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Abstract
Legal reform was a key element in the passage of the Ottoman empire to modernity
during the long nineteenth century. This article discusses the modern historiography
of Ottoman judicial change while taking issue with the notions of secularization
and westernization, which are omnipresent in the conventional legal history of
the nineteenth century. An alternative conceptualization is called for, one that is
free from the dichotomous and homogenizing binarity of religious/secular, thus
allowing more nuanced representations of sociolegal change in general.
Introduction
The notion of legal reform is at the background of almost the entire
scholarship on the nineteenth century.1 Haunted by a longstanding sense
of crisis following trends of decentralization during the seventeenth and
eighteenth centuries, the Ottoman ruling elite was engaged in a centurylong project of administrative reform that was meant to augment its
authority and cope with political and economic crises inside and outside
the Ottoman domains. The very concept of reform was a dominant
element in Ottoman political imagination before the nineteenth century,
often embedded in a rhetoric that revered the old ways. Yet, in the
nineteenth century reform (slah) emerged as a key idiom, facilitating both
novel and not-so-novel perceptions of governing. Codification and the
creation of the new Nizamiye courts stand out in the historiography of
the nineteenth century as the accustomed signifiers of legal reform.2
Legal change has been represented in scholarship mainly through the
prisms of Secularization, Westernization, and top-down reform,
which were evident by the shrinking jurisdiction of the eriat courts in
favor of the new, so-called westernized or secular Nizamiye court system
and the equivalent growing impact of French positive law on the Ottoman
one. This author argues that the notion of dichotomous secular (read
modern) and religious (read traditional) judicial spaces have dominated
the historiography of Ottoman reforming law. Specifically, the notion of
discontinuity with regard to pre-modern judicial praxis and an alleged
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Journal Compilation 2008 Blackwell Publishing Ltd
competition between secular-modern and religious-traditional cosmologies has been ubiquitous the scholarship on late Ottoman law. Few recent
studies cast doubt on the validity of this representational mode and its
ability to capture the intricacies of late Ottoman sociolegal change. In the
light of these studies, I make the case for an alternative perspective to
judicial change during Ottoman passage to modernity, one that emphasizes the consciously syncretic nature of Ottoman law and its plurality, and
gives ample expression to historical continuity.
Before offering some specific conceptual insights into the state of the
art, a general portrayal of Ottoman legal reform is in order. The story of
the legal reform in general is embedded in The Tanzimat, the grand
project of legislation that was aimed at centralizing the administration and
modernizing the state, and was largely inspired by European, chiefly
French ideas and administrative practices. The Imperial Decree (known as
hatt- Hmayun of Glhane) that was read out in great pomp at the royal
Rose Garden in Istanbul in 1839 is considered in the historiography (and
in the Ottoman historical imagination) as the opening shot of the Tanzimat. Yet the Tanzimat was really rooted in the preceding periods of the
reform-minded Sultans Selim III (ruled 17891807) and Mahmut II
(ruled 180839). The historiography of the last two decades has refuted
the earlier depiction of the era of Abdlhamit II (18761909) as a period
of setback with regard to the Tanzimat reforms. The reform movement is
now perceived as a continuum that had started at the late eighteenth
century and ended with the demise of the empire, in parallel with the
long nineteenth century.3 In fact, most of the major administrative and
legal innovations that had been ushered in by the earlier generations of
reformers came to fruition during the Hamidian period. The reforms
appear in the scholarship an outcome of both external and internal
motivations. The former denotes the always-increasing pressures by the
European powers while the latter refer to a somewhat loosely related
group of Ottoman bureaucrats and thinkers, spreading over several generations and espousing a wide spectrum of ideas, who believed that the
overall weakness of the state called for a comprehensive reform.
An entanglement of interests was at play in both the foreign diplomatic and
the Ottoman socio-political scenes, often in ways that blurred the distinction
between the external and the internal. Yet according to the mainstream
historiography, both Europeans and Ottomans throughout the long
nineteenth century seemed to have shared a common impression of threat to
the very existence of the empire. Hence, the Ottoman reformers perceived
the reforms as the only way to save the empire whereas the European powers
(sometimes most of them, at times some of them) demanded reforms in
order to hold the empire together in the context of the Eastern question.
Until the second half of the nineteenth century, the eriat courts had
formed the backbone of the Ottoman judicial system. Administered by kads,
these courts addressed all cases in accordance with a combination of Islamic
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law (eriat), compilations of sultanic law (kanunnames) and customary law (rf).
The foundation of the courts of commerce (ticaret mahkemeleri) in the midnineteenth century throughout the big urban centers such as Istanbul,
Beirut, Cairo and Izmir, and the establishment of mixed criminal courts for
addressing cases involving Ottoman subjects and foreigners (1847) marked the
gradual emergence of a new court system that would erode the jurisdiction
of the eriat courts as the century unfolded. Eventually, the eriat courts were
left with competence over matters of personal status and pious endowments
(vakf). During the second half of the century the Nizamiye (regular) courts,
spreading almost all over the Ottoman domains, came to be the exclusive
judicial forum for addressing criminal, civil and commercial cases.4 The
Nizamiye court system appears in the historiography as an emblematic
expression of a wide-ranging process of Westernization which by extension
characterized the entire reform project. Indeed, the judicio-administrative
structure of the Nizamiye court system as a whole was modeled after the
French one. Rationalization in the Weberian sense is mentioned in the
scholarship as a key feature or key objective of the reformed bureaucracy.5
Although not all the codes that were promulgated during the nineteenth
century were borrowed from Western law, the lions share of the literature
describes the legislation that facilitated the legal reform as an exemplary
aspect of westernization, while the notion of Westernization is rarely
problematized in the modern historiography of the Ottoman Empire, as
will be argued shortly. It is nevertheless true that legal borrowing was
present even in the more authentic Ottoman codes that were based on
Islamic law. The very act of codification may be argued to be originated
from modern European Continental Law.6 The extensive projects of
statutory codification appear in the scholarship as evidence of the secularization
of the law, energized by the incessant process of westernization. All these
laws, except for the Civil Code (Mecelle, 18691876) and the Land Code
(1858) were adaptations of French positive law. Some scholars argue that
even though the Civil Code is a codification of Islamic (Hanefi) law, it is
nevertheless a secular code formed under the influence of European ideas.7
In the following section, I take issue with the dominant tendency in
scholarship to focus on westernization, secularization and ruptures when
dealing with Ottoman legal change. Few scholars have questioned the
value of westernization as a descriptive category with regard to the
Ottoman nineteenth century.8 Yet, given that a systematic similar critique
on the particular field of nineteenth century law is absent, a somewhat
extended exploration of the secularization/westernization narrative in the
historical writing on Ottoman modernizing law is in order.
The Paradigm of Westernization, Secularization, and Dualism
The notion of Westernization echoes throughout the scholarship on the
nineteenth century, going hand in hand with the concept of Secularization.
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final two decades of Ottoman existence. Yet, having Brubaker and Coopers
critique in mind, pointing to this Ottoman discourse in itself as a proof
of some self-evident westernization, is actually to reproduce common
reifications by subjecting categories of analysis to categories of practice.
As far as the scholarship on nineteenth-century law is concerned, the
signifier secularization is commonly equated with westernization. The
judicial reform is by and large told as a story of a mounting adoption of
Western law and an interrelated mounting secularization of the law. When
mentioned in concert, the eriat and Nizamiye courts are often labeled in
scholarship as two distinct and opposite religious and secular courts
respectively.13 Regardless of the importance attributed to secularization in
the process of legal change, the actual meaning of the category secular
in sociolegal or even strictly legal contexts (if something like this at all
exists in reality) is rarely subject to a serious discussion.14 Expecting this
type of conceptual reflexivity from historians who worked in the 1950s
and 1960s would be unfair given the fact that Ottoman social history
(indeed, Middle East history in general) was almost a terra incognita at
that point and also because unthinking the category of secularization was
almost unthinkable for those who worked within the academic and political
environments dominated by modernization theory.15 However, whereas
wisdoms generated by modernization theory have been turned upside
down during the last four decades, the status of secularity as a self-evident
analytical category has endured in historiography.16
For instance, in her oft-cited Law as a Metaphor (1992) June Starr sets
Ottoman legal reform of the nineteenth century as the point of departure
for a process that would lead, eventually, to the pervasiveness of the
secularist discourse in the Turkish republic, which she nevertheless
skillfully reconstructs through the prism of legal anthropology. The part
of her narration that refers to Ottoman legal reform is organized around
an evolutionary and linear development of secular law embodied in the
early courts of commerce during the 1840s and the later full-fledged
secular legal system that consisted of the Nizamiye courts. This linear
progression would only come to fruition with the Turkish Republic during
the mid-twentieth century. The actual meaning of secular legal system
in the context of nineteenth century Ottoman society remains completely
obscure in this description. The absence of any tackling, both empirical
and theoretical, with the notion of secularity is all the more puzzling in
the light of her main argument: By the mid-nineteenth century and early
twentieth century law became the metaphor in the competition for state
control between secular and Islamic elites.17 Starrs stated awareness of the
fact that the Ottoman eriat-made civil code (Mecelle) was in use in both
the secular (Nizamiye) and the religious (eriat) courts has no impact
on her a-historical notion of a linear secularization.
Interestingly, historians commitment to more accurate and historical
definitions of secularity does not necessarily produce an alternative to the
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empire that was lead by elites whose political imagination had been quite
different from the one that shaped the praxis typical of the nation states
that succeeded it.23
From Legal Reform and Dualism to Sociolegal Change and Judicial Syncretism
Legal historians of the Ottoman Empire have produced detailed studies
addressing the numerous laws and regulations, and the administrative
changes that made up legal and judicial reform.24 However, while we
know much about state-generated reform, our knowledge of the social
mechanisms that contributed to the multifaceted process of sociolegal
change is remarkably insufficient. The sociolegal approach is an interpretive
framework that explores the law as an aspect of social relations. As
such, it offers a starting point for formulating a new set of questions and
methodologies for understanding Ottoman legal change in the context of
modernity.
Being consciously eclectic and methodologically heterogeneous from
the start, the sociolegal approach does not, and should not lend itself to
a straightforward definition. Not unlike other influential trends in the
social sciences, it emerged in resistance to a major academic tradition. In
this case, sociolegal studies materialized as an attempt to break out from
the claustrophobic world of legal scholarship and education, as previously
encountered.25 Hence, it is not the laws or codes of any given society
that form the focus of sociolegal analysis but rather, the detailed, varied
practices and meanings that constitute legal systems and that may not be
studied in isolation from key social and cultural developments. The existing
scholarship on late Ottoman law begs for a transition from a legalistic
state-centered emphasis (legal reform) to approaches that would shed
light on various sites of sociolegal interactions that presently are little
known. The very few recent studies that do explore sociolegal change from
a provincial perspective enhance and modify the present understanding of
the Ottoman sociolegal sphere during modernity.26
For analytic and methodical purposes, it may be helpful to distinct
between sociolegal change within the judicial institution (encompassing
both the eriat and Nizamiye courts and the administrations that supported
them) and sociolegal dynamics that involved interactions between the legal
system and its users, namely, those individuals who encountered various
state agencies that represented the law, primarily the courts, but also the
municipal councils (meclis-i idare), land registration offices and so on.27
The Tanzimat, as a term and concept, was a creation of the ruling elite,
yet bottom-up approaches carried out by social historians working on
provincial settings have demonstrated that administrative reforms often
stemmed from processes of complex negotiations between the Imperial
center and provincial elites.28 The binary hierarchy of center and periphery
have sculpted the common wisdom concerning the dissemination of legal
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the eriat court in the everyday lives of Ottoman men and women of all
religious communities. For one, the Land Code of 1858 had a far-reaching
impact on the establishment of individual ownership rights, even when its
raison detre was state centralization and not a liberal ideology. The resulting
administrative practices of land registration and survey stimulated a
dynamic social space marked by negotiation, resistance and compliance
from the part of ordinary people.33 Our knowledge of the specific social
implications of the Land Code is partial, although it is nevertheless
significantly richer than our knowledge of how everyday experiences in
the courts were affected by the new legislation.34
There are very few studies that explore everyday reactions to and
experiences of nineteenth-century Ottoman sociolegal change in local
judicial settings.35 Occasionally, scholarly evaluations of the reforming
Ottoman legal system are guided by an idealistic expectation for judicial
coherence and harmony, thus interpreting situations of jurisdictional
conflicts and legal pluralism as anomalies or administrative malfunctions.36
Extensive anthropological research on legal pluralism teaches us that modern
legal systems in general are a far cry from their neat, orderly image.
Inconsistencies, jurisdictional conflicts, and forum shopping in general
form the norm rather than the exception in most sociolegal settings, in
and outside the domain of state law.37 Employing the prism of legal
pluralism in the study of nineteenth-century Ottoman law is necessary for
understanding litigants reactions to judicial change as well as for reconstructing the agencies of ordinary people. Rather than assessing the division
of labor between the Nizamiye courts and the eriat courts and the related
conflicts in terms of administrative incompetence or dualism, one can
view such conflicts as a normalcy that opened up new opportunities for
forum shopping. It is clear, for instance, that there was a good deal of
forum shopping involving the civil sections of the Nizamiye courts and
the eriat courts despite the more accurate division of labor of 1879 and
its later reinforcements.38 Having in mind the predominance of the eriat
court prior to the nineteenth century, the passage of Ottoman judicial
sphere to modernity may have also meant unprecedented legal pluralism,
from the litigants point of view.
The plurality of the daily lives of the reformed law was allowed by a
hybrid legal and judicial culture, which is camouflaged in the conventional
historiography by the notion of dualism, already criticized above. Two
important features of the Ottoman judicial sphere that have been either
ignored or marginalized in the secularization narrative are the intertwined
nature of the eriat and the Nizamiye judicial spaces, and the fact that the
eriat courts were not left outside the large wave of reform and sociolegal
change. Contrary to the prevailing assumption that had associated the
emergence of the so-called westernizing Nizamiye courts with an alleged
withering of the eriat courts, recent studies of the eriat courts demonstrate
that much energy was invested in reforming these courts through legislation
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For a recent example, see: M. . HanioGlu, A Brief History of the Late Ottoman Empire
(Princeton, NJ: Princeton University Press, 2008).
For instance: Agmon, Family and Court; J. Akiba, From Kadi to Naib: Reorganization of the
Ottoman Sharia Judiciary in the Tanzimat Period, in C. Imber and K. Kiyotaki (eds), Frontiers
of Ottoman Studies: State, Province, and the West (London: I. B. Tauris, 2005), 4360; Akiba, A
New School for Qadis: Education of Sharia Judges in the Late Ottoman Empire, Turcica, 35
(2003): 12563; H. S. FeyzioGlu and S. Kl, Tanzimat Arifesinde Kadlk-Naiplik Kurumu,
Tarih Aratrmalar Dergisi, 24/38 (2005): 3153; E. B. Ekinci, Osmanl Mahkemeleri (Istanbul: Ar
Sanat Yaynevi, 2004), 256 97.
40
For instance: H. Gerber, Ottoman Rule in Jerusalem: 18901914 (Berlin: K. Schwarz, 1985),
143; Davison, Reform in the Ottoman Empire, 256.
41
Rubin, Ottoman Modernity, 120 1.
42
R. A. Miller, Legislating Authority: Sin and Crime in the Ottoman Empire and Turkey (New York,
NY/London: Routledge, 2005), 64, 72 8.
43
S. Deringil, The Invention of Tradition as Public Image in the Late Ottoman Empire, 1808
to 1908, Comparative Studies in Society and History, 35/1 (1993): 67.
44
A. Layish, The Transformation of the Sharia from Jurists Law to Statutory Law in the
Contemporary Muslim World, Die Welt Des Islam, 44/1 (2004): 7.
45
A. Bein, Politics, Military Conscription, and Religious Education in the Late Ottoman
Empire, International Journal of Middle East Studies, 38 (2006): 283 301.
46
Dstur 2, vol. 9, 270.
47
See also clauses 39, 51, 58. Dstur 2, vol. 9, 783 794.
48
Apparently, this necessity is valid not only when looking at aspects of social praxis. An
exploration of semiotic aspects reveals that the differences [. . .] between secular and religious
legal systems may be differences in degree and presentation rather than in kind. See: B. Jackson,
A Semiotic Perspective on the Comparison of Analogical Reasoning in Secular and Religious
Legal Systems, in A. Soeteman (ed.), Pluralism and Law (Dordrecht; Boston: Kluwer Academic
Publishers, 2001), 322.
49
Bedir, Fkh to Law, 386.
50
K. H. Karpat, fta and Kaza: The lmiye State and Modernism in Turkey, 18201960, in C.
Imber and K. Kiyotaki (eds), Frontiers of Ottoman Studies, vol. 1 (London/New York, NY: I. B.
Tauris, 2005), 33 4.
51
Employing a power-relations perspective, Huri IslamoGlu aptly describes the passage to a
modern social reality as a process of the making of a new hegemony and undermining of the
old: in the process the old and the new were entangled and administrative practices which were
constitutive of modern social reality were power fields in which the old was cast in the terms
of the new, and the new was continuously formulated to accommodate the old in doing so
transforming it. H. IslamoGlu, Ottoman History as World History (Istanbul: The Isis Press, 2007),
216.
52
Miller, Legislating Authority, 2631.
53
This is evident in the official understanding of justice, see: H. Inalcik, Osmanlda Devlet,
Hukuk, Adlet (Istanbul: Eren, 2000). For a sophisticate analysis of Ottoman Justice as a contested political discourse, see: B. Ergene, On Ottoman Justice: Interpretations in Conflict
(16001800), Islamic Law and Society, 8/1 (2001): 52 87.
54
Miller, Legislating Authority, 31.
55
Ibid., 47.
56
D. Zeevi, Changes in Legal-Sexual Discourses: Sex Crimes in the Ottoman Empire,
Continuity and Change, 16/2 (2001): 21942; L. Peirce, Morality Tales: Law and Gender in the
Ottoman Court of Aintab (Berkeley/Los Angeles, CA: University of California Press, 2003), 119;
H. Gerber, State, Society, and Law in Islam (New York, NY: State University of New York Press,
1994), 604. The indivisibility of these three sources of normative law was evident also in the
common practice of amicable agreements (sulh). See: I. TamdoGan, Sulh and the 18th Century
Ottoman Courts of skdar and Adana, Theme Issue: Shifting Perspectives in the Study of
Sharia Courts: Methodologies and Paradigms, Islamic Law and Societies, 15/1 (2008): 55 83.
57
Rubin, Legal Borrowing and Ottoman Legal Culture, 289.
58
On the hybrid nature of borrowed law, see: A. Watson, The Evolution of Law (Baltimore,
MD/London: The Johns Hopkins University Press, 1985), 94. For a critique on the accepted
tendency to describe Ottoman legal borrowing as a defective imitation of European law, see:
R. Miller, The Legal History of the Ottoman Empire, History Compass, 6/1 (2008): 286 96.
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