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Article

Be Gentle to Them: Animal Welfare and the Protection of Draft Animals in the Ottoman Fatwā Literature and Legislation

Faculty of Divinity, Istanbul University, 34452 İstanbul, Turkey
Religions 2020, 11(10), 538; https://doi.org/10.3390/rel11100538
Submission received: 5 August 2020 / Revised: 16 October 2020 / Accepted: 16 October 2020 / Published: 20 October 2020
(This article belongs to the Special Issue Animals in Islam)

Abstract

:
Animal studies in the Islamic context have greatly increased in number in recent years. These studies mostly examine the subject of animal treatment through the two main sources of Islam, namely, the Qur’an and the traditions of the Prophet Muhammad. Some studies that go beyond these two sources examine the subject of animal treatment through the texts of various disciplines, especially those of Islamic jurisprudence and law. Although these two research approaches offer a picture of how animal treatment is perceived in Islamic civilization, it is still not a full one. Other sources, such as fatwā books and archive documents, should be used to fill in the gaps. By incorporating these into the pool of research, we will be better enabled to understand how the principles expressed in the main sources of Islam are reflected in daily life. In this article, I shall examine animal welfare and animal protection in the Ottoman context based on the fatāwā of Shaykh al-Islām Ebū’s-Suʿūd Efendi and archival documents.

In addition to the foundational sources of Islam and the main texts of various disciplines, the use of fatāwā (plural: fatwā) collections and archival documents will shed light on an accurate understanding of Muslim societies’ perspectives on animals. The fatāwā show us how the subject of animal treatment, together with its theoretical framework, is drawn from the different disciplines, how it is echoed in daily life, and how it is manifests in the courts. Legal regulations on animal rights and welfare in the Ottoman Empire reflect the broader meaning and implications of the treatment of animals. The law enacted and the legal infrastructure laid down ensures this treatment have yet to become the subject of extensive research. In this article, I will provide a brief introduction to the methodological problems of contemporary scholarship on animal studies in Islam. After that I will illustrate some examples from Ebū’s-Suʿūd Efendi’s fatāwā to show how the issue in hand was crystallized. Finally, I will focus on the legal regulations of the Ottoman Empire, and, in doing so, I will provide examples to demonstrate how the theoretical framework of animal welfare has taken on a social, legal, and cultural structure in addition to how it manifested in concrete practices over history.

1. Introduction

Studies on the history and culture of pre-modern Muslim societies contain important information that elucidates historical Muslim perspective toward various facets of life, and research, especially in the fields of jurisprudence, politics, economics, and theology, sheds light on the historical experience of Muslims in numerous areas. Indeed, these studies have allowed us to attain an intimate familiarity with the philosophical positions and lifestyles of past Muslim societies, the works they produced, the arts they developed, and the way they went about their daily lives. However, certain methodological problems regarding the sources on which some of these studies are based blemish the quality of the research conducted. I intend, therefore, to focus on one of these problems. Several of these studies examine the experiences of Muslim societies primarily through the foundational texts of Islam, i.e., the Qur’an and sunnah of the Prophet Muhammad1. In restricting their scope, such studies are able to showcase only a limited and otherwise incomplete aspect of the entire picture of the history of Muslim societies. The problems caused by limiting one’s examination of bygone Muslim societies and cultures to primary texts will be elaborated in greater detail below.
The Qur’an and the Prophet Muhammad’s teachings have, throughout history, constituted the very raison d’être for any institution established by Muslims. As the foundational sources of Islam, these two sources have served as the inspiration for every area, from science to art, and literature, to daily life. However, restricting one’s examination of Islamic culture to these two corpora of knowledge inevitably causes him/her to neglect other areas that have inspired and acted as interpreters of Islamic civilization over the course of time. Quite frankly, Islamic civilization is in absolutely no way limited to these two foundational sources. Au contraire, the disciplines, arts, and intellectual thought developed as a result of infusing the Qur’anic essence and sunnah into the different spheres of human activity must likewise be examined to see the whole picture of Islamic civilization. In the 19th century, however, a text-centric approach that narrowed the sources from which scholars would seek religious and cultural knowledge to these two corpora took root in academia and has continued to prevail to this day in modern scholarship (Kızılkaya 2019a, pp. 317–51; 2019b, pp. 199–219). I posit this approach still constitutes the predominant modus operandi in contemporary studies on Islam and Islamic culture.
Contemporary academic studies examine a wide variety of issues ranging from gender, homosexuality, jihād, heritage law, human rights, ḥalāl food, all the way to apostasy solely through these two sources, and especially through the Qur’an. This has led to a deficient understanding of how classical Islamic thought and culture developed in different temporal and geographical loci (Wadud 1999; Kugle 2010; Ali 2016; Ibrahim 2020). Restricting one’s approach to Islam in this manner is indeed a modern phenomenon with which Muslims living prior to the 19th century were unfamiliar. Before the 19th century, rather than producing knowledge directly from these two foundational texts, scholars would deal with emergent jurisprudential and cultural based on the knowledge that had been transmitted to them. Although these foundational texts constituted the very cornerstone of Islamic society, it was the Prophet himself who conveyed the primary message of Islam and, through his discernment and resulting actions, made it concrete and real-life applicable possible. His Companions, likewise, witnessed this entire process; they received the Qur’anic revelation in conjunction with prophetic practice. The initial transmission of religious knowledge was, therefore, one in which both words and acts (ʿamal) were inherently intertwined.
After the worldly departure of the Prophet, the Companions conveyed religious knowledge in a similar manner that incorporated both words and practice. They issued rulings based on the knowledge they had observed and learned from the Prophet, and, as people who witnessed revelation, they were taken as prototypical role models in their own societies. The method they followed while discussing various subjects in the study circles that they would form in the regions to which they travelled were, in turn, taken as the basis for discussing and disseminating knowledge by the greater Muslim community. Accordingly, the Prophet was the first source referenced by the Companions while interpreting a verse of the Qur’an; when they sought to understand the meaning of any particular verse, they would first try to discern how the Prophet himself understood, explained, and implemented it. Emulating this same method, subsequent generations would attempt to understand the prophetic tradition through how the Companions interpreted and applied it in their own lives. Muslim scholarship traditionally held that the Companions who had been first-hand witnesses to the Prophet’s behavior possessed sound knowledge of the context surrounding revelation and where the most qualified to decipher it (al-Dabūsī 2001). This approach to engaging these two primary sources of Islam continued in this fashion until the 8th century, at which time new disciplines began to emerge within the larger Muslim community. Still, this approach was perpetuated in the newly emergent schools of thought, constituting the fundamental principle on which knowledge produced in these schools was based.
As several disciplines began to emerge as distinct fields in 8th century Muslim society, this method was crystallized into a set theoretical framework. On the one hand, this method served as the foundation for knowledge produced in the fields of jurisprudence (fiqh), theology (kalām), and Sufism (taṣawwuf). On the other hand, however, books were penned delineating the very methodology of producing knowledge in these fields. Here, the point on which Muslim scholars both concentrated and agreed was that the two primary sources of religion, i.e., the Qur’an and sunnah of the Prophet, were complementary in nature. In other words, all schools of thought assented that the Qur’an could not be understood without the sunnah of the Prophet and that these two sources complemented each other. Likewise, it was acknowledged that the Companions who had witnessed it first-hand played an integral role in enabling us to understand the sunnah of the Prophet (al-Ghazzālī 1970).
Analyzing the knowledge that had been transmitted and deriving new knowledge from it was meticulously performed following the methodology developed by each school of thought (madhhab). This methodology was the subject of uṣūl al-fiqh, the very discipline dealing with how to follow a specific methodology while producing new knowledge. In the works of uṣūl al-fiqh, in addition to the two main sources of religion, the methods by which knowledge may be produced were expounded upon in detail. All uṣūl al-fiqh books written by scholars of the different schools of thought espoused similar sources of knowledge and methods; though they would differ from each other in certain details and nuances. However, since none of these schools allege that the Qur’an or the sunnah of the Prophet could be taken in a vacuum without considering any other sources to produce knowledge, I assert that producing knowledge strictly from these two sources is a modern phenomenon. In order, therefore, to conduct a thorough investigation and to reach a holistic understanding of the subject, it is necessary to examine other sources in addition to these two.
The second area to be examined at the foundational level is the collection of disciplines that reflect the acumen of previous Muslim societies. In particular, the disciplines of jurisprudence, theology, and Sufism capture the Muslim zeitgeist over the centuries, demonstrate how Islamic culture was perceived and constructed, and reveal the various dimensions of knowledge and their practical application in the every-day lives of Muslims. Indeed, only by looking at the books written in these disciplines is it even possible to comprehend how various disciplines transformed the knowledge revealed in the text of the Qur’an and the sunnah of the Prophet into scholarly knowledge. These sources illustrate how each school used divergent methodologies to construct the theoretical framework they then used to interpret a Qur’anic verse or Prophetic tradition. In addition, a comprehensive study of these books allows one to observe how information contained in the basic sources of religion was interpreted by different disciplines over time. As a matter of fact, a significant number of contemporary studies examining the classical Islamic period in this way have been produced. Yet, I assert that even this is an incomplete approach to the Islamic past and that it is thus necessary to engage the subject through alternative sources.
The methodological problem of those studies using the standard manuals developed by various disciplines to explore bygone Islamic cultures is that these disciplines were produced in an effort to provide standardized knowledge, to bring prevailing understandings in line with that of previous generations, and to demonstrate what ideal knowledge is. However, they do not provide an idea of how these were reflected in practice or how this standardized knowledge was applied in real life. This can be exemplified on many theoretical and practical issues discussed in the discipline of Islamic law. For this reason, other sources should be taken into consideration in studies on pre-modern Muslim societies. These include sources demonstrating how these laws played out in real life and were applied in a practical environment, namely, fatwā (plural: fatāwā)2, court records, and archives pertaining to legal regulations. The addition of these help mitigate the problems caused by reading about past cultures solely through primary texts, thereby giving a more holistic picture of reality.
Research adopting this approach is important in showing how knowledge related to a specific subject gradually becomes normative. Since the Qur’anic verses and Prophetic tradition are more apt to delineate guiding principles as opposed to specific rulings, the knowledge developed as a result of these two sources shows the approach adopted by diverse disciplines in light of pertinent issues dealt with in their domains. Fatwās, in being the first source illustrating how the approach followed by these disciplines manifests in daily life, play an important role in this regard. In the pre-modern period, Muslims would explain their problems and grievances to qualified legal scholars and structured their lives according to their judgment. Their questions and the answers given to them were collected in fatwā books. Therefore, fatwā collections showcase how the theoretical framework put forward in Islamic legal manuals was resonated in the daily lives of Muslims. Using books of jurisprudence to examine a subject, however, often fails to demonstrate just how pervasive and influential that specific subject was in the psyche of everyday people as they do not deal with the everyday problems faced by laypeople. Since fatwā collections consist of answers to the problems people encountered in their daily lives, these books offer a comprehensive illustration of how society functioned and with what challenges it was faced on a daily basis. As a result, fatwā books can be read as sources reflecting the events of the period during which they were penned just as much as history books written on past Muslim societies.
Since the inclusion of an even wider corpora of documents in which books of fatāwā are embedded offer a more lucid picture of the knowledge developed in Islamic jurisprudence, it is only pertinent to use both fatwā collections and additional archive material to ascertain how the knowledge in these foundational texts and various disciplines was crystallized and radiated in daily life. Fatwā books and other archive documents, such as court records and imperial edicts, contain valuable material on the life and psyche of Muslim societies living in divergent regions. Since these sources contain details on common disagreements, grievances, and administrative regulations, using them as historical documents allows us direct access to information about a specific region and period as opposed to the one-sided and sometimes warped depiction conveyed by those who chronicled and narrated events as they occurred.
We have the opportunity to study and observe Ottoman practices and its 600-year rich Islamic heritage and archives, as can be inferred from books of fatāwā, court records, and legal regulations. However, since a significant portion of Ottoman archive documents have yet to be made available on a digital platform and are written in Arabic script, researchers’ access to them is severely limited. Although the number of studies in this area have witnessed an increase in recent years, this number has yet to reach a satisfactory level. Based on the normative culture as may be inferred from other sources (e.g., fatwā collections and archives) that I have highlighted in this article, I will focus on the issue of animal welfare in a classical Muslim society. In particular, I will examine some issues related to the employment of animals and their welfare, protection of stray animals, and human-animal relations from the sources of Ottoman fatwā collections and other relevant documents.
Today, a plethora of studies dealing with diverse issues concerning animals in Islam exist. However, these studies have examined the issue mostly through the foundational texts of Islam (Tlili 2015), resorting only occasionally to sources of one or more other disciplines (Foltz 2005). Consequently, these studies were unable to reflect a complete understanding of the issue at hand and its surrounding context, including how the underlying message of the primary texts was put into practice. This gap may be filled by research that deals with how Muslims treated animals in their daily lives.
Here, I would like to underline a point; although my research deals with how animals were historically treated in a society, I do not approach the subject from the perspective of a historian. The way that I perform my examination is within the discipline of Islamic jurisprudence. Therefore, my study is more about the aspect of Islamic law regarding the issue in hand rather than the historical dimension of it. Accordingly, I am interested in this issue in a different way than a historian studying animals in general and animals in Ottoman Empire in particular would be. For instance, Alan Mikhail addresses these issues from an historical perspective (Mikhail 2014). In this article, I build on his scholarship by exploring the genre of fatāwā, as they provide another window into the tradition’s attitudes toward animals. Likewise, although studies examining animal treatment through foundational texts, such as Tlili (2015), are important sources for me, I shall deal with this issue through more concrete legal cases. In this regard, my work has a different nature than both text-centric and historic works.
In this study, I shall examine how animals were reflected in the legal regulations and court records in Ottoman society based on books of fatāwā and other documents. Given that the Ḥanafī school of jurisprudence supplied the theoretical framework that prevailed in the Ottoman Empire, I intend to demonstrate how the attitude of this specific school became normative within Ottoman culture. Since any discussion excluding the primary sources both of Islam itself and the Ḥanafī school of jurisprudence would be deficient, I shall address several issues related to animals in the books of fatāwā before moving on to legislation on animal protection in the Ottoman context. Thus, I intend to show how some issues drawn up in the foundational texts and legal manuals whose theoretical framework is embodied in a society.

2. Animals in the Fatwā Collection of Shaykh al-Islām Ebū’s-Suʿūd Efendi

Raised in the learned (i.e., ʿilmiye) class3, the Shaykh al-Islām (plural: Shuyūkh al-Islām) was the most competent authority able to express a legally binding opinion on issues in society during the Ottoman period4. Laws issued by the Empire and legal regulations were made only after being approval by the Shaykh al-Islām. Since the office of Shaykh al-Islām was the highest authority in religious issues within Ottoman society, Shaykh al-Islām was the most authoritative figure who grew up in the learned class (ilmiye class)5 and had the authority to express opinions on religious issues. Therefore, his opinion on legal issues not only represented the views of the highest religious authority but also directed the steps taken by the Empire in the field of law6. Although the office occupied by the Shaykh al-Islām emerged as an official authority in the Ottoman Empire during the 15th century, it became an important religious and bureaucratic institution in the 16th century. Shaykh al-Islām Ebū’s-Suʿūd Efendi (d. 982/1574)7, who made important decisions during the reign of Suleiman the Magnificent, played an important role in the evolution of this office.
Working in the Ottoman scholarly and state organizations for about sixty years, Ebū’s-Suʿūd Efendi held an exceptionally significant place among the Shuyūkh al-Islām of the Ottoman Empire. As a Ḥanafī jurist brought up in the madrasah system who successfully passed all scholarly and bureaucratic requirements, his views are important. This importance stems from the fact that as the head of the learned class, he was not only the highest religious authority of his time and the leading jurist of the period but was the representative of the Ḥanafī school of law in his time. Therefore, the collection of fatāwā that he issued on daily legal issues represents the approach of the Ḥanafī school on legal issues in the 16th century. There are several subjects pertaining to the protection, welfare, and rights of animals in the fatāwā issued by Ebū’s-Suʿūd Efendi. Since his views both shape the legal regulations of the Empire and reflect the Ḥanafī perspective toward animals, I consider his fatāwā to characterize not only the Ḥanafī but also Ottoman attitude toward animals.
Here, I would like to emphasize an important point regarding the Ḥanafī school’s view of animals. Although some jurists diverge from the school’s dominant position based on time period or geographical region, I believe the issue of animal welfare can be understood properly when the Islamic past is evaluated holistically. Since the base framework put forward by the Qur’an and the Sunnah is largely preserved, the differences emerging in each school are only in minor juristic differences. Therefore, claiming that one legal school has a more animal-friendly approach and is more attentive to the well-being of non-human beings is the result of a fragmentary approach to the issue at hand (Tlili 2015, pp. 225–44). However, the opinions expressed by jurists on whatever the subject may be are the product of specific periods and regions. As a matter of fact, many jurists belonging to the Ḥanafī school, which is not regarded as being necessarily animal friendly, have similar views to Shāfiʿī jurists. Given the fact that the foundational texts of Islam lay out very clear principles about the basic rights of animals that are binding on all legal schools, no major differences exist among them. The fatāwā and legal regulations I will discuss below show that there is no difference between the legal schools in this regard.
The period during with the Ottomans reigned is ideal for examining the theoretical and practical dimensions of the Ḥanafī school’s approach to animals. For it was during this period that master theoretical works in the field of jurisprudence were penned and that the principles set out in these texts were applied in real life. Therefore, Ottoman practices present us the opportunity to observe how the Ḥanafī school approached animals in an empirical manner. Ottoman practices have two dimensions, namely, fatāwā and archival documents, which include court records and governmental legislation. In this respect, Ebū’s-Suʿūd’s fatāwā are important in that they reflect the theoretical approach of a prominent Ḥanafī jurist of the period while simultaneously giving an idea about the daily events, questions posed to the courts, and the legal regulations of the state.
One of Ebū’s-Suʿūd’s fatāwā on this subject is as follows:
  • Question: is it permissible to use female water buffalos to draw ploughs and for coaches? Answer: there is no obstacle for this, but it is not befitting. If so, it must be very gentle8.
In this fatwā, the inquirer wants to learn whether a female animal can be employed in heavy work. The impetus for asking this question might have been that the female animal was less physically fit compared to the male and entailed the possibility of being pregnant or nursing. Shaykh al-Islām Ebū’s-Suʿūd Efendi answered the question about the capacity of the animal using the Qur’an, Sunnah, and sources of the Ḥanafī school. Since these texts do not discuss gender-based differences regarding the burdening of animals, Ebū’s-Suʿūd Efendi issued a fatwā stating that there is no textual obstacle in employing them for this work. Considering that the language used in Ottoman fatwā literature is concise and contains clear answers about whether a matter is permissible, it is the second part of Ebū’s-Suʿūd Efendi’s fatwā that is important for our specific purposes. Because his answer given might constitute grounds for people to engage in cruel practices, Ebū’s-Suʿūd Efendi adds that it would not be appropriate to use the female water buffalos in this way. This specific phrasing is an allusion to the concept of something’s being a reprehensible (makrūh) act in Islamic jurisprudence9. This answer indicates that people should avoid using female water buffalos to draw ploughs or coaches. However, according to the fatwā, if people must use female animals to do so in exceptional situations, it is to be done in a gentle manner.
The concept of being gentle underlined by Ebū’s-Suʿūd Efendi is an attitude that the Prophet Muḥammad emphasized in human-animal relations10. This concept forms the basis of human relations with animals, which the Qur’an itself acknowledges as being a society similar to humans11. He expresses that just as people have must be gentle with each other, so too should humans act in a gentle way with animals. Since the sayings and behavior of the Prophet Muḥammad are the fundamental references of Islamic jurisprudence, Shaykh al-Islām Ebū’s-Suʿūd Efendi issued his fatwā based on this principle emphasized by the Prophet Muḥammad.
The attitude Ebū’s-Suʿūd underlines here is dominant in his other fatāwā related to animal issues. Ebū’s-Suʿūd expresses the principle of gentleness more concretely in these fatāwā, namely, in how the human attitudes toward animals should be. In another fatwā asked to him, Ebū’s-Suʿūd Efendi is asked whether it were lawful (ḥalāl) to tie the heads and feet of their goats and shear their mohair with a comb and then either sell this mohair or make it into wool. Ebū’s-Suʿūd answered that although any earnings made would be lawful because these actions did not constitute severe cruelty toward the animal, shearing their mohair in such a way is unreasonable12. He states that since binding the animal’s head and feet in such way would cause it unnecessary discomfort and should therefore be avoided. If another means for shearing their mohair were feasible, then it would be unreasonable to use a comb to do so. It is clear that Ebū’s-Suʿūd gave this ruling because this example did not cause actual harm to the animal; instead, binding the animal’s feet and eyes in this manner caused it to feel discomfort.
Ebū’s-Suʿūd explicitly stated in another fatwā that any material gain would be forbidden if the animal were subject to maltreatment. Though scissors were generally used to gather a goat’s mohair, it was possible to obtain even more using an iron comb. However, Ebū’s-Suʿūd stated that if one were to cause harm to the animal’s skin, let alone its death, while using an iron comb to collect the animal’s mohair, the resulting material gain would not be illicit13. The fact that the Shaykh al-Islām’s ruled this action to be illicit first shows the religious judgment of that issue; however, the fact that this fatwā belongs to the Shaykh al-Islām caused the ruler to issue an edict prohibiting such acts and punishing those who fail to comply with the rules stated in the fatwā. This clearly shows that the judgment of this fatwā was not left to individuals’ personal discretion; it had direct legal ramifications.
The fatāwā of Ebū’s-Suʿūd forbidding harm to animals encompassed not only domestic animals but all animals. In other fatāwā, there are issues related to how people can benefit from these animals, as Ebū’s-Suʿūd accepts à priori the utilization of animals by humans. During his lifetime, there was no contention against using animals’ meat and milk as food for humans or against selling their wool; indeed, it was regarded as the right of mankind to benefit from them in this way. However, Ebū’s-Suʿūd issued fatāwā that prevented people from harming animals while extracting benefit from them. The rulings expressed in his fatāwā would, however, change depending on the extent of the harm caused to an animal. For example, although Ebū’s-Suʿūd affirms that humans have the right to obtain honey from a beehive, he adds that any extraction should be done without harming the bees. However, Ebū’s-Suʿūd was also asked whether it would still be sinful to extract honey if there were no way to do so without harming the bees. Although he stated that extracting honey would be reprehensible (makrūh), in the second part of the fatwā, he added that if it were necessary to remove the bees to obtain the honey, it should be done by burning incense near the hive so as not to cause undue harm to the bees14. This shows that although human benefit is considered in the fatwā, it is only possible to benefit from animals by acting compassionately toward them.

3. Legislation on Animal Protection and Working Conditions

The interpretation of the guidelines laid out in the Qur’an and the Sunnah in various disciplines reveals a rich corpus of literature on animal protection and welfare, both in practice and in theory. Moreover, the Ottoman period contains rich material that may be used to understand more clearly how this subject is reflected in practice15. Legal regulations and court records show how animal protection and welfare were realized in Ottoman society16. Before moving on to the practices of the Ottoman period, I first want to clarify a point here. Prior to employing machines to aid in performing manual labor, physical strength and brute force were necessities in all types of work and trade circles. As a result, animals that were stronger than human were heavily employed in workplaces. Horses, donkeys, and even oxen were used in mills, in selling kitchen materials on the streets, and in carrying water in Ottoman society. Though porters would carry loads on their backs, animals would carry much heavier loads. In fact, a group of them was called horse porters because they carried the loads with horses. This resulted in a multitude of legal regulations related to animals used to transport goods. Here, I shall investigate several examples of legal regulations to demonstrate how animal protection and welfare was realized in practice.
Legal regulations on animal rights and welfare in the Ottoman Empire extend back to its very foundation. Although I did not use archival documents from the formative period of the Ottoman Empire and instead focused on legal regulations issued from the beginning of the 16th century, reference to the previous rulings in several articles found in the Legal Codes (Kanunnāme) of later eras reveals that legislation on the protection of animals started during the Empire’s very inception. Enacted between 1502 and 1507 during the reign of Sultan Bāyezīd II, the Iḥtisāb Legal Codes for Bursa, Istanbul, and Edirne are important legal regulations as they were issued by scholars aware of ḥisbah17 law and Ottoman customs. Article 74 of the Bursa Iḥtisāb Legal Code stated that a horse should not be ridden or loaded without horseshoes (Kanunnâme-i Iḥtisāb-i Bursa 1935; Akgündüz 1990, p. 209). Article 58 of the Istanbul Iḥtisāb Legal Code issued during the same period sets similar rules for the protection and the welfare of load-carrying animals:
Let people not run injured foot horses. They must care for their horses’, mules’ and donkeys’ feet and put saddles on them. They should not put heavy burdens on animals, because animals are mute creatures… The porters should not put heavy burdens on animals, their burdens should be reasonable.
Similar legal regulations prohibiting behaviors that would cause harm to animals were made during the reign of Yavuz Sultan Selīm (1512–1520) following Bāyezīd II. Known as Kanunnāme-i Sultan Selim Hān, this Legal Code stated that animals’ saddles must be complete, their horseshoes must be inspected and robust, and their loads must not be heavy and that animal owners and porters failing to comply with these rules would be punished (Akgündüz 1991, p. 115). Likewise, Article 156 in the same Legal Code regulates the welfare of the packhorses, mules, and donkeys:
People must care for their horses, mules and donkeys and not make them walk without shoes. They should not put heavy burdens on them. Those who do not obey this, will be punished by the court and will no longer be able to use that animal.
Following the laws and practices issued after the reigns of Sultan Bāyezīd II and Yavuz Sultan Selim, the most comprehensive arrangement was made in 1587 during the reign of Sultan Murād III. In the Ferman (Imperial Edict) that Sultan Murād III sent to the Judge (Qādī) of Istanbul on Rabīʿ al-Awwal 9, 995/March 19, 1587, porters were forbidden to load mules and horses more than their capacity. Those who did not comply with the warnings and provisions of this Imperial Edict were to be subject to punishment (Refik 1336, pp. 95–96)18. Another Imperial Edict issued during the reign of Sultan Ahmed I (r. 1603–1617) included the same rulings as the previous Legal Codes, adding that courts would punish those who did not comply with the Edict’s rulings (Akgündüz 1996: p. 525).
An Imperial Edict sent to the Qādī of Istanbul during the reign of Sultan Mustafā III in 1179/1765 banned porters from riding horses after having unloaded their cargo (İstanbul Kadı Sicilleri 2019b: Verdict no: 604)19. During that period, porters used horses to carry their cargo within Istanbul. However, porters carrying loads through the bumpy streets of Istanbul were tired after lowering the loads off their animals’ backs. Wanting to return quickly to the commercial districts of the city to find more work, porters would ride their horses to save time. However, since the animals were also tired from the work, it was considered cruel to ride them back to the commercial district after finishing a delivery. Though legal regulations dealing with this had been issued previously, porters were lax in following them, which led to the Imperial Edict by Sultan Muṣṭafā III to include a punishment for disregarding the rule. The most striking point in this edict is the compassion shown to animals that compared their fatigue to that of humans and concluded that animals had the same right to rest as humans.
This edict clearly demonstrates that government did not leave animal welfare and the protection of animals solely to the mercy of humans. Although people were required to act morally toward animals and exhibit both gentleness and excellence in character in their relations with animals, the government’s systematic control of this shows how much importance society attached to this issue. The government even surveyed porters by sending undercover police who secretly followed porters and reported violations to the courts. As can be seen in the court decisions below, this regard for animal welfare by the government, shows the place of animals in Islam and what kind of changes its manifestation caused in human behavior.
After this Imperial Edict was affected, animals were to be rested for a period of time, and porters abided by these rulings. This edict was later supplemented by a subsequent edict issued in 1806 sent to the Qādī of Istanbul and the Agha of the Janissaries during the reign of Sultan Selīm III that tightened the prescriptions for protecting animals and their welfare (İstanbul Kadı Sicilleri 2019c: Verdict no: 130). According to this Imperial Edict, porters who used horses and donkeys in Istanbul to carry loads were forbidden from burdening their animals after the afternoon (ʿaṣr) prayer and on Fridays. An Imperial Edict issued during the reign of Sultan Mahmūd II in 1810 placed even more restrictive regulations on working hours. In this edict, the previous regulations about animal welfare were mentioned and it was stated that some people neglected these legal regulations and failed to comply with them. Sultan Mahmūd eventually issued an even more stringent edict, ordering that horses and donkeys used to transport timber, coal and lime from the piers of Istanbul should not begin working before sunrise, at mid-afternoon, or on Friday, should not be ridden after their loads have been lowered, and should only be ridden slowly without harming people. It was also decreed that those who did not comply with this Imperial Edict would be severely punished (İstanbul Kadı Sicilleri 2019c: Verdict no: 415).
Shortening the time that animals were to be employed and required animals to have a one-day break per week, these Imperial Edicts were issued because of the harm caused to animals by overworking them. These Imperial Edicts introduced important regulations protecting not only animals but society as a whole. In addition to these imperial regulations, several measures were taken to protect animals by the Ottoman administration. For example, numerous municipalities issued ordinances on animals. Whereas the number of ordinances issued was insurmountable, one clause is particularly salient: That animals must not be offended. According to this ordinance, animals were allowed to carry loads on their backs until the end of 1328/1910. After this period, it was stated that animals were prohibited to carry stones, bricks, wood, and iron on their back. Since new alternatives to carrying such loads emerged, the ordinance stated it was offensive for animals to be forced to carry them on their backs and therefore illegal (Ergin 1995, p. 1816). In addition to offending them, it was outlawed to beat animals, and to torture them was strictly forbidden. The ordinance also stated that inspectors would report any abuse to the authorities and that those who tortured animals would be punished (Ergin 1995, pp. 1670, 2084).
These Legal Codes and Imperial Edicts are early texts regulating animal welfare. The rights mentioned in the edicts and regulations made in connection with them refer to practices that predated the Ottoman Empire and that were perpetuated by them. As a matter of fact, al-Māwardī (d. 450/1058) mentioned that it was a crime to overload animals and not to lower their loads when their owners took a break. To prevent such misconduct, a muḥtasib20 would intervene to correct such behaviors (al-Māwardī n.d., p. 359; al-Sakhāwī 1994, pp. 68–70). Being both a bureaucrat and a jurist, the views of al-Māwardī show that the welfare of animals was also among the responsibilities of the ḥisbah organization, an important institution in Islamic law and administration. The practices of ʿUmar, the second caliph of Islam and the founder of the institution of ḥisbah, are among the sources of inspiration for al-Māwardī’s approach because ʿUmar once issued a deterrent punishment to a person who placed an excessive burden on a camel while performing his duty as a muḥtasib (al-Khallāl 1986, p. 45). The duties of the muḥtasib continued in a similar way during the Umayyad, Abbasid, Fatimid, and Ayyubid periods. For example, the muḥtasib in Cairo would send his staff to different parts of the city to inspect the bazaar and to prevent people from loading heavy cargos on animals (Ergin 1995, p. 302).
The content of the legal works and practices of earlier periods that considered the undue tiring of animals to be tantamount to torture led Sultans to take certain preventive measures to protect animals’ welfare. Ottoman court records contain a plethora of cases to be studied, as a considerable number of the cases mentioned in the court records are directly or indirectly related to animal welfare. There are many examples in the records on the nutrition, care, treatment, harm, and injuries of animals and their compensation21. In some cases, the Empire would allocate alimony for the care and feeding of animals upon the request of owners. In addition, many court decisions are related to the caring, feeding, and treatment of wounds of animals found on the street or in the wild22. For example, a court registry from Muḥarram 20, 926/January 11, 1520 indicates that a court allocated alimony payments of 1.5 Akçe (a silver Ottoman coin) per diem to be given to care for a stray animal found in Üsküdar (İstanbul Kadı Sicilleri 2019b, Verdict no: 773)23. The allocation by the state treasury for the maintenance of found animals is an important step for the animal welfare. The fact that these animals were abandoned meant that they lacked caregivers to meet their basic needs and it was seen as a duty of the state to provide for them.
Among the legal arrangements for animal welfare were a number of subsidies that the Empire gave to its citizens in this regard. For instance, tax deductions were given to those who cared for and supervised animals. An interesting example is the Imperial Edict sent to the Qādī of Istanbul in 1661 during the reign of Mehmed IV stating that no jizya was to be collected from eight Copts who fed state-owned dogs in Istanbul and who made tools for dogs’ need (İstanbul Kadı Sicilleri 2019a, Verdict no: 1116). The exemption from jizya, the tax levied on non-Muslim citizens living in a Muslim polity, meant a serious tax reduction for the eight Copts who took care of these dogs. Through this tax reduction, the Ottoman Empire undertook the responsibility of providing for animals using funds from the state treasury.
Among the measures taken to ensure animal welfare was the macadamizing of the pitched roads that animals walked through. Arrangements were made to prevent injuries caused by animals slipping and falling due to stones, holes, and other obstacles on the roads. To achieve this, the Istanbul Municipality stipulated in some of its contracts that the sharp edges of stones used in the roads were to be sanded down so that the animals would not slip (Ergin 1995, p. 2426).
The rights granted to dogs in the 17th century were eventually overturned in the 19th and 20th centuries, which led to their exclusion from society. The benefits offered to stray dogs were no longer distributed due primarily to environmental health and safety concerns. This new understanding emerged in the 19th century and began to spread throughout Ottoman lands in the early 20th century. Though dogs were not considered to be a harm to society, their place in the new social structure and its apparatus changed. The following conclusion by Mikhail sheds light on this new structure:
In the early decades of the nineteenth century, dogs’ in-betweenness became a problem in Ottoman Egypt. Canine in-betweenness posed a direct threat to the increasingly rapacious and powerful Egyptian state bureaucracy of this period. Dogs challenged its ideas and practices of order, its strict definitions of spaces and social roles, its disciplinary control and modes of policing, and its attempts to forge a legible society and economy.
A similar situation occurred during the dog massacre that took place in Istanbul in 1910. Some scholars explain that prior to this massacre, the streets of Istanbul were filled with dogs, which was out of line with the efforts made to Europeanize and modernize the Ottoman state during the 19th and early 20th centuries (Gündoğdu 2018). Other scholars, however, link this massacre to the urbanization process of Istanbul and argue that dogs became a dysfunctional element in the new status quo (Schick 2010, pp. 24–25). Regardless, a new social structure had emerged in which people’s views toward living in close proximity with animals changed.

4. Conclusions

The implementation of rules is equally as important as their theoretical dimension in animal studies. When it comes to the experiences of Muslim societies in animal studies, research has focused more on the theoretical dimension. Such an approach does not illustrate how this theory was implemented in practice, which caused it to reach incomplete conclusions. In this article, I attempted to show that only after taking practice into consideration can the subject of animals in Islam be properly understood. For that, I examined how the theoretical dimension on animal perception deduced from the Qur’an and Sunnah was put into practice during the Ottoman era. To this end, I focused more on the Ottoman fatwā literature, legal regulations, and court decisions.
For the fatwā literature, I chose the fatāwā of Shaykh al-Islām Ebū’s-Suʿūd Efendi as an example. Ebū’s-Suʿūd Efendi, a chief Ḥanafī jurist of the period and a figure who played a vital role in many legal regulations in the Ottoman Empire, pioneered principled developments in animal matters through the fatāwā he issued. As his rulings were directly influenced by the principles laid out in by the foundational texts of Islam, he directed the literature of Islamic law that was to come after him. His fatāwā on how humans should treat animals affected both jurists and the bureaucracy and provided important insight into animal protection.
Some of the important steps taken in this regard were the legal and legislative developments during the Ottoman period for animal care and welfare. In the works written on ḥisba, the organization in Muslim societies in charge of protecting and auditing public morality and order, the protection and observation of animals are included among the duties of this organization. Written during periods when animals were used to carry loads, these works focused on the necessity to approach animals with mercy and on ways to formulate principles for the gentle treatment of animals that did not cause them harm. It was further decreed that those who violated these principles of mercy and who harmed animals would be determined by this organization and then punished. This approach constituted the basis of the Imperial Edicts issued during the Ottoman period.
Issued since the foundation of the Ottoman Empire, Imperial Edicts underlined the prohibition of harm to animals carrying loads and punishment of those who violated it. In these Imperial Edicts, it was first stated that animals were not to be used outside of certain hours of the day and that animals carrying loads must be given time to rest. Over time, we observed that animals were further banned from being used to carry loads during specific times and days of a week. Issued in the 16th century and onward, Imperial Edicts continued to expand the rights of animals, eventually leading to rather strict measures, even by today’s standards, being taken. It is clear that the government attempted to protect animal welfare through legal regulations since its very foundation.
In addition to Imperial Edicts, important rulings on animal protection were made in the courts. Some measures were taken to protect stray animals and a budget was allocated from the state treasury to provide care for these animals. There were also numerous instances of tax reductions for those who cared for stray animals. Found in 17th century court records, these rulings show that concrete measures were taken to ensure the welfare of animals. Although the legal regulations of Muslim societies regarding animal welfare were not limited to the subjects I have dealt with in this article, perhaps the most advanced level in this regard are the foundations established for animal welfare during the Ottoman Empire.

Funding

This research received no external funding.

Acknowledgments

I would like to thank Sarra Tlili for her valuable comments and effort to improve the manuscript.

Conflicts of Interest

The author declares no conflict of interests.

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1
The word Sunnah means the generally approved standard or practice introduced by the Prophet Muḥammad. In Muslim legal and religious thought, it refers more specifically to his words (aqwāl), deeds (afʿāl), and his tacit approval (taqrīr) of his Companions’ words and deeds. See (al-Sarakhsī 2015; Juynboll and Brown 1997).
2
Fatwā is an “authoritative legal opinion given by a mufti (legal scholar) in response to a question posed by an individual or a court of law” (See http://www.oxfordislamicstudies.com/article/opr/t125/e646.). For a detailed discussion on fatwā, see (Masud et al. 1996).
3
For the ʿilmiye class, see (Atçıl 2009, pp. 489–512).
4
For Shaykh al-Islām and his Office, see (Repp 1986, 1997; Bulliet 1972, pp. 53–67).
5
For ilmiye class, see (Atçıl 2009, pp. 489–512).
6
For the Ottoman learned class, see (Zilfi 1988; Atçıl 2016).
7
For Ebūssuʿūd, see (Imber 1997).
8
“Mesʾele: Dişi su sığırını çifte ve arabaya istihdām cāʾiz olur mu? El-Cevāb: Menʿ yoktur amma münasib değildir, Olıcak bari ġayet rıfḳ ile olmak gerektir.” See Ebū’s-Suʿūd Efendi, Fetāvā-i Ebū’s-Suʿūd, Süleymaniye Library MS Ismihan Sultan 223, fl. 252a.
9
Makrūh is one of the five juridical qualifications in Islamic law and used for reprehensible and disapproved actions. Such actions are not legally forbidden in Islamic law but discouraged. Makrūh acts must be avoided because the continued and insistent commission of such acts usually lead to sin. See http://www.oxfordislamicstudies.com/article/opr/t125/e1400.
10
Once the Prophet’s wife ʿĀʾisha was upon a camel that was misbehaving so she began to drive the camel back and forth harshly. When the Prophet Muḥammad saw his wife’s behavior towards the camel, he asked her to be merciful to the camel saying “you must be gentle.” See (al-Qushayrī 1995).
11
Animals are mentioned as a society like humans in the Qurʾan “And there is no creature on the earth or bird that flies with its wings except [that they are] communities like you.” Sūrat al-Anʿām 6/38. For a detailed discussion of this verse, see (Tlili 2012, pp. 139–46).
12
“Mesʾele: Zeyd ile ʿAmr keçilerinin başların ve ayakların bağlayıb tiftikin tarak ile yolsalar mezbūr tiftiği beyʿ edib yāhud sof edib beyʿ eyleseler şerʿan aldıkları akçe helāl olur mu? El-Cevāb: Olur amma nā-maʿḳuldür. Ebū’s-Suʿūd.” See Ebū’s-Suʿūd Efendi, Fetāvā-i Ebū’s-Suʿūd, Süleymaniye Library MS Ismihan Sultan 223, fl. 252a.
13
“Mesʾele: Zeyd mülk olduğu keçilerin tiftiğin miḳrāż ile kesmek ile daḫī maḳsūd ḥāsıl olur iken yolmağın menfaʿati artıcak olur diye demir tarak ile yolub bażının derisi yırtılıb bażı daḫī helāk olsa bu maʿḳūle ile ettiği kesb şerʿan helāl olur mu? El-Cevāb: Ḥılline ḥükm olunmaz. Ebū’s-Suʿūd.” See Ebū’s-Suʿūd Efendi, Fetāvā-i Ebū’s-Suʿūd, Süleymaniye Library MS Ismihan Sultan 223, fl. 252a.
14
“Mesʾele: Bir kovanın arıların öldürmeden balın almak ḳābil olmadığı ecilden Zeyd arıların öldürüb balın almak ile ās̱im olur mu? El-Cevāb: Mekrūhtur. Ebū’s-Suʿūd. Cevāb-ı Diğer: Mekrūhtur, öldürmeden almağa saʿy etmek lāzımdır, tütsü ile alınır nesne yoktur. Ebū’s-Suʿūd.” See Ebū’s-Suʿūd Efendi, Fetāvā-i Ebū’s-Suʿūd, Süleymaniye Library MS Ismihan Sultan 223, fl. 252a.
15
For detail studies on animals during the Ottoman era, see (Faroqhi 2010; Mikhail 2014; Pinguet 2009).
16
There are some studies on animals, especially dogs in the Ottoman context but they are mainly focusing on the late Ottoman period. See (Gündoğdu 2018, pp. 555–74; Schick 2010, pp. 22–33).
17
Ḥisbah: The duty of enjoining good when it is neglected and forbidding evil when it is prevalent in society.
18
For similar practices and appointment of inspectors, see (Ergin 1995, p. 1810).
19
For similar rules in a Municipal Ordinances issued in 1908, see (Ergin 1995, p. 1810).
20
The holder of the office of al-ḥisbah was, in classical Islamic administrations, an executive falling roughly between the offices of judge (qādī) and court magistrate (maẓālim). Charged with enforcing public morality, overseeing public welfare, and supervising the markets, the muḥtasib had no jurisdiction to hear cases—only to settle disputes and breaches of the law where the facts were admitted or there was a confession of guilt. The muḥtasib was vested with discretionary powers through which he could intervene in such matters as commercial fraud and public nuisances.
21
The court rulings regarding the compensation for damages to rented animals varied depending on the degree that the owner’s benefit from the animal was hindered.
22
For detailed examples see (Kırımoğlu 2017).
23
For similar allocations, see (İstanbul Kadı Sicilleri 2008, 2010).
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Kızılkaya, Necmettin. 2020. "Be Gentle to Them: Animal Welfare and the Protection of Draft Animals in the Ottoman Fatwā Literature and Legislation" Religions 11, no. 10: 538. https://doi.org/10.3390/rel11100538

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