The Crimean Abdüssettār Efendi and His Epistle Tanbīh Al-Rukūd

Abstract

In Islamic criminal law, crimes are categorized into three parts: ĥadd (fixed),
qiśāś (retaliation) and ta‘zīr (discretionary). Maximum sensitivity was displayed
for the enforcement of ĥadd and qiśāś offenses in particular. As such offenses are
nonrecoverable after their enforcement, it was essential to be very circumspect
in this regard. Consequently, the conditions of the crime factors, from proof
of the crime to the enforcement, were difficult to satisfy, and Ĥanafī jurists
in particular have advocated that the factors emerging prior to or during the
enforcement and after the finalization of the judgment should be taken into
consideration in order to narrow the field of punishment and prevent potential
unjust treatment. Accordingly, the principle of enforcement which was a part of
the judgment was adopted for ĥadd crimes had essentially rendered the principle
of giving the benefit of the doubt to the defendant more functional.
However, it should be noted that the legal ruling that the ĥudūd (sing.
ĥadd) were part of the execution was not adopted by all the founding imams
of the Ĥanafī legal school. Abū Ĥanīfa and Imām Muĥammad, the founding
imams of the Ĥanafī legal school, adopted the view that the enforcement was
a part of the proceedings in the ĥudūd. They took into account the ĥadīths of
the Prophet Muĥammad, who ordered the reduction of the ĥudūd in the case
that doubts still persisted. These two imams were of the view that even after
the finalization of the verdict on the grounds that the injunction as found in the
hadiths was absolute, some of the incidental situations which transpired before
the enforecement had the effect of diminishing the punishment of the crime
of, for instance, adultery, theft and drinking. However, the other two Ĥanafī
imams, Zufar ibn Hudhayl and Abū Yūsuf, disagreed. According to them, due to their nature, punitive sentences do not allow amnesty, reduction, mitigation
or other forms of punishment. Therefore, even if incidental situations arose
after the finalization of the verdict, the realization of the enforecement remains
unaffected. Furthermore, the attitude of the Prophet Muĥammad in the incident of Śafwān b. Umayya forms a most important basis in this regard. They
argued that in other denominations, the enforecement was a separate process
from the judiciary and that the situations that emerged after the finalization of
the legal ruling would not prevent the enforcement. Subsequent Ĥanafī jurists
made this decision in the form of al-imđā’ min al-qađā’ fī al-ĥudūd.
When it comes to qiśāś punishments that concern only the rights of individuals, such penalties are different from ordinary punishments, primarily because
they constitute a violation of the individual’s life or bodily integrity. Therefore,
these types of offenses, in terms of their nature, allow different alternatives such
as forgiveness of the perpetrator, requesting retaliation or liability known as
diya (financial compensation) to the victim or relatives of the victim. Whether
the penalties for offenses can be included in the scope of this accident in order
to prevent possible damages and grievances that may arise after the finalization
of the legal ruling was also a matter of dispute among jurists.
Maĥmūd Hamza Efendi, the Mufti of Damascus, who was one of the
Ĥanafī jurists in the 19th century, and the Crimean Abdüssettār Efendi, who
held many important positions in the Ottoman State, especially as a constituent
of the Mecelle community, brought this issue back onto the agenda.
In the Ottoman Empire, the penalties for offenses could only be applied
after the approval of the fatwa and the removal of the farmān-ı ālī (exalted
imperial order). Given the transportation and communication facilities of the
period, it was almost impossible to impose such penalties, especially in areas far
from the center. The decision of retaliation took quite a long time until the enforcement of the verdict, during which the judge who passed the verdict could
either die or be dismissed. For this reason, justice was delayed because the punishments could not be carried out, and the trials could persist indefinitely. This
particular situation led to the emergence of injustices and new grievances. In
consideration of these issues, the mufti of Damascus, Mahmūd Hamza Efendi,
argued that the stake in question was for the enforcement of the punishments
and that these were outside the scope of the ordinance. Abdüssettār Efendi
claimed that the stake includes not only the limits but also the punishments.
For this reason, both Ĥanafī jurists tried to present their views on the subject
by referring to the main sources of the legal school. In the last period of the
Ottoman Empire, Abdüssettār Efendi furnished an explanation of the issue of
whether the enforcement was a part of the prosecution in the qiśāś penalties,
which was on the agenda once again, in his treatise Tanbīh al-rukūd.

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