106 chapter 3
judges and the secular administrators of the realm. First (A132–46, T52–64), he
examines the legitimacy of the extra-canonical authority of the ruler (siyâsa):
not only, he contends, had the Prophet’s companions punished evildoers with-
out recourse to the Sharia in several cases but, also, present-day administrators
have the ability to make decisions, and this does not contradict it. The causes
of the need for such authority are many: first, widespread sedition; second,
cases which pertain to the common good but for which there are no Quranic
rules (such as the keeping of judicial registers, the mining of coins, and the
creation of prisons); and third (A136–37, T56), divergences in the Sharia laws
due to changes in necessary preconditions. The examples Dede Cöngi cites are
of a rather narrow nature (e.g. problems in accepting women’s testimony), but
in a more general vein he notes that it is quite appropriate to obey and pay
attention to the disputes of each period, which give rise to extensions of the
competence of political authority. A fourth (and very similar) cause is that if
mischief multiplies in society, broader measures need to be taken and so the
competence of political authority has to be expanded. Whenever historical
changes (tağayyür-i zaman) cause disputes and conflict, what was improper
in an earlier period might be considered proper at present, and consequently
extra-canonical authority could be properly extended (A139, T57). Furthermore,
this expansion was made in accordance with the rules of the Sharia, and, fur-
thermore (and this is the sixth cause), God himself granted such changes and
expansions, as for instance when, through the Quran, He permitted practices
previously prohibited. It is due to this reasoning that, for instance, the execu-
tion of habitual criminals (A142: sa ’i bi’l-fesad) by sultanly order is deemed
necessary. Dede Cöngi cites numerous authorities to the effect that this “ex-
ecution for reason of state” or siyaseten katl is proper, and even obligatory. Here
one could note the use of terms (sa ’i bi’l-fesad, siyaseten katl) that played an
extraordinary role in Ottoman penal law;21 similarly, Dede Cöngi also deals
with the various types of “discretional punishment” (ta ’zir) with a view to jus-
tifying Ottoman practices such as monetary fines (A167, T88–89).
After establishing that the canonical legitimacy of extra-canonical punish-
ment has been proven by means of Islamic jurisprudence, Dede Cöngi raises
the question of whether it is proper for judges to act, in penal and other cases,
according to these “political laws” (ahkam-ı siyasiye). He notes that, for the
Hanafis, it is an open question whether judges may use “political laws”. In a typ-
ical manner of fikh reasoning, he first cites the Maliki and Shafi’i (al-Mawardi’s)
opinion, namely that there are occasions in which things permissible for a
secular governor (wâlî) are improper for a judge, only to reject all of them by
21 See Heyd 1973, 192–198, 261–262.