Miscarriage to Freedom

Zoe Griffith, Brown University

These days, when the law gets involved in defining the relationship between a pregnant woman and her fetus, the news is highly politicized and rarely uplifting. It may come as no surprise that fetuses could carry significant legal weight even in the distant past. But if today we might worry that the law grants a fetus inordinate control over the body of the mother, in the early modern Ottoman Empire it seems that a mother could leverage a fetus towards greater control over her own body. The sijils of the shari'a court of seventeenth-century Tripoli (modern-day Lebanon) show us that pregnancy literally could set a woman free.

The following case from 1679 presents a multi-layered view of personhood and family in early modern Ottoman society. The plaintiff, a female Georgian slave called Radiya, appeared in court to plead against the heirs of Küçük Hasan Beşe, a recently deceased kapıkul (Janissary) of the Tripoli citadel and Radiya's former master.  The representatives of Küçük Hasan's widow, Hafiza bint Rajab, and minor children had counted Radiya alongside dozens of heads of water buffalo and acres of orchard land in drawing up an inventory of the deceased's assets. After calculating the total value of Küçük Hasan's heritable property (the value of his sizable eestate minus the value of his unfortunately sizable debts), the court would distribute the inheritance among his widow and her children according to the shares prescribed by shari'a law. Given these procedures, Küçük Hasan's widow Hafiza was perhaps understandably eager to count Radiya as just one more of her profligate former husband's "things." 

But though Radiya may have counted as one of Küçük Hasan's things, she didn't act like one. Like most humans, whether someone else's property or not, and unlike Küçük Hasan's ratty old couch, Radiya possessed the ability to, among other things, feel emotions, think rationally, and move on her two feet. And putting all of these abilities together, this particular piece of human property walked herself into court to testify about her situation. With the force of the law on her side, she declared that she had become pregnant by Küçük Hasan ten months earlier, but had miscarried after a four month pregnancy ("istamarra al-haml fi batniha mudda tazid 'ala arba'at ashur wa ba'd dhalik asqatahu mustabin al-khalq"). Though the fetus had not survived, the fact of her pregnancy was enough to establish her as the mother of her master's child ("wa innaha bisabab dhalik qad sarat umm walad"), a status which entitled her to freedom according to the shari'a. Meanwhile, in a socio-legal maneuver that would one day leave historians (at least this one) excitedly pondering the dynamics of Ottoman marriage, kinship, reputation, and moral obligation, Küçük Hasan himself had publicly announced radiya's pregnancy and subsequent miscarriage five months before his death. Armend with a fatwa affirming her claim in the eyes of shari'a jurisprudence and accompanied by witnesses who corroborated Küçük Hasan's public statement, Radiya presented herself in the courtroom to claim her freedom. She asked that the qadi declare her manumitted, remove her from the enumeration of Hasan's estate, and forbid the heirs from laying any further claim to her person.

Radiya's case appears amidst a small flurry of activity in the Tripoli court detailing the fallout from Küçük Hasan's outstanding debts at the time of his death. Surrounding cases describe the various sales aimed at paying off these debts, including a house for 12 ghurush, an orchard for 31 ghurush, and a large herd of water buffalo and assorted livestock for 400 ghurush. All of this property would otherwise have belonged to Hafiza and her children, Mustafa, Hasana, and 'Aisha. Hafiza was even forced to enter her own claim against her children's legal guardian (wasi) to obtain 100 ghurush as the remainder of her dowry (mahr). Financial hardship thus brought the surviving members of Küçük Hasan's household to the courthouse to wage a series of zero-sum battles. As we do a little cheer for Radiya the slave's legal victory, then, we are also uncomfortably confronted with the scope of a widow's financial troubles.

Scholars like Leslie Peirce and Beshara Doumani have performed brilliant feats with shari'a court records to explore sexuality, gender, family, and kinship in Ottoman society. Here, Radiya's case offers valuable insights into legal procedure and practice, into the position of slaves within the Ottoman household, and into early modern legal understandings of maternity and fetal life. However, like any Tozsuz Evrak entry (we hope), this case also raises some more nuanced (and unanswerable) questions: what drove Küçük Hasan to publicly attest to Radiya's pregnancy and miscarriage - thus facilitating her emancipation after his death - but not to manumit her himself? Who devised the plan to leverage her failed pregnancy into a claim for legal emancipation in the first place? How much did Hafiza hate Radiya's guts, or did the two women get along? Shari'a court records are notoriously stony and unhelpful on questions of motive, emotion, and personality, at least in the early modern period. Dear readers, let your imaginations run wild.

Source: Tripoli Islamic Court Records, 3:344 (top), 14 Rabi'l-Awwal 1090 / 25 April 1679.

Juris

prudence