal body for the civil courts. Thus, from 1883 to 1913, only two out of the five judges that served on this body were Bosnian Muslim qadis. The other three were non-Muslims and simultaneously judges at the Supreme Court, while its president also chaired the Supreme Sharīʿa Court. As such, these judges almost exclusively hailed from other parts of the Habsburg Empire and had studied law in Vienna, Prague, Zagreb, or other Austro-Hungarian universities. After 1913, the Supreme Sharīʿa Court was composed of three Muslim qadis and a (non-Muslim) member of the Supreme Court, whereby the latter only had an advisory role and no voting power.[30]
Although classical Islamic law foresaw some types of review mechanisms and the late Ottoman Empire had established a review committee for sharīʿa court rulings, the Meclis-i Tedkikat-i Şeriyye (OT, Assembly of Sharīʿa Inquiries) within the office of the şeyhülislam (OT, the Ottoman chief mufti), the idea of a formal, state-controlled appeals body was a novelty within the Bosnian Islamic judiciary. Similar, two-tiered sharīʿa court systems could be found, however, in other Muslim societies under European colonial rule, such as Algeria and India.[31] As Mehmed Bećić has aptly demonstrated, this similarity was the result of an attempt on the part of Habsburg administrators to "transplant" a colonial model of Islamic law from Algeria to Bosnia.[32]
These reforms also raised questions about the relationship between sharīʿa courts and other Islamic institutions. First, Austro-Hungarian authorities reduced the role of the highest religious authority in Istanbul, the şeyhülislam, and established a local religious head for Bosnian Muslims in 1882, the reis-ul-ulema (Bosnian, "head of the ʿulamāʾ"). This position also served as the chair of the newly created four-member Ulema-Medžlis (Bosnian, Council of Scholars), which regulated Islamic affairs and education in Bosnia.[33]
The local population of Habsburg Bosnia had mixed reactions to the occupation and reforms. While some Muslims, including qadis, chose to leave Bosnia for the Ottoman Empire to avoid living under Christian rule, others accepted Habsburg governance and collaborated with the occupation regime. For instance, in a November 1878 declaration, several members of the Muslim elites, such as the pro-Habsburg Sarajevo mufti, Hilmi Mustafa Omerović (the first reis-ul-ulema), and the supreme qadi Sunulah Sokolović expressed support for the Habsburg emperor and advocated for the establishment of a local Islamic hierarchy independent of Istanbul, a proposal that was eventually implemented in 1882.[34] Bosnians had, in general, only limited ability to shape or oppose the legal system at the administrative level. Irrespective of their religious affiliation, Bosnians were excluded from political participation until the establishment of the Bosnian parliament in 1910, which granted limited forms of political rights.. As a result, the religious sphere remained the only area where the male population could actively participate, since religion was considered the main structural feature of the Habsburg administration in Bosnia. For this reason, local protest movements were often framed along religious demands.[35]
In this vein, a movement for religious autonomy emerged among the Muslim population in Bosnia around the turn of the century. Research literature points to the 1899 conversion to Catholicism of a young Muslim woman from Mostar as the catalyst for the widespread protest movement, largely supported by the landowning Muslim elite. Their main demand was greater autonomy in religious and educational affairs, as articulated through petitions to the government. However, the Habsburg authorities did not accept these demands and even banished one of the leaders, Mostar Mufti Ali Fehmi Džabić, when he traveled to Istanbul in 1902, resulting in the movement’s temporary stagnation. It regained momentum in 1905, leading to the formation of the first proto-national political party in Bosnia, the Muslim People’s Organization (Bosnian: Muslimanska Narodna Organizacija, MNO). The MNO leaders continued to advocate for religious autonomy, which was eventually granted after Bosnia’s formal annexation in 1908 through the Autonomy Statute in 1909.[36]
Despite the new regulation, the central demands of Muslim autonomists regarding the Islamic legal system were not fully addressed. These included enlarging the qadis’ competences so that they could implement and enforce their verdicts, as well as restructuring the Supreme Sharīʿa Court without interference from non-Muslim judges. Although the latter demand was granted in 1913, the former was never realized and remained a persistent request voiced by Bosnian qadis, particularly during World War I.[37] Despite the limited opportunities to implement structural changes in the Habsburg-controlled Islamic legal system, Bosnian Muslims did utilize these legal forums as qadis and plaintiffs. As the following will illustrate, Bosnian Muslims were able to maintain a certain level of autonomy in legal practice, actively shaping the application of Islamic law on the ground.
Preserving the Ottoman Turkish Language and Script
Despite the significant Habsburg interventions in the Islamic judiciary, as outlined above, much of the Ottoman Islamic legal heritage was preserved under Habsburg rule. Imperial officials understood that it would be crucial to maintain certain established Islamic legal practices in order to hold to their guarantee of the free exercise of Islam and to stabilize their rule, albeit it was not quite clear which practices and their extent. This can be best observed around the issue of the administrative language to be used at sharīʿa courts.
In the newly formed Austro-Hungarian administration, Ottoman Turkish was officially replaced with Bosnian (designated the "provincial language" in contemporary terminology) and German. However, the Habsburg authorities refrained from issuing a general language regulation and instead specified the use of language for each institution. As noted by the historian Dževad Juzbašić, this blurred the boundary between the administrative use of German and Bosnian.[38] While German dominated at most legal institutions in Bosnia, the situation was different at sharīʿa courts. In contrast to most other courts that were run by judges from elsewhere in the empire, local Bosnian qadis could continue to adjudicate at sharīʿa courts. While the language of communication at courts under Ottoman rule was likely a mixture of Bosnian and Ottoman Turkish, qadis were trained and prepared documentation in the official Ottoman Turkish language, as explained by Tatjana Paić-Vukić.[39] Thus, a complete shift towards Bosnian, despite being the local population’s native language, was deemed impractical by Habsburg officials, and qadis continued issuing their written opinions and judgments in Ottoman Turkish, as it was considered the language in which they could most accurately formulate their explanations.[40]
At the same time, the use of Ottoman Turkish soon became an obstacle for communication with other legal and administrative institutions. In 1896, the Supreme Sharīʿa Court acknowledged that the many documents issued in Ottoman Turkish by the sharīʿa courts were causing difficulties for many court parties and authorities who were not familiar with the language. To address this issue, the supreme qadis requested that local qadis use Bosnian in their official functions.[41] The president of the Supreme Court, Martin Kenđelić, who also presided over the Supreme Sharīʿa Court, clarified several months later in a circular letter that this request was not intended to affect sharīʿa law, nor was it meant to prohibit the use of Ottoman Turkish in sharīʿ a courts: The qadis were to continue issuing their judgments, which fell within the jurisdiction of the sharīʿa courts, in Ottoman Turkish, but were encouraged to draft official documents and communications in Bosnian if able to do so.[42]
Moreover, the use of Ottoman Turkish at sharīʿa courts represented more than just practical considerations. It became a symbol of the preservation of the Islamic jurisdiction and the ongoing connection to the "trans-Ottoman" cultural and communication sphere.[43] Despite the shift by most Muslim intellectuals towards the use of Bosnian in public discourse after the Habsburg occupation of 1878, Ottoman Turkish and Arabic continued to be used under Habsburg rule. Ottoman Turkish periodicals such as the literary-political Servet-i Fünun (The Wealth of the Arts) circulated in Bosnia while Ottoman Turkish newspapers, such as Vatan (Fatherland) or Rehber (Guide), were published under the Austro-Hungarian administration. In this manner, Bosnian Muslims could continue participating in "trans-Ottoman" discourses and debates.[44]
Due to its symbolic importance, the Supreme Sharīʿa Court emphasized the maintenance of Ottoman Turkish language and writing style in court documents. Judges at the Supreme Sharīʿa Court reviewed local qadi verdicts to ensure their conformity to the traditional sharīʿa court recording practice, known as the sakk-i şer’î, written in Ottoman Turkish.[45] When Mustafa Redžić, a Sharia court trainee in Bihać, was unable to comply with the sakk-i şer’î due to his limited knowledge of Ottoman Turkish, the supreme qadis encouraged him to write the verdict in Ottoman Turkish as best as he could. Since Redžić refused to do so, a disciplinary investigation against him was opened. However, the Bihać County Court ultimately ruled that the issue was not with the language used but rather Redžić’s unauthorized signing of official documents.[46] The chairman of the Bihać County Court, Marian Turzanski, did, however, comment on the language matter:
Undoubtedly, Redžić himself must know best whether he knows the Turkish language well enough or not, and also undoubtedly, as a Muslim and a sharīʿa judge, he would like to know this language well enough to be able to issue his ilams [Bosnian, "verdict"] in this language according to the regulations, and all the more so, as certainly every sharīʿa judge must perceive it as a flaw if he does not know the Turkish language well enough, this flaw also does not recommend him to his superiors and therefore hinders his progress.[47]
With his lack of knowledge of Ottoman Turkish, Redžić was arguably an extreme example, however, his case highlights that both Muslims and non-Muslims attached symbolic importance to the use of language in official sharīʿa court documents. Another example can be seen in the curriculum of the sharīʿa judge school established in Sarajevo by the Austro-Hungarian government in 1887 for prospective qadis. In addition to studying classical Islamic law and Austro-Hungarian law, students were taught how to compose legal documents in the sakk-i şer’î in Ottoman Turkish.[48] This created tensions with the Habsburg education system’s language policy, in which Bosnian was the main language of instruction and only Arabic, as opposed to Ottoman Turkish, was taught as a foreign language at Muslim educational institutions (starting from 1885). In addition, by the end of the nineteenth century, most Muslim writers had switched to Bosnian for participating in public debates and discussions.[49] Nevertheless, the Ottoman Turkish language remained in use among Bosnian Muslim intellectuals, as the above-mentioned circulation of Ottoman periodicals illustrates. This was also due to the fact that several Bosnian qadis and members of the ulamāʾ complemented their studies at the Sarajevo Sharīʿa Judge School (Bosnian: Šerijatska Sudačka Škola) with earlier or later studies in the Ottoman Empire, and therefore, possessed excellent knowledge of the Ottoman Turkish language.[50]
All the same, the use of the Ottoman Turkish language in the verdicts issued by sharīʿa courts was not without controversy. With the rise of the Muslim autonomy movement around the turn of the century, the state of the Islamic legal system became a pressing topic in negotiations between representatives of the movement and the Habsburg government. During a 1908 discussion on potential reforms of the sharīʿa courts, the question of language and form in the courts’ rulings was raised. Adalbert Shek, the chair of the Justice Department at the provincial government (the highest administrative institution in Bosnia), supported the demands of conservative Muslim elites like Šerif Arnautović of the Muslim autonomy movement to maintain the traditional form of the sakk-i şer’î. Shek stated that "pragmatic sharīʿa matters must remain as they have been from time immemorial."[51] At the same time, he acknowledged that communication with other authorities could be in different forms and thus, also in Bosnian. The qadi Hilmi Hatibović, however, countered that the sakk-i şer’î was not prescribed by the sharīʿa and therefore, the form of sharīʿa court judgments could be modernized. Despite this, he did not object to retaining the sakk-i şer’î (in Ottoman Turkish).[52]
Proponents of maintaining sakk-i şer’î may have recognized that any alteration in the language and format of official sharīʿa court documents could have direct and undesirable legal ramifications. For example, Bećić has highlighted that the introduction of land registers (Bosnian: gruntovnica) between 1885/86 and 1910 resulted in the registration of mukataalı vakıf property (OT, buildings on waqf lands subject to rent) as private ownership of tenants. Despite protests from the Muslim community against this transformation of ownership structures in legal practice, the civil courts, which had jurisdiction over property relations, upheld the changes.[53] As noted above, Habsburg authorities only considered the realms of marriage, family, and inheritance to be within the purview of sharīʿa courts, in which they would not directly interfere. The civil courts, in contrast, often applied Austrian laws for the regulation of civil matters in practice, although de jure much of the Ottoman Tanzimat legislation, including the Mecelle, remained in force.[54]
Despite tendencies to retain the Ottoman Turkish language and style in sharīʿa court records, in practice changes were manifold, as many sharīʿa court documents were issued in Bosnian. This is also reflected in the available archival material of the Supreme Sharīʿa Court as well as selected local district sharīʿa courts. Even though Ottoman Turkish is common in the documents written by qadis during the very first years of the occupation, starting from the late 1880s, more documents appear in Bosnian. Mostly, the sharīʿa courts used the same preprinted forms as found at other Habsburg courts. The prevalence of Bosnian in archival documents is also, in part, attributable to archival practices, according to which the documents of the local district sharīʿa courts were not systematically archived. Even though individual document collections are currently being sorted, organized, and indexed, only a few documents from specific years have been handed down for local first instance sharīʿa court proceedings; whereby the archival holdings do not contain any sicils (the traditional Ottoman qadi court registers).[55]
Apart from that, the archival holdings of the Supreme Sharīʿa Court contain communications between the first instance district court and the appeal body and rarely include any official documents, such as an ilam or hudžet (Bosnian, "deed"), issued by local qadis.[56] Thus, the Ottoman legal heritage was only partially preserved, while Habsburg standards of language and court documentation to a great extent replaced it. This was accompanied by some changes in the legal practice of the sharīʿa courts, such as the form of court proceedings or the role of legal sources, as discussed in the following section.
Proceduralization and Legal Formalism
While some elements of the Ottoman Islamic legal tradition were retained during Austro-Hungarian rule, significant changes were made to sharīʿa court proceedings. At the local district level, court proceedings continued to be conducted orally in front of plaintiffs, defendants, witnesses, and experts, following the provisions outlined in the Mecelle.[57] As the Mecelle lacked provisions for appeal procedures, Austrian procedural law was adopted by the Supreme Sharīʿa Court, which was regulated by special laws and decrees.[58] These stipulated that the Supreme Sharīʿa Court should make decisions based on written appeals and other court documentation collected during the proceedings at the local sharīʿa court.[59] During its legal review, the Supreme Sharīʿa Court also evaluated compliance with these procedural regulations such as the proper composition of protocols and court documentation.
In practice, not all qadis followed these provisions in detail, instead acting as the first point of contact when conflict arose. Often, they attempted to mediate conflicts outside of court. For example, in the spring of 1906, a marital dispute between Hamid Pašić, a shoe merchant from the town of Tešanj, and his wife Rašida was settled informally by Qadi Abid Sadiković. The disagreement was related to financial matters, but the exact circumstances cannot be reconstructed from archival materials. Compared to several other archival files, this one, with thirty pages of documents in Bosnian, contains quite a large amount of information. This includes a written appeal by Hamid Pašić submitted to the Supreme Sharīʿa Court, protesting the actions of Qadi Sadiković and his court clerk Mustafa Handžić, statements submitted by Sadiković and Handžić retorting Pašić’s complaint, two short messages from the Supreme Sharīʿa Court to the District Sharīʿa Court in Tešanj, as well as one notice from the Tešanj District Office to the Supreme Sharīʿa Court.[60]
The contradictory statements contained in the file allow only a few conclusions to be drawn about the case: The couple had a similar dispute several months earlier, therefore, Qadi Sadiković decided in the most recent marital conflict against a regular court hearing in favor of an informal agreement between the two parties. In the end, the spouses reconciled, however, Hamid was displeased with how the qadi had interfered. More specifically, he claimed that the qadi and his clerk had urged him to divorce Rašida. The Supreme Sharīʿa Court’s ensuing investigation revealed that the qadi had violated legal regulations by mediating outside of court, as opposed to initiating a regular court hearing, including its proper written documentation. In its final decision, the Supreme Sharīʿa Court refrained from intervening but warned that in further suits, the qadi had to act properly and document his actions in writing or face the consequences.[61]
Less than a year later, however, Qadi Sadiković again ignored procedural regulations: In March 1907, Ejub Bajraktarević sent a telegram to the Supreme Sharīʿa Court, complaining about Qadi Sadiković’s misconduct. He alleged that Sadiković, without an official court hearing and assisted by police, had forcefully returned his cousin’s fiancée to her father and prevented the two from marrying. According to the plaintiff, this action was unlawful and violated "religious and legal institutions."[62] In the subsequent investigation, it was found that Ejub’s cousin had practiced the widespread tradition of "bride kidnapping" (Bosnian: otmica) and had taken his fiancée Zineta Kapetanović (with her consent) to his abode during the night. As a result, Zineta’s father had asked Qadi Sadiković to intervene. Sadiković justified his direct intervention without a formal court hearing by pointing to the inconvenient timing of the event at three hours after sunset. Moreover, he claimed that since the two families belonged to rival political factions, the elevated potential for violence had necessitated an immediate response. The Supreme Sharīʿa Court took note of this justification, however, did not pursue the matter further against Sadiković. This might have been owing to the fact that he had filed an official report with the District Sharīʿa Court in Tešanj immediately after the incident to justify his (otherwise) unlawful actions.[63]
These cases demonstrate that the Supreme Sharīʿa Court focused on ensuring proper procedure in local sharīʿa courts. However, this supervision of qadis by the Supreme Sharīʿa Court stands at odds with the common description of traditional premodern Islamic jurisprudence as a mediation mechanism within local communities that operated outside of government control. Local conflicts within the neighborhood, or mahala, were typically resolved through informal arbitration by the qadi, village elder, or imam. As a result, disputes could often be settled without formal court intervention. Similarly, a qadi’s ruling generally aimed at reaching a compromise that preserved social equity within the local community, rather than exclusively favoring one party.[64]
Nevertheless, as early as the eighteenth century, the jurisdiction of qadis in the Ottoman Empire came under greater state administrative control,[65] and the Tanzimat reforms, as described previously, increasingly centralized the Ottoman legal system, creating a multilevel judicial system with formal appeal bodies and widespread oversight mechanisms. Despite these changes, qadis did not entirely forfeit their traditional role as mediators. The two court cases involving Qadi Sadiković highlight how qadis continued to remain the first point of contact in local conflicts and that informal arbitration was still common.
The process of proceduralization fostered by the supervisory role of the Supreme Sharīʿa Court was not, however, a simple top-down process. Rather, locals seeking justice increasingly turned to the Supreme Sharīʿa Court with procedural claims. This was closely related to the increased involvement of lawyers in sharīʿa court proceedings. In the tradition of Islamic law, professional lawyers did not exist, although there were some forms of legal representation in court. This is often attributed to the fact that sharīʿa courts tended to reach solutions that were agreeable to all parties involved, thus favoring arbitration over adjudication. Avi Rubin explains the rise of professional lawyers in Ottoman courts with the consolidation of legal formalism in the 1870s. However, professional lawyers in the Ottoman Empire provided their services for legal representation not in Sharia courts, but in the newly developed Nizamiye courts, which fostered legal formalism with their inherent system of judicial review.[66]
In Habsburg Bosnia, legal representation was formally regulated as early as 1883, setting legal standards for the official recognition of lawyers and strictly limiting their number.[67] However, official documents indicate that civil courts regularly ignored these standards and allowed legal representation by unauthorized persons. More interestingly, the Attorney Regulations of 1883 only required candidates to pass an examination covering all civil and criminal law, as well as financial and administrative law. Knowledge of Islamic law was not a necessity, suggesting that lawyers were not specifically provided or envisioned for sharīʿa courts.[68]
Nonetheless, we can observe that lawyers in Habsburg Bosnia increasingly represented parties at sharīʿa courts. For example, two brothers from Sanski Most, Sulejman-beg and Ibrahim-beg Biščević, wanted to prevent the marriage of their sister to Sulejman Bilajbegović. They first claimed that their sister was only 13 years old when she was allegedly abducted and forced to marry Sulejman Bilajbegović. In addition, they asserted that the marriage violated the Islamic legal principle of equality (OT: küf[ü]v; Ar. kufʾ), which required both spouses to be of equal religious, social, and financial status. To underline their claims, the brothers hired Halid-beg Hrasnica, a lawyer, to file an appeal against the local qadi’s approval of their sister’s marriage in early 1913.[69]
Hrasnica had studied law in Vienna and returned to Sarajevo after graduating, where he opened a law office. Although he had no official training in Islamic law, he agreed to represent the two brothers at the sharīʿa court. Their appeal was based on an alleged failure to comply with procedural requirements, and stated that the original verdict did not specify how the investigation was conducted, who the witnesses were, and how the "marriageability" of the allegedly 13-year-old child had been determined. It also criticized the fact that the witnesses suggested by the brothers had not been questioned. Taken together, the written appeal decried the entire process as flawed and that the proceedings had been conducted "superficially."[70]
The concept of formal legalism was not widely adhered to in sharīʿa courts. Historically, Ottoman qadis enjoyed significant discretion and were not required to provide a justification or legal basis for their rulings. However, the Ottoman codification efforts in the nineteenth century brought greater standardization of court procedures and legal formalism, primarily in the Nizamiye courts.[71] Despite this, qadis in Habsburg Bosnia were not necessarily bound by strict legal formalism and were not obliged to validate the legal basis of their verdicts. For instance, even though Qadi Sadiković had been admonished on several occasions by the Supreme Sharīʿa Court for violating procedural regulations, it upheld his verdict in the appeal filed by Hrasnica.[72]
The Supreme Sharīʿa Court’s ruling, in turn, followed its usual formalistic approach, carefully stating the legal basis of its decision. As a result, the court dismissed the appeal and upheld the verdict of the local qadi by pointing out that both spouses met the criteria of equality, which had been confirmed by the sharīʿa court in Sanski Most, based on oral testimony. The Supreme Sharīʿa Court also referred to two important legal sources, the Dürer of Molla Hüsrev (that is, Durar al-ḥukkām fī sharḥ Ghurar al-aḥkām by the fifteenth-century scholar Mullā Khusraw), and the fatwa collection of Kadîhan (Fakhr al-Dīn al-Qāḍīkhān, d. 1196), both of which were well-known standard works in the Ḥanafī legal tradition and included in seventeenth-century bibliographical compilations of the Ottoman imperial canon.[73] On the other hand, the Supreme Sharīʿa Court stated that the plaintiff’s sister was of marriageable age and could therefore marry whomever she desired, referencing the Mecelle.[74]
The use of a combination of legal sources, including the Ottoman Ḥanafī canon from the seventeenth century and Tanzimat codifications, was common in Habsburg sharīʿa courts. Indeed, Habsburg administrators published in 1883 a manual on Matrimonial, Family, and Inheritance Law of the Mohammedans according to the Ḥanafī Rite, based on a compilation by Muḥammad Qadrī Bāshā, an Egyptian Islamic scholar, but never formally codified it into Islamic law for use in sharīʿa courts.[75] Instead, the provincial government issued additional regulations, which were used alongside classical Ḥanafī legal works and Ottoman Tanzimat laws as sources in sharīʿa courts.[76]
The Supreme Sharīʿa Court’s formal and detailed approach to citing the legal basis of its ruling was strengthened by the fact that the Habsburg authorities had implemented Austrian procedural law for court proceedings at this appeal body. Consequently, the latter’s records to a large extent reflected Austrian procedural concepts.[77] Still, the supreme qadis did not refer to concrete legal texts and sources in every judgment they handed down. When the Supreme Sharīʿa Court could not ascertain a need to specify their legal sources or was not explicitly asked to do so, it included only a short formulation as to whether a certain set of facts complied generally with the "sharīʿa regulations" (Bosnian: šerijatski propisi) or the "sharīʿa law" (Bosnian: šerijatski zakon).[78]
Moreover, citing legal sources and texts for the interpretation and application of Islamic law was also practiced in the Ottoman judiciary. According to Guy Burak, referring to authoritative texts of the Ḥanafī legal tradition dates to the sixteenth century and was accompanied by supervisory mechanisms. This was particularly evident in the case of provincial muftis, who were expected to cite the texts they relied on for their rulings.[79] In the same vein, Rubin has observed a "positivization of Ottoman law" in the Nizamiye courts of the late nineteenth century, which partially drew on previous practices but was also inspired by French models. Still, he argues that older practices could change their meanings in the new setting of positivist legalism.[80] Similarly, the following section claims that references to Ḥanafī legal sources should not be seen only as a consequence of formal procedural requirements but also a means through which Bosnian qadis could maintain their legal authority under Habsburg rule.
Negotiating Legal Authority
Despite the growing standardization and legal formalism in sharīʿa courts, the Ḥanafī legal doctrine continued to be applied in court practice. Habsburg reforms of sharīʿa courts did, however, affect the interpretation of Islamic law, particularly in resolving disputes pertaining to the limited jurisdiction of sharīʿa courts or legal reform. Historically, Islamic law was known for its diversity of legal interpretations, relying on a system based on divine revelation, a vast juridical literature, and authoritative legal interpretations. The sharīʿa , which encompasses not only legal norms but also general rules for Muslim life, such as regulations for prayer, could not easily be divided into individual areas of law, making it difficult to limit its scope solely to marriage and family. This resulted in multiple interpretations and, at times, conflicting legal opinions, particularly regarding the scope of Islamic law under Austro-Hungarian rule. These issues were frequently encountered in cases of interreligious marriages, concubinage, extramarital sexuality, and paternity.[81]
This state of affairs generated confusion, particularly among Habsburg officials and judges, who were mostly unfamiliar with Ottoman and Islamic legal traditions and who attempted to standardize sharīʿa court decisions and legal opinions by documenting them. This included, on the one hand, the compilation of the abovementioned Matrimonial, Family, and Inheritance Law of the Mohammedans according to the Ḥanafī Rite.[82] It made the basic Ḥanafī legal principles understandable for Habsburg judges that had mostly come to Bosnia from other parts of the empire and were familiar with codified Austrian civil law.[83] On the other hand, the Habsburg administration created a legal repository for future use by registering and archiving the court files of the Supreme Sharīʿa Court. Its records also reveal that judges referred to prior rulings, judgments, and legal opinions stored in this administrative archive for guidance in resolving then current legal matters. Owing to these factors, Islamic legal practice under Austro-Hungarian administration witnessed the amalgamation of two different legal cultures and traditions—the Ḥanafī and Habsburg.
As Paolo Sartori has documented for Islamic legal culture under Russian rule in Central Asia,[84] Habsburg authorities also expected definitive legal opinions from qadis. However, Islamic law was characterized by a variety of opinions, despite the growing canonization of the Ḥanafī school in the Ottoman Empire since the sixteenth century.[85] Nevertheless, the Habsburg government did not codify Islamic law in regard to marriage and family, making it difficult to enforce an Islamic legal orthodoxy from the top down. Instead, they relied on the expertise of local Muslim legal scholars for Islamic legal questions, enabling the latter to retain their legal authority and continue to apply the Ottoman Ḥanafī legal tradition.
This was demonstrated in the 1901 case of Avdo Kolašović. The Supreme Court sought the Supreme Sharīʿa Court’s opinion on the religious affiliation and jurisdiction of this illegitimate child, born to a Muslim father and non-Muslim mother. Nur Hafizović and Sulejman Šarac, the supreme qadis, stated that, as the child of a Muslim parent, Avdo was Muslim. Their opinion was that the jurisdiction for guardianship must align with religious confession, meaning that the sharīʿa courts had jurisdiction in the case. They also emphasized that the guardian must be a Muslim, and the non-Muslim mother had to raise the child in the Islamic faith until the age of seven.[86] Although the supreme qadis provided references to classical Ḥanafī collections of fatwas, including the works of Mufti Ibn ʿĀbidīn from Damascus (1784-1836), and to the Mecelle, their legal opinion generated confusion among the non-Muslim supreme judges.
They had consulted a similar case from a decade earlier, in which the responsible supreme qadis had reached a slightly different opinion. Then, the Supreme Sharīʿa Court had concurred with a Supreme Court ruling that a Catholic guardian should be appointed for the illegitimate children of a Muslim father and a recently deceased Catholic mother.[87] Due to these ambiguities, the Supreme Court asked Hafizović and Šarac to explain the difference vis-à-vis the previous case and to translate the exact Islamic legal stipulations they referred to in their opinion in Kolašović’s case.
The Supreme Sharīʿa Court subsequently clarified that the 1892 opinion, addressing the legal relationship between a father and his illegitimate child, was limited to the realm of kinship and inheritance, and thus did not broach the subject of religious affiliation. To support their December 1901 opinion, the supreme qadis included Arabic quotes in Latin transliteration from authoritative Ḥanafī works, which they also translated into Bosnian. Hafizović and Šarac quoted two passages from the Dürer, a work that compiled and explained the Ḥanafī doctrine’s most important legal opinions and one of the most important legal commentaries in the late nineteenth century alongside the Mülteka (the Multaqā ’l-abḥur of Ibrāhīm al-Ḥalabī). They also referred to a passage from ʿAlāʾ al-Dīn al-Ḥaṣkafī’s seventeenth-century al-Durr al-mukhtār and three passages from Ibn ʿĀbidīn’s nineteenth-century Radd al-muḥtār ʿalā ’l-Durr al-mukhtār, a commentary on the former. Both works were considered authoritative and regularly cited in sharīʿa court rulings in Bosnia.[88]
The case’s ultimate outcome is not documented in the archives, however, what can be ascertained shows that the Ottoman Ḥanafī legal tradition remained in use under Habsburg rule. At the same time, it is possible to see that the efforts of Habsburg officials to standardize and regulate Islamic jurisprudence were dogged by their lack of expertise in Islamic law and over-reliance, if not outright dependance on the knowledge and interpretation of Bosnian qadis. As a result, the Muslim supreme qadis were able to maintain their authority in interpreting Islamic law and to continue applying the Ḥanafī legal tradition with some adaptations to the legal practices prevalent in the Habsburg Empire. These modifications included references to codified Islamic law, such as the Mecelle and the 1883 Austro-Hungarian compilation of Ḥanafī legal norms on marriage, family, and inheritance.
In fact, this tendency to modernize and codify Islamic law had already begun during the Ottoman Tanzimat reforms, when legal codifications of Islamic law, such as the Mecelle, were drafted.[89] The difference in the Habsburg period was that the qadis were supervised by state officials who sought to standardize legal opinions and sources but who lacked sufficient knowledge of Islamic jurisprudence. As a result, Bosnian qadis had to present their legal opinions in a form that was understandable to Habsburg judges and officials, which meant including references to authoritative legal works and codifications of Islamic law translated into Bosnian. Through this process, Bosnian qadis were able to retain their legal authority.
However, when we examine attempts to reform the interpretation and application of Islamic law, we see that the qadis were unable to significantly deviate from established legal practices. Often, explicit approval from above, including the Supreme Sharīʿa Court, the Ulema-Medžlis, and even the Habsburg provincial government, was necessary to bring about legal innovations and new practices. For example, in the mid-1890s, several district qadis turned to the Supreme Sharīʿa Court because of the growing number of deserted wives. Since many of their husbands had emigrated to the Ottoman Empire, these women had been left without property or alimony, while also being both destitute and unable to remarry.
The Ḥanafī legal school (OT: mezheb; Ar. madhhab) followed in Bosnia had rather unfavorable provisions for such situations: A wife could only dissolve her marriage to a missing husband if he was declared dead. In the absence of official documentation, Ḥanafī jurists generally held that this was possible after a period of ninety to 120 years, making divorce unviable for abandoned women.[90] A qadi from the town of Visoko suggested in 1894 that in such cases the Mālikī doctrine, which allowed the dissolution of a marriage if the husband was absent and his whereabouts were unknown for at least four years, should be applied. After the Ulema-Medžlis issued a similar legal opinion, the Supreme Sharīʿa Court ruled on December 30, 1895, that in such serious cases, the qadis could refer to the Mālikī school, which allowed the dissolution of a marriage under the above-mentioned conditions.[91]
Not all women who had been abandoned by their husbands were eligible for divorce, however. For example, if they had been left less than four years earlier or if they knew the whereabouts of their husbands, they could not file for divorce. The outbreak of World War I increased the number of such women due to the male population’s mobilization and the ensuing economic hardship, reigniting debates about possible reforms of Islamic divorce. In this context, the reform-oriented Bosnian reis-ul-ulema Džemaludin Čaušević was inspired by a decision of the meşihat (OT, the office of the şeyhülislam) in Istanbul to adopt Ḥanbalī provisions allowing women to divorce if their husband had deserted them more than twelve months previously and left no property for their support. This facilitation of divorce was introduced by a fatwa issued by the şeyhülislam on February 28, 1916, which became effective by an irade-i seniyye (OT, "imperial rescript") on March 5, 1916.[92] After this legal reform, in mid-1916, Čaušević consulted with the şeyhülislam Ürgüplü Mustafa Hayri Efendi and proposed to do the same for Habsburg Bosnia. Therefore, the Supreme Sharīʿa Court drafted a similar decree, which was issued as a circular to all district sharīʿa courts after receiving formal approval from the provincial government in January 1917.[93]
Achieving legal solutions by borrowing from another legal school, a phenomenon known as takhayyur, was common in the late nineteenth-century Muslim world in order to reform Islamic legal practices.[94] Already in the mid-eighteenth century, as Selma Zečević has pointed out, some Bosnian muftis found it permissible for a woman to change legal school to obtain a divorce from a missing husband.[95] However, there were some general obstacles to legal borrowing in Ottoman court practice. Judith Tucker has explained how in eighteenth-century Ottoman Syria and Palestine, Ḥanafī judges strictly followed Ḥanafī doctrine, according to which deserted women seeking a divorce would turn to Shāfiʿī or Ḥanbalī judges, who would then apply the more favorable provisions of their respective schools, allowing for the marriage’s annulment in cases of desertion and nonpayment of alimony.[96]
Yavuz Aykan, on the other hand, has shown that some muftis considered it impermissible to turn to other legal doctrines for a divorce. For example, the mufti of Medina Esad al-Medeni (d. 1704), wrote a fatwa according to which a Ḥanafī woman could not go to a judge of another legal school for a divorce. However, he found a case from 1664 in which a woman from the city of Amid (modern-day Diyarbakır) converted to the Shāfiʿī school to obtain a divorce. Yet, the annulment of the marriage was performed by a müderris (OT, a religious professor) of the Shāfiʿī school and not by a judge of the Ottoman Ḥanafī court. Aykan views this as an indication of the limited authority of Ottoman qadis, who, as judges of Ḥanafī institutions, could not easily turn to other schools of jurisprudence.[97]
Such limited borrowing between legal schools is also evident in Habsburg Bosnia, where qadis sought explicit permission from above to apply other doctrines. This indicates that the Bosnian qadis adhered to legal doxa, which generally crystallized in the Ottoman Empire in the late nineteenth century and eventually led to various codifications of Islamic law, such as the Mecelle.[98] Although Islamic law in the fields of marriage and family was not codified by the Habsburg authorities, Austro-Hungarian officials were supportive of issuing decrees that outlined clear provisions for regulating Islamic marriage and divorce, especially when it involved borrowing from other legal doctrines not traditionally practiced in Bosnia.
Contesting Local Qadis
As outlined above, modifications to the Islamic legal system made by the Habsburg administration were contested among Bosnian Muslims and actively challenged by the Muslim autonomy movement. Nevertheless, Bosnian Muslims did use the newly established legal institutions, such as the Supreme Sharīʿa Court, to appeal the decisions of local qadis.
According to official figures, the Supreme Sharīʿa Court registered 578 petitions in 1888 and 868 in 1905.[99] However, there remained several obstacles to filing a complaint with the Supreme Sharīʿa Court: Unlike the first instance proceedings in local sharīʿa courts, which were conducted orally by a qadi, the judges of the Supreme Sharīʿa Court decided on appeals on the basis of the documented appeal and written court documents, without the plaintiffs being physically present. Since eighty-eight percent of the Bosnian population was illiterate, at least according to official figures from 1910,[100] submitting a written appeal could be problematic.
Alternatively, plaintiffs could file an appeal with the local qadi, who would write up the petition and forward it to the Supreme Sharīʿa Court.[101] At the same time, written petitions allowed local plaintiffs, even from geographically remote areas, to communicate directly with the judicial authorities in Sarajevo, bypassing the local qadi’s authority. This was further facilitated by the expansion of communication infrastructure, such as efficient postal services and telegraph lines, which had been established under Ottoman rule and allowed for quick and direct correspondence with the Supreme Sharīʿa Court.[102] Most complaints filed at the Supreme Sharīʿa Court sought a revision of a local qadi’s judgment, often using arguments based on Islamic legal stipulations of the Ḥanafī tradition. However, we can observe that local plaintiffs used the Supreme Sharīʿa Court to contest the local qadi’s authority, such as by claiming that he acted inappropriately or corruptly.
For example, in the spring of 1880, some Muslim citizens of Travnik filed a complaint against the local qadi, Jakub Arnaut, for alleged incompetence.[103] Or in the town of Derventa, in 1892, Mustafa Omer Efendić filed a complaint against the local qadi for an alleged insult.[104] In both cases, the provincial government, which had to rule on the charges, rejected them as baseless. The authorities only intervened in individual cases of accusations against qadis, especially when there was evidence of embezzlement of state funds and official fees. On these occasions, qadis were prosecuted and sentenced to prison or, for lesser offenses, reprimanded.[105] The rare interventions against local qadis may have been primarily driven by insufficient evidence and unverifiable accusations. In addition, the latter were subject to strict administrative control and, particularly during the first years of the occupation, were regularly checked for their ability and trustworthiness by Habsburg officials and the Supreme Sharīʿa Court.[106] Moreover, qadis had to meet the same general employment requirements as other Habsburg officials, such as swearing an oath to the emperor.[107] These measures likely helped build a certain level of trust between the Habsburg government and local Bosnian qadis.
Another reason for the administration’s non-intervention was that Habsburg officials and the Supreme Sharīʿa Court judges often suspected plaintiffs of weaponizing complaints about qadi misconduct. For example, in 1890, in response to a complaint filed by Asif-beg Kapetanović of Derventa against the district qadi, the Supreme Sharīʿa Court stated that it was common practice among local begs (noblemen) to accuse qadis of petty crimes, especially when the latter did not rule in the former’s favor. Therefore, it found Asif-beg Kapetanović’s complaint unfounded and his accusations mostly untrue.[108]
Even if in the present case archival documents do not clearly show the extent to which the Supreme Sharīʿa Court’s assessment was actually correct, it is more pronounced in other court cases in which plaintiffs used accusations against qadis as a means of supporting their legal claims. For example, Haso Bešlagić from Cazin complained to the provincial government at the end of October 1896 that the local qadi in Cazin, Hadžić, had offended him by insulting his wife. He also accused the qadi of accepting a bribe from his wife’s brother.
Several days earlier, Haso had taken Zlata Oraščanin from the village of Pištaline to marry him. However, it was disputed whether Zlata had joined Haso voluntarily, as her brother Miralem intervened against the planned marriage. Specifically, he complained to the sharīʿa court in Cazin that Zlata had been abducted against her will. After hearing Zlata’s testimony, District Qadi Hadžić ruled that she should return to her brother, as she was both a minor and did not want to marry Haso. Nevertheless, Haso filed a complaint with the Supreme Sharīʿa Court, which subsequently opened an investigation and questioned several witnesses to the trial, all of whom contradicted one another.
The muhtar (Bosnian, neighborhood headman) from Cazin, Osman Toromanović, confirmed the accusations against Qadi Hadžić, describing how during the trial he became irate and pulled down Zlata’s feredža (Bosnian, a type of garment typically worn in public by Muslim women), veil, and boots, while insulting her and Haso. On the other hand, the muhtar from Velika Kladuša, Omer Okanović said that Qadi Hadžić did not swear. At the same time, he questioned Qadi Hadžić’s judgment because he testified that Zlata had voluntarily gone to Haso and should be able to marry without a proxy. Qadi Hadžić vehemently denied these accusations, which were also supported by the testimony of a hodža (Bosnian, a religious teacher) from a nearby village and the Cazin Sharīʿa Court’s clerk. Because of these contradictory statements, the provincial government decided in May 1897 not to intervene in the matter, and Haso’s complaint was rejected.[109]
At other times, false accusations could have legal consequences: A complaint written on October 2, 1903, in the name of the "citizens of Banja Luka" accused the local district qadi Sadik Džumhur and a trainee at the sharīʿa court, Mehmed Ćesović, of having issued a false power of attorney for Hamid Husedžinović, according to which the latter could manage the assets of Meleća Šibić. The latter was quickly suspected of having written the complaint, which she ultimately confirmed during interrogation on October 21, 1903.
The story behind the complaint was that Meleća had been placed under guardianship in 1902 owing to "prodigality" and could therefore no longer manage her property herself. As she was unsatisfied with the choice of guardian to manage her property, she appealed to the local sharīʿa court against the appointment of her uncle Hamid Husedžinović. However, Qadi Džumhur rejected her complaint and confirmed that Husedžinović should administer Meleća’s property as guardian. Subsequently, in September 1903, Meleća filed an appeal with the Supreme Sharīʿa Court against Qadi Džumhur’s ruling.
Nevertheless, she did not even wait for the decision of the Supreme Sharia Court and drafted the abovementioned complaint in the name of the "citizens of Banja Luka" on October 2, 1903 with the help of a lawyer and his clerk. In it, she accused Qadi Džumhur and the trainee Ćesović of abuse of office. Džumhur, however, did not accept her slander and filed a complaint with the criminal court for "the wrongful accusation of abuse of office." As a result, Meleća was sentenced to seven days in prison by the criminal authorities. Meleća’s appeal did cause the proceedings to be reopened, however, the result is not documented among the archival files.[110]
These cases illustrate how plaintiffs strategically used allegations of misconduct against qadis, albeit often with moderate success due to insufficient or contradictory evidence. As Sartori has convincingly shown with reference to the Islamic legal system in Central Asia under Russian rule, the tendency of local populations to portray qadis as corrupt can be seen as a consequence of colonial administration. There, Russian authorities viewed local qadis with great suspicion and local plaintiffs integrated their doubts into their complaints. Thus, qadis became "colonial scapegoats" who were blamed for making certain legal claims.[111]
The situation in Habsburg Bosnia is quite similar: The Austro-Hungarian authorities often regarded the Bosnian qadis as untrustworthy and established mechanisms to control them—first and foremost the Supreme Sharīʿa Court in Sarajevo. As with the other civil servants, serious misconduct among qadis, delineated in a law passed in 1907, was punishable by transfer, demotion, or suspension.[112] This influenced the legal consciousness of the local population, who were well informed that qadis faced serious repercussions for misconduct. Accordingly, plaintiffs adapted arguments in their complaints and did not base claims solely on Islamic legal principles.
Nevertheless, it should be mentioned that allegations of corruption and misconduct against qadis had been widespread during Ottoman rule of Bosnia, and did not solely emerge during the Habsburg occupation. The Bosnian scholar Muhamed Emin Isević, for example, criticized the state of the administration in his treatise on The Situation in Bosnia (Ahval-i Bosna), written in the early nineteenth century, that described the qadis and naibs (Bosnian and OT, a substitute judge) as extremely corrupt and incompetent.[113]
Plaintiffs also used other strategies to challenge the authority of local qadis and to attempt to assert their legal claims in court proceedings. If they were dissatisfied with a qadi’s judgment, they appealed not only to the Supreme Sharīʿa Court but sometimes also to the Ulema-Medžlis. Such "jurisdictional jockeying" can be traced to the fact that the responsibilities of the Supreme Sharia Court and the Ulema-Medžlis for the interpretation and application of Islamic law were not clearly delineated.[114] For example, some plaintiffs who wanted to appeal a decision of a local qadi sent their complaint directly to the reis-ul-ulema, the chief mufti and highest religious authority for Muslims in Habsburg Bosnia.[115]
In one case, the plaintiff even explicitly asked to be judged by the reis-ul-ulema instead of a qadi: Džiha Imamović, the widow of a former qadi from Bijeljina, wrote a letter to the reis-ul-ulema just a few days after filing an appeal against the local qadi’s verdict. She disagreed with the latter’s decision that she, as her son’s guardian, should give the bride’s prompt dower (Bosnian: mehri muaddžel; OT: mehr-i muaccel; Ar: mahr muʿajjal) and the trousseau (Bosnian: džihaz; OT: cihaz) to her daughter-in-law. In her letter to the reis-ul-ulema, she also demanded that her case not be judged by a qadi but by the reis-ul-ulema himself, stating: "I do not want a qadi to judge me, but the reis-ul-ulema."[116]
Džiha presumably hoped for a more favorable ruling from the reis-ul-ulem a than from the Supreme Sharīʿa Court. And her letter did have an impact on the final verdict: After initially upholding the local qadi’s verdict on appeal, the Supreme Sharīʿa Court overturned the decision after the reis-ul-ulema forwarded Džiha’s letter to the appeal court. Instead, the supreme qadis recommended that her son and daughter-in-law seek a mutual agreement leading to a khulʿ divorce (one initiated by the wife and granted with the husband’s consent; Bosnian and OT: hul) before the local qadi in Bijeljina. However, if no agreement could be reached, the court would have to further clarify the exact distribution of goods and money.[117]
Conclusion
The integration of Islamic law into the newly established Habsburg administrative structures in Bosnia ushered in significant changes to the extant Islamic legal system. At the same time, some aspects of the Ottoman Islamic legal tradition were preserved. Based on an analysis of archival documents from the Supreme Sharīʿa Court, this article argues that the modifications made by the Habsburgs led to an amalgamation of the Ottoman Islamic legal tradition with Austro-Hungarian legal concepts in court practice, paving the way for new legal understandings and practices.
More specifically, the restructuring of the Islamic legal system under Habsburg rule granted external administrators more control over Islamic jurisdiction, while its scope was strictly reduced to marriage, family, and inheritance matters among the Muslim population. Concurrently, a significant part of the Ottoman Ḥanafī legal tradition, including the use of the Ottoman Turkish language and script and Ḥanafī legal provisions and textual sources, continued to be applied. This hybrid legal system witnessed frequent negotiations about how Austro-Hungarian and Ottoman Ḥanafī legal practices could be combined in practice or where boundaries between the two should be drawn. Simultaneously, this fostered new legal practices, such as increased proceduralization and legal formalism at sharīʿa courts. Although the Habsburg authorities certainly made significant interventions, some of the concepts they introduced were already familiar to the Ottoman legal system. Thus, a multi-level legal hierarchy with oversight mechanisms or legal formalism could be also found in the Ottoman Empire of the late nineteenth century.
Overall, Habsburg reforms to the Islamic judiciary were met with both opposition and approval. While qadis, particularly those serving at the Supreme Sharīʿa Court, were actively involved in promoting legal changes, the supporters of the Muslim autonomy movement opposed the reduced jurisdictional function of Bosnian qadis. Nevertheless, local actors, including qadis and plaintiffs, actively shaped the Islamic judiciary under Austro-Hungarian administration. Despite the efforts of Habsburg officials to standardize and unify Islamic legal practice, Bosnian qadis maintained some autonomy and the ability to further apply the Ḥanafī legal doctrine due to their legal expertise. Yet, their authority was simultaneously challenged by local plaintiffs who made use of the new legal institutions, such as the Supreme Sharīʿa Court, to focus on procedural and formal correctness as well as on accusations of misconduct or corruption to support their legal claims.
In conclusion, the integration of Islamic law into the Austro-Hungarian administrative structures in Bosnia can be seen as a process of translation of values, knowledge, and practices, resulting in a "hybridization" of the Ottoman Islamic legal tradition with Habsburg legal structures. Existing studies of Islamic law under Habsburg rule have primarily focused on legal norms and structures, thereby automatically emphasizing continuities or ruptures.[118] By zooming in on the micro-level, the present article offers a more nuanced view of the implications these changes had for Islamic legal practices on the ground. Rather than thinking solely about changes or continuities, this paper has highlighted the negotiations surrounding the amalgamation of new and old traditions that created new meanings and practices as well as the agency that local actors had in actively shaping legal practices.
Equally, this article has contributed to the recently growing interest in the status of Muslim communities in the post-Ottoman Balkans. In the neighboring nation-states that emerged following the Congress of Berlin 1878, Muslims were also guaranteed religious freedom and autonomy. Similarly to Habsburg Bosnia, Islamic religious and legal institutions were integrated into the new administrative structures and thereby played a crucial role in ensuring the rights of Muslim communities under Christian rule.[119] However, in contrast to Bulgaria, Serbia, or Montenegro, Bosnia was administered by another empire, the rule of which is often characterized in a historiographic sense as "quasi-colonial." It does not come as a surprise, therefore, that Habsburg reforms of the Islamic judiciary were, to some extent, inspired by colonial models, such as those in French Algeria. In the same vein, Islamic legal practice under Habsburg rule produced similar phenomena as in other Islamic legal systems under colonial rule, such as in Russian Central Asia. Consequently, examining Islamic legal practices under Habsburg rule can enhance our understanding of encounters between Islamic law and European or other legal traditions that occurred outside the Balkans.