Hermeneutical Injustice in Ottoman Courts

Islamic legal thought distinguishes between substantive justice, the rights and wrongs embodied in doctrine, and procedural justice, which governs the regular and impartial application of legal forms.¹ In this system, qada (adjudication) merely executes the Sharia’s rulings (hukm) based strictly on court evidence; thus, procedural access determines whether substantive rights can be claimed at all.² Scholarship on Islamic legal history often locates women’s legal disadvantage at the moment of testimony, treating the gendered witness rules deriving from Quran 2:282 as the source of inequity.³ Hanafi doctrine interprets Quran 2:282 to argue that a woman’s testimony is half a man’s testimony.⁴ Archival evidence complicates this account. Women actively litigated, proactively registered contracts, and initiated cross-gender lawsuits at high rates.⁵ Nonetheless, this active presence did not translate to procedural equality. Before evaluation, a woman’s testimony had to enter the court in a recognized form. This process required interpretive resources, such as witnesses and procedural knowledge, that the legal institutions demanded. I shall argue that hermeneutical injustice in eighteenth-century Ottoman legal settings operated through precisely this requirement; the unequal distribution of interpretive resources determined which injuries achieved recognition in the qadi courts and in the grievance forums.

This paper analyzes how procedural architecture structures access to justice, for women, across Ottoman legal forums through five sections. “Legal Legibility as Hermeneutical Injustice” theorizes this as a problem of hermeneutical injustice, the structural exclusion from the shared interpretive resources that validate one’s experience. The section shows how epistemic standards determined access before testimony was evaluated, and distinguishes testimonial injustice from hermeneutical injustice. “Ottoman Legal Forums” maps the landscape of Ottoman justice, contrasting the evidentiary demands of the qadi courts with the administrative responsiveness of mazalim and sikayet forums. “Women in Qadi Courts” examines women’s agency and constraints within the qadi courts. “Women in Mazalim and Sikayet forums” demonstrates how petitioning shifts procedural requirements without suspending them. “Comparative Analysis” synthesizes the two previous sections to demonstrate how Ottoman legal pluralism redistributed the hermeneutical injustice faced by women.

Legal Legibility as Hermeneutical Injustice

Analyzing legal disadvantage requires looking beyond the moment a judge evaluates a witness. The wrong that occurs at the moment a speaker’s claim is unfairly doubted on the basis of their identity is named testimonial injustice.⁶ In formal legal contexts, however, credibility is a portion of a longer procedural sequence. Before a woman’s testimony is doubted, her injury must be articulated as a recognizable legal grievance.

The concept of legal legibility captures this prior, structural hurdle. This paper approaches this hurdle as a form of hermeneutical injustice. Hermeneutical injustice occurs when a significant area of social experience is obscured from collective understanding owing to a prejudice built into shared interpretive resources.⁷ In a legal context, these shared resources are the categories and procedures of the state. Ottoman courts and grievance forums did not recognize general suffering; they recognized specific categories such as debt, inheritance, marriage, contract, abuse of office, or administrative failure. A woman’s grievance becomes actionable only when she can map her experience onto one of these categories. This requirement creates a condition of legal legibility.

The rules defining legal legibility generate what Jonathan Jenkins Ichikawa calls contextual injustice. This concept describes the employment of epistemic standards that produce formally correct judgments while systematically burdening particular subjects. The assertions characteristic of contextual injustice, Ichikawa notes, “will typically express truths and this is why they can be so insidious.”⁸ A qadi’s rejection of a woman’s claim for lack of sufficient witnesses applies proper rules of evidence. The qadi’s rejection is procedurally just. Instead, the injustice lies in the standard that renders her injury unprovable. As Ichikawa observes, “one’s ability to affect conversational standards is a kind of social power… distributed unevenly in society.”⁹ In Ottoman adjudication, this power resides in a doctrinal apparatus long before any individual woman appears before any individual qadi. Because those high evidentiary standards appear neutral, they effectively obscure the social difficulty of producing proof and incorrectly emphasize failure at the moment of testimony itself.

Fatema Amijee’s analysis of Quran 2:282 identifies a puzzle surrounding these standards. When a woman who has internalized the divine norm asserts it, taking her seriously paradoxically requires taking her less seriously.¹⁰ In Ottoman jurisprudence, this testimonial hierarchy functioned as the definition of just procedure. Ottoman women who understood the proof requirements as divinely sanctioned lacked the conceptual vocabulary to challenge them. Their injury lacked both a legal remedy and an institutional name.

Consequently, the historical archive functions as a record of hermeneutical injustice through these standards of legal legibility. Qadi records and grievance petitions preserve only those claims that successfully achieved institutional recognition. When subjects anticipate that they lack the resources to achieve this recognition, they withhold their claims. Kristie Dotson terms this dynamic testimonial smothering.¹¹ Absent legal pathways often conceal the types of injuries faced by women in the historical record, requiring a closer analysis of where standards of legal legibility applied.

Ottoman Legal Pluralism and the Forums of Legal Legibility

Ottoman subjects navigated a plural legal landscape. Disputants in eighteenth-century Ottoman Cairo could move among neighborhood Sharia courts led by qadis, Cairo’s Diwan al-Ali, Istanbul’s Divan-i Humayun, and informal mediated settlements registered by qadis.¹² This plural structure drew on a classical Islamic tradition dividing the administration of justice between formal adjudication and sovereign redress.¹³

The qadi court operated as a reactive forum bound by strict evidentiary formalism. Its primary function was qada, assessing evidence according to established jurisprudential rules in order to resolve disputes brought by private litigants.¹⁴ This formalism served a protective purpose, constraining judicial power and deflecting false accusations.¹⁵ To succeed, a plaintiff had to state a claim and produce proof. While jurists sometimes debated the theoretical scope of this proof, in practice the qadi court privileged direct oral testimony from eligible witnesses over unsupported allegations.¹⁶ Additionally, documents established prior legal facts, such as titles or contracts. In contested factual disputes, however, oral testimony remained conclusive.¹⁷ The qadi court translated injuries into a highly specific grammar of claim, denial, witness, document, oath, and judgment.

An alternative to the qadi court, mazalim and sikayet forums functioned as administratively responsive institutions. They redressed abuses and resolved tension between the state and its subjects.¹⁸ Motivated by petitions, subjects presented wrongs left unresolved by ordinary adjudication; these petition forums dealt with taxation, property seizure, and official abuse. Jonathan Brown explains this difference between qadi and petition forums through the concept of procedural latitude. The qadi was constrained to the Sharia’s procedural requirements, known as wajib. In contrast, the mazalim judge, often also an executive official, utilized cross-madhhab flexibility and circumstantial evidence.¹⁹ Both operated within Islamic law yet offered different architectures of legibility.

The line between these forums remained blurry. Paralleling the historical mazalim courts of earlier Islamic empires, the Diwan al-Ali in Ottoman Cairo followed the same procedure as the Sharia courts regarding oral testimony.²⁰ Oral testimony took precedence over paper, and the governor assessed evidence according to standard jurisprudential rules.²¹ Qadi and petition courts differed sociologically; the Diwan al-Ali was located in Cairo’s citadel and held the governor’s coercive authority. The Diwan al-Ali differed from the Divan-i Humayun, Istanbul’s imperial council. It functioned as a document-driven bureaucratic forum requiring archival verification and fluency in Ottoman Turkish. It routinely delegated cases back to local qadis when petitioners lacked documentation.²² The provincial Divan-i Rumili at Manastir received petitions, issued executive decrees, appointed agents, and directed enforcement. While it rarely absorbed cases where proof had failed in the Sharia court, Divan-i Rumili regularly took on claims that ordinary adjudication could not remedy; for instance, the absence of a defendant prevented a Sharia trial.²³

Women navigated the Ottoman legal system with these standards in mind. In the Manastir register, women constituted over fourteen percent of petitioners. This included high rates of non-Muslim and enslaved women operating without formal legal representatives.²⁴ The women petitioned regarding assault, honor violations, coerced sales, and unpaid wages. These injuries lacked the discrete witnesses required for qadi courts. The Divan-i Rumili’s unique standards widened the vocabulary of complaint, allowing women to seek recognition where the Sharia courts fell short.

Women in Qadi Courts

Women actively participated in the Ottoman legal order, confirmed by the archival record of the qadi court. Women utilized qadi courts as plaintiffs and defendants. Amira Sonbol’s analysis of Egyptian court sijjils demonstrates women proactively registering contracts, initiating divorce, and contesting property seizure.²⁵ In Cairo, women navigated neighborhood Sharia courts and mazalim courts, such as the Diwan al-Ali, to pursue property and custody claims.²⁶

Quantitative data clarifies the mechanics of this participation. Cosgel, Genc, Ozer, and Yildirim’s analysis of 2,524 individual disputes across Galata, Uskudar, Konya, and Kutahya between 1796 and 1844 reveals that women appeared as parties in roughly thirty percent of all cases. Of the 769 cases involving at least one woman, women initiated 457 cases against men. Men sued women in only 188 cases.²⁷ Women litigated with men at more than twice the rate at which men litigated against women, indicating that court use was an active strategic choice.

However, analyzing participation alone masks a procedural disadvantage. Women were less likely to win as plaintiffs by roughly eight percentage points against male defendants and ten points against female defendants. The gap was largest in property and probate disputes. It reversed in family disputes, where women’s accounts carried greater legal weight.²⁸ The authors demonstrate that this deficit is largely explained by a single mechanism: women faced weaker access to plaintiff-side evidence at trial. Presence and procedural equality are separable conditions, affirmed by the theoretical frame and the data. Thus, women not only faced testimonial injustice in courts, but hermeneutical injustice in testifying their experiences because of these evidentiary standards.

A woman’s claim succeeded when it could map her lived reality onto the court’s recognized categories of property, inheritance, marriage, divorce, debt or contract disputes. In Cairo’s Bab al-Shariyya court, Dallal clarified that her dowry was not part of her agreement to renounce claims regarding clothing debt against her former husband. The qadi notarized this agreement despite never receiving clear evidence supporting either side.²⁹ The court listened to the contract dispute regarding payment for clothing, and simultaneously was forced to adjudicate the separate dowry issue.

However, most properly categorized claims required proof. The Hanafi rule requiring two female witnesses to equal one male witness structurally halved women’s testimonial capacity. This codified epistemic standard materially determined litigation outcomes beyond identity prejudice. It was negligible in commercial hubs like Galata and severe in provincial courts like Konya and Kutahya.³⁰ This provincial disadvantage is hermeneutical injustice in a contextual form. It was reproduced through unequal access to the educational, social, and documentary resources that made evidence-building possible. The thirty percent participation figure likely overrepresents women with sufficient resources to navigate the court effectively. Women who were anticipating an evidentiary gap withheld their claims.³¹

The evidentiary constraint was most acute when injuries occurred in private spaces. Domestic violence and sexual assault routinely happened without eligible male witnesses. Women responded with a sophisticated strategy: they gathered witnesses in anticipation of disputes and shopped across madhhab lines. Egyptian women selected Maliki rules for maintenance and judicial divorce when Hanafi doctrine proved too restrictive.³² When formal adjudication appeared unwinnable, women used the public theater of the court to force mediated settlements. Baldwin’s Fatima bint al-Hajj Ahmad leveraged a renewed, legally baseless lawsuit to extract a favorable financial settlement.³³ This strategy depended on resources. It required a prior connection to the court, a trusted agent, and knowledge of mediation procedure (sulh). A woman possessing a document or a witness could navigate the evidentiary grammar for a successful case. A woman lacking those tools found her injury invisible.

Women in Mazalim and Sikayet Forums

Where the qadi court demanded litigation and formal proof, mazalim and sikayet forums offered women a path to legibility through petition and administrative correction. These forums grounded recognition in the sovereign’s duty to correct oppression and official abuse.³⁴ An injury framed as wrongful oppression activated an executive mandate that qadi adjudication did not carry. It required a plaintiff to name a wrong and a wrongdoer before a forum empowered to issue orders. The imperial Divan-i Humayun and the provincial Divan-i Rumili functioned to absorb claims that ordinary adjudication could not remedy.³⁵

Petitioning constituted a specific procedural form. An injury became administratively recognizable when written as a grievance, or the arzuhal. It was directed against a named wrongdoer, entered into a bureaucratic register, assigned for investigation, and converted into an executive order.³⁶ In Manastir, women translated household injury, labor exploitation, and physical violence into administrative grievances through precisely this mechanism. Rago alleged detention and the loss of a fetus at the hands of named agents. Maslina claimed thirteen years of unpaid wages against a named employer. Zulhan Hatun petitioned regarding assault and dishonor.³⁷ These injuries entered the register because the forum recognized physical coercion and prolonged labor exploitation as actionable wrongs requiring executive correction. The petition format accommodated these claims where the evidentiary demands of the qadi court did not.

The empirical record from Manastir illustrates the scale of this access. Michael Ursinus’s analysis of the KSB 64 register identifies 265 total petitions. Women constituted over fourteen percent of petitioners, compared with roughly five and a half percent in the Istanbul 1675 complaint register. Non-Muslim women accounted for approximately seven percent of Manastir petitioners, against a fraction of one percent in the Istanbul register.³⁸ Critically, Ursinus notes that there is no evidence that any of these women were represented by a wakil, or in the case of enslaved women, by their owner.³⁹ In contrast, women typically appeared through a wakil at the qadi court. The discrepancy in women’s participation between the urban Imperial Council at Istanbul and the provincial divan in Manastir reflects regional cultural attitudes. As mentioned earlier, the Hanafi rule concerning women’s testimony was negligible in commercial hubs, and severe in rural qadi courts. Thus, the Divan-i Rumili extended a form of direct institutional access that the qadi procedure in Manastir did not, representing a distinct provincial opportunity shaped by lower costs and proximity to the divan.

Nonetheless, women in urban centers also creatively utilized petitions. Ayisha successfully petitioned the Divan-i Humayun, in Istanbul, over profit rights to commercial properties by presenting a qadi-issued hujja directly to imperial officials. She secured an order that bypassed local resistance.⁴⁰ This success was conditional. Ayisha’s petition depended strictly on prior possession of a court-produced document. When Istanbul’s Imperial Council lacked sufficient documentary evidence, it routinely delegated cases back to local qadis. This returned litigants to the evidentiary requirements they had sought to circumvent.⁴¹ At Cairo’s Diwan al-Ali, Fatima proved that she was a free-born Muslim unlawfully enslaved by producing witnesses before the governor’s tribunal. She rectified wrong through the forum’s broader procedural latitude.⁴²

Grievance forums shifted procedural requirements without suspending them. Submitting a petition required scribes and geographic mobility to reach provincial or imperial centers. The provincial divan charged a registration fee and an agent fee. This monetized access at the point of entry.⁴³ Access to the executive tribunal did not guarantee substantive victory. Grievance forums expanded the range of cognizable injury, permitting women to name harms difficult to process before a qadi yet remained institutions of state power requiring translation and resources.

Comparative Analysis

Ottoman legal pluralism provided women with multiple pathways into the state record. It did not remove the structural conditions of their legal disadvantage. Each pathway enforced a distinct grammar of recognition and imposed its own architecture of hermeneutical injustice. This paper’s analytical task is to understand what their parallel existence reveals about the mechanics of procedural justice in Ottoman tradition.

In the qadi court, a wrong needed proof to be actionable. In a grievance forum, a wrong needed to be petitioned then translated into a categorized harm. The shift from proof to petition replaced an evidentiary constraint with a bureaucratic one. Both pathways demanded mediating resources. In the qadi court, those resources dictated whether a claim could be proven. In the grievance forum, they dictated whether a petition could be written, registered, and enforced.

The specific harms most likely to be invisible in qadi courts were precisely those requiring the most work to translate for grievance forums. Domestic violence and wage theft typically occurred without the male witnesses that qadi procedure required. These same injuries could enter the provincial sikayet register, but only when rendered in the administrative vocabulary of contract failure. This translation demanded scribal access and geographic mobility. A woman who lacked witnesses to prove assault before a qadi frequently also lacked the resources to petition a provincial divan. The two forums were not fully complementary in practice. Women who navigated both systems successfully—such as Ayisha petitioning the Divan-i Humayun with a qadi-issued hujja and the Manastir petitioners framing household injury as actionable grievance—often possessed procedural resources in one forum that translated into access in the other.

Khadduri’s distinction between substantive and procedural justice establishes a clear dynamic. A legal system can embody justice as a moral ideal while producing unequal outcomes through its procedural architecture.⁴⁴ Ottoman legal pluralism illustrates hermeneutical injustice in institutional form. Women’s participation in both forums was genuine and strategic. Comparing the forums reveals that women’s legal experience was determined primarily by whether their specific harms were legally legible.

Conclusion

The Ottoman historical record instantiates Khadduri’s distinction between substantive and procedural justice. Doctrine could affirm a woman’s right to maintenance and property, but procedure determined whether that right could be claimed. As Kamali notes, the qadi applies the hukm based strictly on admissible evidence.⁴⁵ Without procedural resources adequate to the court’s standards, a substantive wrong fails to be corrected.

The archival evidence confirms this dynamic across both qadi and mazalim courts. The Manastir register demonstrates that when the Ottoman state created an alternative petitionary forum, women marginalized by rural qadi courts utilized petitions at disproportionately high rates. They constituted over fourteen percent of petitioners, compared with roughly five and a half percent in the Istanbul imperial register. This migration confirms that women’s legal disadvantage was hermeneutically unjust. When the standards of interpretation changed, women’s participation followed suit.

Reading qadi registers and sikayet records for the standards of legibility that they presupposed reveals structural inequity. These institutions demanded proof requirements, documentary access, procedural knowledge, and scribal access before an injury was validated. Ottoman legal pluralism did not resolve this inequity. It merely distributed it across two different forums, each with its own conditions. The question the Ottoman archive poses is therefore under what conditions, in which forums, and at what procedural cost women’s injuries could be heard.