Law of the Ottoman Empire

Last updated April 27, 2024

The Ottoman Empire was governed by different sets of laws during its existence. The Qanun , sultanic law, co-existed with religious law (mainly the Hanafi school of Islamic jurisprudence).^[1]^[2]^[3] Legal administration in the Ottoman Empire was part of a larger scheme of balancing central and local authority.^[4] Ottoman power revolved crucially around the administration of the rights to land, which gave a space for the local authority develop the needs of the local millet.^[4] The jurisdictional complexity of the Ottoman Empire was aimed to permit the integration of culturally and religiously different groups.^[4]

Legal system

The Ottoman system had three court systems: one for Muslims, one for non-Muslims, involving appointed Jews and Christians ruling over their respective religious communities, and the "trade court". The codified administrative law was known as kanun and the ulema were permitted to invalidate secular provisions that contradicted the religious laws. In practice, however, the ulema rarely contradicted the Kanuns of the Sultan.^[5]

These court categories were not, however, wholly exclusive: for instance, the Islamic courts—which were the Empire's primary courts—could also be used to settle a trade conflict or disputes between litigants of differing religions, and Jews and Christians often went to them to obtain a more forceful ruling on an issue. The Ottoman state tended not to interfere with non-Muslim religious law systems, despite legally having a voice to do so through local governors.

The Ottoman Islamic legal system was set up differently from traditional European courts. Presiding over Islamic courts would be a Qadi, or judge. However, the Ottoman court system lacked an appellate structure, leading to jurisdictional case strategies where plaintiffs could take their disputes from one court system to another until they achieved a ruling that was in their favor.

Throughout the 19th century, the Ottoman Empire adhered to the use of three different codes of criminal law. The first was introduced in 1840, directly following the Edict of Gülhane, an event which started the period of the Tanzimat reforms. In 1851, a second code was introduced. In this one, the laws were nearly the same as the ones in the first code of laws, but included the rulings of the previous eleven years. In 1859, the Ottoman Empire promulgated a last code of law inspired by the 1810 Napoleonic criminal code. Each of these variations of code and legislations represented a new phase in Ottoman legal ideology.^[6]

The Ottoman judicial system institutionalized a number of biases against non-Muslims, such as barring non-Muslims from testifying as witnesses against Muslims. At the same time, non-Muslims "did relatively well in adjudicated interfaith disputes", because anticipation of judicial biases prompted them to settle most conflicts out of court.^[7]

Kanun

The Kanun fulfilled the role of Siyasa, being used along with religious law. Its use originates from the difficulty to address certain matters (such as taxation, administration, financial matters, or penal law) by Sharia alone, which led the Ottoman rulers to use the Kanun to supplement, and sometimes supplant, religious law. It also offered a way to overcome the problems posed by the extent to which Sharia depended on the interpretation of sources by the ulema, which had made legal standardisation problematic.^[2]^[8]

The Ottoman Kanun first began to be codified towards the end of the 15th century, after the fall of Constantinople in 1453. The expansion of the empire led to a desire to centralise decisions, and the Kanun allowed the sultan to become an unchallenged ruler, by granting him the power he needed to exercise his authority to the full.^[2]

The early Kanun-name (literally: "book of law") were related to financial and fiscal matters, and based on custom (örf), they tried to reconcile previously existing practices with the priorities and needs of the Ottoman state. Kanun-names were also granted to individual provinces following their conquest; these provincial books of law would typically maintain most of the taxes and dues existing under the previous rule, and simply adapt them to an Ottoman standard.^[2]

The use of Kanun redefined Ottoman society in a two-tiered hierarchy, with the askeri (or military) consisting of a tax-exempt ruling class which included the "men of the sword", the "men of the book", and the "men of the pen", while the rest of the population, labeled as the reaya ("flock") was at the bottom, with the duty to produce and pay taxes.^[2]

One example of Kanun was the "law of fratricide", which required the new sultan to kill all his brothers upon ascending the throne, and had been enacted for fear of a repetition of the fratricidal conflicts that had plagued early successions.^[2]

In Turkish, Suleiman the Magnificent is known as "Kanuni", the "Lawgiver", for his contribution to the formulation of Ottoman sultanic code.^[2]

Reform efforts

In the late 19th century, the Ottoman legal system saw substantial reform. This process of legal modernization began with the Edict of Gülhane of 1839.^[9] These series of law reforms (also referred to as Tanzimât Fermânı) began a new period of modernity in the Ottoman Empire that would pave the way for new Western ideas of politics and social ideology. These reforms included the "fair and public trial[s] of all accused regardless of religion", the creation of a system of "separate competences, religious and civil", and the validation of testimony of non-Muslims.^[10] Specific land codes (1858), civil codes (1869–1876), and a code of civil procedure also were enacted.^[10]

This reformation of the Ottoman legal system is attributed to the growing presence of Western ideology within Ottoman society. Critical areas of progressive law reform such as liberalism, constitutionality, and rule of law were all characteristics of the European system and began taking effect within the sectors of law that made up the Ottoman legal system.^[11] This ideology began to overtake Sharia law in fields such as commercial law, procedural law, and penal law and through these paths eventually into family law.^[11] Areas of life such as inheritance, marriage, divorce, and child custody were undergoing progressive transformation as European influence continued its growth.^[11] These reforms were also put in place at the insistence of the Great Powers of Europe as well as a response to them. The Europeans had begun to chip away at the edges of the Empire, and their power was growing in the region. After the Greek War of Independence, nationalism was on the rise in Europe, and Westerners thought they had a humanitarian duty to intervene on behalf of the Christians and Jews in the Ottoman Empire whom they saw as being unfairly treated.^[12] The British especially gained more power with the Treaty of Balta Liman in 1838, that required the Ottomans to abolish Ottoman monopolies and allow British merchants full access to Ottoman markets, as well as taxing them equally. Overall, the Ottoman Empire was feeling the threat of the Western powers' growing influence over the Empire in general, as well as the Jews and Christians living within the Empire. The Tanzimat reforms came about as a response to this as well as from an Ottoman desire to modernize to compete with the growing European powers.

Opposition to these legal changes can be found throughout historical accounts and historians believe that this reform was not due to popular demand of Ottoman citizens but rather to those who held power and influence within the empire.^[13]

These reforms also cultivated the version of Ottoman nationalism commonly referred to as Ottomanism.^[14] Influenced by European versions of a shared national identity, the Ottomans thought that creating an Ottoman Nationalism system where the state controlled all levels of government and social life, as opposed to the previous system where people were organized by individual community and reputation, that they could stave off the encroaching European influence over the Empire.

These reforms were based heavily on French models, as indicated by the adoption of a three-tiered court system. Referred to as Nizamiye, this system was extended to the local magistrate level with the final promulgation of the Mecelle, a code of Islamic law covering all areas of civil law and procedure except family law.^[15] In an attempt to clarify the division of judicial competences, an administrative council laid down that religious matters were to be handled by religious courts, and statute matters were to be handled by the Nizamiye courts.^[10] Family law was codified in 1917, with the promulgation of the Ottoman Law of Family Rights.^[16]

Copyright

As the Mecelle had no copyright codes, the empire's first code was the "Author's Rights Act of 1910" (Hakk-ı Telif Kanunu, 2 Düstor 273 (1910), 12 Jamad ul Awal 1328 or 22 May 1910), which only protected domestic works. The empire was not a part of the Bern Convention.^[17]

Related Research Articles

A fatwa is a legal ruling on a point of Islamic law (sharia) given by a qualified Islamic jurist (faqih) in response to a question posed by a private individual, judge or government. A jurist issuing fatwas is called a mufti, and the act of issuing fatwas is called ifta'. Fatwas have played an important role throughout Islamic history, taking on new forms in the modern era.

The Ottoman Empire, historically and colloquially known as the Turkish Empire, was an imperial realm that spanned much of Southeast Europe, West Asia, and North Africa from the 14th to early 20th centuries; it also controlled parts of southeastern Central Europe between the early 16th and early 18th centuries.

Sharia is a body of religious law that forms a part of the Islamic tradition based on scriptures of Islam, particularly the Quran and hadith. In Arabic, the term sharīʿah refers to God's immutable divine law and this referencing is contrasted with fiqh, which refers to its interpretations by Islamic scholars. Fiqh, practical application side of sharia in a sense, was elaborated over the centuries by legal opinions issued by qualified jurists and sharia has never been the sole valid legal system in Islam historically; it has always been used alongside customary law from the beginning, and applied in courts by ruler-appointed judges, integrated with various economic, criminal and administrative laws issued by Muslim rulers.

In Islam, the ulama, also spelled ulema, are scholars of Islamic doctrine and law. They are considered the guardians, transmitters, and interpreters of religious knowledge in Islam.

<span class="mw-page-title-main">Tanzimat</span> Ottoman Empire reform period (1839-1876)

The Tanzimat was a period of reform in the Ottoman Empire that began with the Gülhane Hatt-ı Şerif in 1839 and ended with the First Constitutional Era in 1876. The Tanzimat era began with the purpose not of radical transformation, but of modernization, desiring to consolidate the social and political foundations of the Ottoman Empire. It was characterised by various attempts to modernise the Ottoman Empire and to secure its territorial integrity against internal nationalist movements and external aggressive powers. The reforms encouraged Ottomanism among the diverse ethnic groups of the Empire and attempted to stem the rise of nationalism in the Ottoman Empire.

The Ottoman Empire developed over the years as a despotism with the Sultan as the supreme ruler of a centralized government that had an effective control of its provinces, officials and inhabitants. Wealth and rank could be inherited but were just as often earned. Positions were perceived as titles, such as viziers and aghas. Military service was a key to many problems.

The Gülhane Hatt-ı Şerif or Tanzimât Fermânı was a proclamation by Ottoman Sultan Abdülmecid I in 1839 that launched the Tanzimât period of reforms and reorganization in the Ottoman Empire. The 125th anniversary of the edict was depicted on a former Turkish postcard stamp.

In the Ottoman Empire, a millet was an independent court of law pertaining to "personal law" under which a confessional community was allowed to rule itself under its own laws.

Ahmed Cevdet Pasha or Jevdet Pasha in English was an Ottoman scholar, intellectual, bureaucrat, administrator, and historian who was a prominent figure in the Tanzimat reforms of the Ottoman Empire. He was the head of the Mecelle commission that codified Islamic law for the first time in response to the Westernization of law. He is often regarded as a pioneer in the codification of a civil law based on the European legal system. The Mecelle remained intact in several modern Arab states in the early and mid-20th-century. In addition to Turkish, he was proficient in Arabic, Persian, French and Bulgarian. He wrote numerous books on history, law, grammar, linguistics, logic and astronomy.

Atatürk's Reforms were a series of political, legal, religious, cultural, social, and economic policy changes, designed to convert the new Republic of Turkey into a secular nation-state, implemented under the leadership of Mustafa Kemal Atatürk in accordance with the Kemalist framework. His political party, the Republican People's Party (CHP), ran Turkey as a one-party state and implemented these reforms, starting in 1923. After Atatürk's death, his successor İsmet İnönü continued the one-party rule and Kemalist style reforms until the CHP lost to the Democrat Party in Turkey's second multi-party election in 1950.

The Imperial Reform Edict was a February 18, 1856 edict of the Ottoman government and part of the Tanzimat reforms. The decree from Ottoman Sultan Abdulmejid I promised equality in education, government appointments, and administration of justice to all regardless of creed. The decree is often seen as a result of the influence of France and Britain, which assisted the Ottoman Empire against the Russians during the Crimean War (1853–1856) and the Treaty of Paris (1856) which ended the war.

The Mecelle-i Ahkâm-ı Adliye, or the Mecelle in short, was the civil code of the Ottoman Empire in the late 19th and early 20th century. It is the first codification of Sharia law by an Islamic nation.

The Constitution of the Ottoman Empire was the first and only constitution of the Ottoman Empire. Written by members of the Young Ottomans, particularly Midhat Pasha, during the reign of Sultan Abdul Hamid II, the constitution was in effect from 1876 to 1878 in a period known as the First Constitutional Era, and from 1908 to 1922 in the Second Constitutional Era. After Abdul Hamid's political downfall in the 31 March Incident, the Constitution was amended to transfer more power from the sultan and the appointed Senate to the popularly-elected lower house: the Chamber of Deputies.

In the Ottoman Empire, women enjoyed a diverse range of rights and were limited in diverse ways depending on the time period, as well as their religion and class. The empire, first as a Turkoman beylik, and then a multi-ethnic, multi-religious empire, was ruled in accordance to the qanun, the semi-secular body of law enacted by Ottoman sultans. Furthermore, the relevant religious scriptures of its many confessional communities played a major role in the legal system, for the majority of Ottoman women, these were the Quran and Hadith as interpreted by Islamic jurists, often termed sharia. Most Ottoman women were permitted to participate in the legal system, purchase and sell property, inherit and bequeath wealth, and participate in other financial activities, rights which were unusual in the rest of Europe until the 19th century.

A kadi was an official in the Ottoman Empire. In Arabic, the term qāḍī typically refers to judges who preside over matters in accordance with sharia Islamic law; under Ottoman rule, however, the kadi also became a crucial part of the imperial administration. After Mehmed II codified his Kanun, kadis relied on this dynastic secular law, local customs, and sharia to guide their rulings. Along with adjudicating over criminal and civil matters, the kadi oversaw the administration of religious endowments and was the legal guardian of orphans and others without a guardian. Although Muslims, in particular Muslim men, possessed a higher status in the kadi's court, non-Muslims and foreigners also had access to the judicial system. Under the Ottomans' initial system of feudal land grants, the timar system, the kadi served as an important check on the power of the local and regional military lords. Despite the unquestioned authority of the sultan, kadis possessed a certain degree of autonomy in their rulings.

The language of the court and government of the Ottoman Empire was Ottoman Turkish, but many other languages were in contemporary use in parts of the empire. The Ottomans had three influential languages, known as "Alsina-i Thalātha", that were common to Ottoman readers: Ottoman Turkish, Arabic and Persian. Turkish was spoken by the majority of the people in Anatolia and by the majority of Muslims of the Balkans except in Albania, Bosnia, and various Aegean Sea islands; Persian was initially a literary and high-court language used by the educated in the Ottoman Empire before being displaced by Ottoman Turkish; and Arabic, which was the legal and religious language of the empire, was also spoken regionally, mainly in Arabia, North Africa, Mesopotamia and the Levant.

Sharia means Islamic law based on age-old concepts. Since the early Islamic states of the eighth and ninth centuries, Sharia always existed alongside other normative systems.

Qanun is an Arabic term that refers to laws established by Muslim sovereigns, especially the body of administrative, economic and criminal law promulgated by Ottoman sultans. It is used to contrast with sharia, the body of law elaborated by Muslim jurists. It is thus frequently translated as "dynastic law."

The Ilmiye is one of four institutions that existed within the state organisation of the Ottoman Empire, the other three being the Imperial (mülkiye) institution; the military (seyfiye) institution; and the administrative (kalemiye) institution. The function of the Ilmiye was to propagate the Muslim religion, to ensure that Islamic law was enforced properly within the courts, as well as to ensure that it was interpreted and taught properly within the Ottoman school system. The development of the Ilmiye took place over the course of the sixteenth century, absorbing the Ulama, the educated class of Muslim legal scholars, in the process.

Beginning in the latter half of the 19th century, the Nizamiye Courts were a secular court system introduced within the Ottoman Empire during the Tanzimat era. This court system was administered under the Ottoman Ministry of Justice. Although secular, the Mecelle was eventually applied to the courts. This court system drew much influence from French models at the time. These courts enabled the further growth of legal pluralism within Ottoman jurisprudence.

References

↑ Katz, Stanley Nider (2009). Ottoman Empire: Islamic Law in Asia Minor (Turkey) and the Ottoman Empire - Oxford Reference. Oxford University Press. ISBN 9780195134056 . Retrieved 2017-11-18.
1 2 3 4 5 6 7 "Balancing Sharia: The Ottoman Kanun". Turkish Forum English. Retrieved 26 April 2024.
↑ De Groot, A.H., 2010. 6. The Historical Development of the Capitulatory Regime in the Ottoman Middle East from the Fifteenth to the Nineteenth Century. In The Netherlands and Turkey (pp. 95-128). Gorgias Press.
1 2 3 Benton, Lauren (3 December 2001). Law and Colonial Cultures: Legal Regimes in World History, 1400–1900. Cambridge University Press. pp. 109–110. ISBN 978-0-521-00926-3 . Retrieved 11 February 2013.
↑ "kanun Ottoman law code". Encyclopedia Britannica. Retrieved 2017-11-18.
↑ Miller, Ruth A. (2003). "Apostates and Bandits: Religious and Secular Interaction in the Administration of Late Ottoman Criminal Law". Studia Islamica. 97 (97): 155–178. JSTOR 4150605.
↑ Kuran, T.; Lustig, S. (2012). "Judicial biases in Ottoman Istanbul: Islamic justice and its compatibility with modern economic life". Journal of Law and Economics. 55 (2): 631–666. doi:10.1086/665537. JSTOR 665537. S2CID 16515525.
↑ Minhaji, A., 2016. The Great Yasa and The Siyasah Shari'iyah Some Comparative Observation. UNISIA, (29), pp.36-44.
↑ Selçuk Akşin Somel. "Review of "Ottoman Nizamiye Courts. Law and Modernity"" (PDF). Sabancı Üniversitesi. p. 2.
1 2 3 Lee Epstein; Karen O'Connor; Diana Grub. "Middle East" (PDF). Legal Traditions and Systems: an International Handbook. Greenwood Press. pp. 223–224. Archived from the original (PDF) on 2013-05-25.
1 2 3 Fahmy, Khaled (1999). "The Anatomy of Justice: Forensic Medicine and Criminal Law in Nineteenth-Century Egypt" (PDF). Islamic Law and Society. 6 (2): 224. doi:10.1163/1568519991208682 . Retrieved 19 September 2016.
↑ Cleveland, William L. (2013). A History of the Modern Middle East. Westview Press. p. 255.
↑ Anderson, J. (1959). Islamic Law in the Modern World (PDF). London: Steven and Sons. p. 22.
↑ Cleveland, William L. (2013). A History of the Modern Middle East. Westview Press. p. 270.
↑ Hallaq, Wael (2009). Shari'a: Theory, Practice, Transformations. Cambridge University Press. pp. 411–413.
↑ Tucker, Judith (1996). "Revisiting Reform: Women and the Ottoman Law of Family Rights, 1917". Arab Studies Journal. 4 (2): 4–17. JSTOR 27933698.
↑ Birnhack, Michael (2011). "Hebrew Authors and English Copyright Law in Mandate Palestine". Theoretical Inquiries in Law . 12 (1): 201–240. doi:10.2202/1565-3404.1267. S2CID 154026051. SSRN 1551425. CITED: p. 205.