Islamic Jurists, the Ottoman Empire, and the Principle of Pacta Sunt Servanda

Yasin Yildirim and Dr. Ekrem Zahid Boyraz

Yasin Yildirim is Lecturer at the Cankiri Karatekin University in the Kursunlu Vocational School of Justice and Doctoral Candidate at the Social Sciences University of Ankara in the Middle East Studies Programme.

Dr. Ekrem Zahid Boyraz is Doctor Academician, Lecturer at the Cankiri Karatekin University in the Kursunlu Vocational School of Justice.

Diplomacy is a branch of art and science that influences the decision-making mechanisms and behaviours of governments through set of established rules and principles.  Diplomacy has evolved over thousands of years, and has been shaped by different cultural methods. This paper studies the role of the “ilmiye” or ulama class in the diplomacy of the Ottoman Empire. The “Ilmiye” class which is one of the four basic institutions of the Empire that represents academic and judicial spheres which deals with doctrines and practices of Islamic Law. While some of the actions and practices of the class yielded very important and beneficial results, some of them violated the principle of Pacta Sunt Servanda, caused deep political and military crises, and harmed the spirit of justice. 

       This brief article focuses specifically on the legal approach of prominent figures such as Muhammed Ebussuud Effendy and Zenbilli Ali Effendy and how they altered the Ottoman Empire’s internal policies and diplomatic initiatives. It also suggests the importance of legal supremacy over political affairs: the doctrine of “public interest” should be prudently considered before rendering it the sole reason of critical decisions that would give great harms to both state and society.   

The Ottoman Empire and the State Mechanism

        The Ottoman Empire was one of the most significant states in the world history that existed between 1299 and 1922, and controlled a very vast area from the Strait of Gibraltar to the Caspian Sea, and from the steppes of Ukraine to the Horn of Africa. Thanks to its enormous economic, political and religious power, the empire was able to become an actor that could shape the world politics for ages. 

         The empire basically was constituted of 4 main classes / organizations[1] within the state mechanism, as; ilmiye(judicial, scientific and religious class), mülkiye (high-rank imperial administrative class), seyfiye (military class) and kalemiye (bureaucratic class). While all of these classes / organizations had unique duties, obligations and authorities, the ilmiye class and its ulama group were in a specific place as it had a great legal power that could legitimate or interdict actions and decisions of the Sultan’s himself and other high-rank officers. 

The Ilmiye Class and the Position of Shayk al-Islam 

        The İlmiye class is a professional group that exerted a great deal of influence in law, education, and religious services in the Ottoman Empire. Members trained and were educated and ratified in madrasahs, which are Islamic education institutions. Members of the İlmiye class were named as the ulama, meaning “scholars” in Arabic language. The most basic function of the ulama was to defend, interpret and apply the Islamic Law in social life and state administration.[2] As time passed, the ulama rose to a stronger and more effective position, and had a direct say in the governing of the empire, since the group had a power to issue official statements on certain topics upon the request of individuals or institutions, named as fatwa. In the Ottoman state mechanism, fatwas were only given by the Islamic jurists and especially, the Shayk al-Islam.[3] 

         The position of Shayk al-Islam was the leader of this class and considered as the most-knowledgeable Islamic jurist, and had been in effect since the 10th century in previous Islamic civilizations. This position was located after the Grand Vizier in state protocol, and was accepted as the representative of the Sultan in judiciary, educational and religious matters.[4] The Shaykh al-Islam was so formidable a position that even the Sultan’s himself could not influence in legal and procedural matters. The ilmiye class was highly respected in the state levels, and the people who undertook this task came to the fore. Especially in the 16th century, two prominent figures who served as Shaykh al-Islam were: 

  • Zenbilli Ali Effendy (1446-1526), a well-known Islamic jurist and scholar who undertook the position of Shayk al-Islam for 24 years during the reigns of, respectively, Bayezid II, Selim the Grim,[5] and Suleiman the Magnificent(Suleiman the Lawgiver).[6]. He is known for his bold stances in many controversial issues.[7] 
  • Muhammed Ebussuud Effendy (1490-1574), also known as Grand Hodja, another renowned Islamic jurist who served as lecturer, judge, chief military judge and Shayk al-Islam during the reigns of, respectively, Selim the Grim, Suleiman the Magnificent and Selim the Blond. In his time, role of the ulama in state administration and in domestic and foreign relations exponentially increased.[8]

         Beside these two, many other Shaykh al-Islam and ilmiye members issued fatwas and steered the diplomatic/political processes that would directly affect the internal and external affairs of the Empire. One of the most striking issues in all these processes was the fatwas issued by the ulama regarding the termination of agreements and other legal instruments, and non-compliance with them. The reason why fatwas in this manner are so important and they are the subject of this paper, is that the termination of treaties and agreements through fatwas is closely and directly related to the principle of Pacta Sunt Servanda that constitutes the very essence of both Islamic Law, and other contemporary legal systems.

The Principle of Pacta Sunt Servanda

         Pacta Sunt Servanda is one of the oldest, most basic principles in the science of law which predicts that an agreement, a contract must be obeyed by its signatories in all cases.[9] The principle has been protecting its importance for ages in all bilateral relations, in both international and interpersonal relations. Even though, this principle was firstly used in interpersonal relations in various terms and scenes, over time it turned an indispensable component of the international customary law.[10]  

         Pacta Sunt Servanda, also constitutes one of the most elementary values of the Islamic Law, likewise the Roman Law, and therefore it has a notable position in Islamic societies. As the principle is mentioned in many chapters of the Holy Qur’an such as Al-i Imran, Anfal, Tawba, Nahl and Isra, Pacta Sunt Servanda rises as a basic pillar for relations between countries, nations, individuals, private entities. According to this principle in Islamic legal perspective, it is also a must to obey an existing treaty, agreement or legal instrument, unless there is a force majeure, and violating such a legal document will always carry grave risks for both signatories of documents and other actors that are likely to be influenced.[11]

         In both Islamic Law and other ancient legal systems, Pacta Sunt Servanda symbolizes the essentiality of peace, tranquillity and serenity in all bilateral relations in both national and international levels, and continues its existence on the axis of goodwill. Owing to this principle, parties of a legal document find good chances to secure themselves against any probable violations of document, their direct and indirect reflections, and to pursue their commercial, legal, political agendas on a safe platform under the light of justice. This principle was an inevitable element that all Shaykhs al-Islam, Islamic jurists / judges and lecturers compulsorily accounted for when issuing their fatwas or giving their verdicts on every circumstances and relations regarding affairs of states or individuals. 

         In this regard, in order to understand how application and ignoration of this principle affected internal and external affairs of the Ottoman Empire, focusing on some specific figures, Ebussuud Effendy and Zenbilli Ali Effendy, and their fatwas on particular occasions presents massive importance to understand the influence of the ulama on the diplomatic relations of the Empire.

Ebussuud Effendy’s Fatwa, the Concept of Public Interest and Principle of Pacta Sunt Servanda

        During the 1530s and 1540s the political and economic rivalry between the Ottoman Empire and the Republic of Venice reached its peak. Due to various economic and political problems, such as the control of the commercial routes and islands in the Mediterranean, and Venice-supported pirates’ attacks on Ottoman subjects, the diplomatic relations between the two powerful countries were extremely strained leading to a major war between 1537 and 1540. Although a ceasefire briefly ended hostilities, purported violations by the Venetians again escalated tensions. Thus, the Sublime Porte or Ottoman central government demanded that Ebussuud Effendy issue a fatwa regarding the Venetians actions. Ebussuud Effendy issued a fatwa that stated, “…a fruitless peace cannot be legitimate… if a state of peace, permanent or temporary, seems useless, it turns a duty to terminate an existing agreement…”

         In his fatwa, the Grand Hodja also stressed that if “public interest” is the subject, a state of peace cannot be considered as sincere, thus terminating any legal document would be an appropriate move.[12] This fatwa and further steps that were taken by Ottoman high-ranking management caused a new crisis between countries leading to renewed military hostilities and resulting in an Ottoman victory. In short, “public interest” was accepted as a legitimate reason to break the existing agreement according to Ebussuud Effendy.

         However, even though the process that started with the termination of ceasefire agreement ended with the Ottoman victory, it broached a significant legal problematic: is “public interest” truly a legitimate reason for violating existing agreements? It seems doubtful. First, “public interest” is potentially too vague and general to bear the weight of breaking an international agreement. Second, and subsequently, it can be abused by members of the ulama or any other authority who are ignorant or have maleficent intentions.  Finally, abuse of the “public interest” doctrine might have been the cause of events such as the infamous execution of the Grand Vizier Ibrahim Pasha “the Westerner” while Suleiman the Magnificent was asleep in order to provide him plausible deniability; or the dubious grounds for executing Prince Mustafa, the Sultan’s eldest son.[13]. For these reasons and through these examples the doctrine of public interest appears untrustworthy.

         Indubitably, in an environment where one party does not fulfil its contractual obligations and duties adequately, the other party cannot be forced to fulfil its obligations or such an expectation cannot be considered reasonable. However, there is a very delicate balance to be struck here. So much so that only if it is demonstrated by concrete and strong evidences that one party does not comply with legal customs, the rules of the treaty and does not fulfil its duties, the revision or breaking of a treaty should be brought to the agenda as last resort possible. Otherwise, an agreement, a treaty, a state of peace would be violated for vain, even if the ostensible excuse would be the public interest. 

         Such a situation, on the other hand, would be clearly contradict the basic values of the law and diplomacy, especially the principle of Pacta Sunt Servanda, and may cause new and irreversible crises and wars between countries. Moreover, such a move was particularly detrimental for the image of a state like the Ottoman Empire that was known for its strong legal and diplomatic image, its success in complying with treaties, and its superior political morality.

         Nonetheless, unlike the Grand Hodja and his disputed fatwas, a specific figure and highly constructive example that attests the value of obeying agreements, is seen through the story of Zenbilli Ali Effendy and his understanding of the Pacta Sunt Servanda concept.

Zenbilli Ali Effendy and the Pacta Sunt Servanda

         The beginning of the 16th century saw the Ottoman Empire enjoying great political and military power, under the rule of Selim the Grim, who had conquered Egypt, the Levant and the Hejaz region. Despite the Sultan’s popularity and power, one Islamic jurist named Shaykh al-Islam Zenbilli Ali Effendy managed to stand against him in several occasions. 

         Shaykh al-Islam Zenbilli Ali Effendy, who served during the reign of Selim the Grim in 1500s and 1510s, is remembered for boldly confronting the Sultan by refusing to issue fatwas. The Sultan wanted to abolish the Roman Orthodox Patriarchate in Istanbul by terminating a specific legal document named as “Conqueror’s Edict”, that given by Mehmet the Conqueror, one of the most visionary, powerful and successful Sultans of the Empire, to found the Patriarchate and bestow fundamental social and economic rights to Orthodox subjects within the Empire.  To do so, he demanded that Zenbilli Ali Effendy issue a fatwa to that effect.

         However, Zenbilli Ali Effendy refused to issue a fatwa because he argued there was no legitimate reason for the repeal of the edict. Additionally, as the Zenbilli Ali Effendy did not give such a fatwa on the demand of the Sultan, he also warned the Selim the Grim that he would allow the Sultan to be dethroned if he dared to violate the Mehmet the Conqueror’s Edict without a legitimate fatwa. Zenbilli Ali Effendy thus managed to ensure the continuity of the Orthodox Patriarchate’s itself, and all rights and powers that recognized for the Orthodox subjects and other minority groups.[14] Zenbilli Ali Effendy’s refusal to issue the fatwa doomed the Sultan’s plans to abolish the church.

         Shaykh al-Islam Zenbilli Ali Effendy steadfast insistence on the primacy of the law was a notable example of the realization of Pacta Sunt Servanda. Such determination and courage of the Shaykh al-Islam is still being acclaimed by religious, legal and academic spheres in the world. So much so that, perhaps, one of the most important reasons why there is still a Roman Orthodox Patriarchate in Istanbul today is the courageous and lawful decision taken by Zenbilli Ali Effendy at that time.

 Conclusion: Effects of Fatwas

         It is known what a great role the Islamic jurists played in the legal infrastructure, social life and administrative mechanisms of the Ottoman Empire for ages. Additionally, it is also obvious how effective the Islamic jurists were in diplomatic relations with the fatwas they issued. However, the fatwas issued by the jurists that purports no inconvenience to break treaties or invalidate legal documents / instruments by relying on unclear reasons became extremely dangerous and controversial both in foreign and internal affairs, for the Ottoman Empire. Although, consequents of such acts and decisions might be positive at first glance just like in the Ottoman – Venetian crisis, in fact they gave direct and bitter effects on the Empire such as damaging the legal image and legitimating some unlawful or unjustified acts under the guise of the public interest.  

         The concept of public interest is, of course, the most fundamental justification for every administrative act and action done all over the world, and it should be so. This is why this justification has been in effect for centuries. In principle, this concept is the basis of every judicial, administrative, diplomatic and bureaucratic step, even if the individual, institutions and even states change. However, even today, it is possible to see a margin of error in the decisions and actions taken solely based on this doctrine. In following centuries, many mistaken fatwas regarding termination of legal documents or execution of some defiant figures, including Sultan’s themselves such as Osman the Young or Ibrahim I, were given for the sake of public interest, ostensibly. Particularly during the stagnation era of the Empire, the concept of public interest became the sole excuse of self-interested persons in state mechanisms. 

         Pacta Sunt Servanda, on the other hand, which is both an individual, a human and a social virtue, has found its place in all legal systems in a way that includes all human rights and humanity and protects their interests. The preservation and application of this principle in all events as much as possible will serve both legal security and stability and will protect the public interest in real terms. Thus, while making researches regarding law and history, inspecting the existing of the principle of Pacta Sunt Servanda on legal documents, instruments or decisions, should be the foremost step in order to access healthy results and hypotheses.

[1]      For an overview of class structure, see James Pickett, Polymaths of Islam: Power and Networks of Central Asia (Ithaca: Cornell University Press, 2020), 127-60.

[2]      Amit Bein, Ottoman Ulema, Turkish Republic: Agents of Change and Guardians of Tradition (Palo Alto: Stanford University Press, 2011).

[3]      M. Safa Saraçoğlu, “Economic Interventionism, Islamic Law and Provincial Government in the Ottoman Empire,” in Law and Legality in the Ottoman Empire and Republic of Turkey, ed. Kent F. Schull et al. (Bloomington: Indiana University Press, 2016), 85.

[4]     Ziya Kazici, Osmanli’da Egitim-Ogretim [Education in the Ottoman Empire] (Istanbul: Kayihan Yayinlari, 2020).

[5]     Frederic J. Baumgartner, “Selim the Grim, 1465-1520” Wiley Online Library, November 13, 2011.

[6]      Richard Bonney. “Suleiman the Magnificent, 1494-1566” Wiley Online Library, November 13, 2011.

[7]      Hayrullah Nedim, Seyhülislam Zenbilli Ali Efendi [Zenbilli Ali Effendy the Shayk al-Islam] (Istanbul: Camlica Basim Yayin, 2006).

[8]     Pehlul Duzenli, “A Bibliographical Approach to Seyhülislâm Ebussuûd Efendi”, Türkiye Arastirmalari Literatur Dergisi, 3, no.5 (May, 2005): 441-475.

[9]     Richard Hyland, “Pacta Sunt Servanda: A Meditation” Virginia Journal of International Law 34, no. 2 (1994): 405–433.

[10]    Anowar Zahid & Rohimi Shapiee, “Pacta Sunt Serrvanda: Islamic Perception”, JEAIL, 2 (2010): 375-385. 

[11]    Jack C. Plano & Roy Olton, The International Relations Dictionary” (Harlow: Longman Publishing Group, 1988).

[12]    Kemal Beydilli, “Foreign Affairs and Ethics of Politics”, İlmi Araştırmalar, 7, (1999): 47-56.

[13] Edward Seymour Forster, The Turkish Letters of Ogier Ghiselin de Busbecq, (Louisiana: LSU Press, 2005).   

[14]    Bulent Atalay, “A Historical Example about which the Individual is Bartered Away to the Society: The Abuse of its Ancient Privileges, which were given to be Asserted by Fener Patrirchate”, Journal of History & Future, 8, no.2 (2022), 430-461.