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Law and Legality in the Ottoman Empire and Republic of Turkey

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The editors of this volume have gathered leading scholars on the Ottoman Empire and the Republic of Turkey to chronologically examine the sweep and variety of sociolegal projects being carried in the region. These efforts intersect issues of property, gender, legal literacy, the demarcation of village boundaries, the codification of Islamic law, economic liberalism, crime and punishment, and refugee rights across the empire and the Aegean region of the Turkish Republic.

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1 Reaching the Flocks: Literacy and the Mass Reception of Ottoman Law in the Sixteenth-Century Arab World

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Timothy J. Fitzgerald

C’est une étrange chose que l’écriture . . . Le seul phénomène qui l’ait fidèlement accompagnée est la formation des cités et des empires, c’est-à-dire l’intégration dans un système politique d’un nombre considérable d’individus et leur hiérarchisation en castes et en classes . . . Si mon hypothèse est exacte, il faut admettre que la fonction primaire de la communication écrite est de faciliter l’asservissement.

Claude Lévi-Strauss2

OVER THE PAST few decades, the study of Ottoman law has expanded in ways that defy brief summary. At root, many Ottoman legal historians have drawn inspiration from the concerns and questions prompted by the turn toward social history in the humanities at large. This, combined with more recent imperial and world-history turns, if dizzying, has meant relative boom times for interest in the Ottoman Empire and its legal culture(s) or system(s). One welcome result of all this attention has been the incremental counter-balancing of top-down, center-out type approaches to legal history with ones that highlight the determinative role played by ideas, institutions, and peoples beyond—sometimes far beyond—the imperial capital at Istanbul. Moreover, the interdisciplinary field of inquiry captured by the rubric “legal pluralism” has at last made serious inroads into Ottoman (and Islamic) legal studies, complicating our understanding of the legal scene in beneficial ways and rendering the Ottoman Empire more intelligible to those analyzing law and politics elsewhere and undertaking comparative study.3

 

2 Ottoman Legal Practice and Non-Judicial Actors in Seventeenth-Century Istanbul

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Hadi Hosainy

ON 31 AUGUST 1666, the Istanbul Court exonerated the imam of the Bucakbağı neighborhood of the homicide of a woman named Ayşe, daughter of Abdullah. The homicide took place a day earlier at the house of the imam, Mustafa Efendi. A grand vizieral order (buyruldu) was already issued for the investigation and registration (keşif ve tahrir) of the case. Accordingly, the court sent a group of investigators to the location of the homicide, i.e., the house of the mentioned imam. At the head of the investigating team were a high-ranking judge from the court and the chief police officers of Istanbul. They examined (mu’âyene) the dead body of Ayşe and arrived at several findings. İsmail Beşe, the elder son of the imam, had loaded a gun and put it at a window sill. In the meantime, Ayşe went to the imam’s house for some business. When the minor son of the imam tried to put a copy of the Quran on the same sill where the gun had been placed, he unintentionally touched the trigger. The gun went off and the bullet hit the right side of Ayşe’s neck and came out the other side. The investigating team concluded that this was the cause of Aşye’s death.2

 

3 Defining Village Boundaries at the Time of the Introduction of the Malikane System: The Struggle of the Ottoman State for Reaffirming Ownership of the Land

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Michael Nizri

SINCE LAND FORMED the major economic resource for centuries, providing a large share of people’s income and an important part of government’s taxes, the Ottoman state and Hanafi jurists had to deal with problems and issues relating to ownership, land management, access to agricultural surplus, and the settlement of disputes.2 As power relations shifted among various forces—the state, provincial administrators, local notables, owners of “free-hold” properties, waqf founders, peasant cultivators, and so forth—the rules of landed property were occasionally recast by legal thinkers and the central government.3 After all, as Sabrina Joseph asserts, “the law is a dynamic discourse, an integral part of the historical process, which is responsive to existing reality and actively engaged in shaping and re-shaping this reality. Thus, the law, similar to relations of power, is constantly being renegotiated.”4

Legal norms relating to landed property were formulated on the basis of Islamic law (sharia) and Ottoman imperial regulations (sing. kanun) defined in sultanic decrees and derived from local and customary usage as well as administrative exigencies. They emphasized first and foremost the role of the state or the ruler as the source of property rights (the right to make decisions regarding the land). These rights did not entail absolute claims over a certain property. Rather, they described differentiated and particularistic claims of revenue and subsistence. Not only rights to revenues, to the use of the land, and to its title were differentiated, but each claim could also be assigned to different claimants under various categories of property.5

 

4 Economic Interventionism, Islamic Law and Provincial Government in the Ottoman Empire

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M. Safa Saraçoğlu

IN THIS CHAPTER, my intention is to make some observations on the transformation of Ottoman administrative involvement in the functioning of markets from the fifteenth to the nineteenth centuries. My intent is not a comprehensive treatment of the subject, but rather, to raise questions that can help us understand shifts in how markets were conceptualized in the eighteenth and nineteenth centuries. I argue that mechanisms that regulated the conduct of fair and legitimate market place exchange changed significantly in the Ottoman Empire from the fifteenth to the nineteenth centuries, as the rulers gradually abandoned an interventionist policy (using regulatory mechanisms such as price ceilings) in favor of noninterventionist state policies. Administrative intervention in markets was not a process that was easily accepted by medieval fiqh scholars, who claimed that it interfered with the free will of individuals in determining and declaring the value of their property. The Ottomans ignored these objections, however, particularly between the sixteenth and eighteenth centuries.

 

5 Reorganization of the Sharia Courts of Egypt: How Legal Modernization Set Back Women’s Rights in the Nineteenth Century

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Kenneth M. Cuno

HISTORIANS HAVE TENDED to neglect the reorganization of the Sharia courts in the nineteenth-century Ottoman Empire and its autonomous Egyptian province, both as a process that was part of the Tanzimat-era restructuring of the legal system and in terms of its social consequences. Standard if somewhat dated accounts have emphasized the drafting of new codes of law that emulated the French codes in form and often in content, the establishment of new courts to administer those codes, and the subsequent rise of the modern legal profession.2 Recent social-historical studies addressing developments in the judicial system of nineteenth-century Egypt have mainly focused on the application of criminal law, in which the Sharia courts played a minor role.3 While valuable, those studies have not challenged the assumption in the older literature that the restriction of the jurisdiction of the Sharia courts to family matters as a consequence of the issuance of codes of criminal, commercial, civil, and property law reduced their importance. That literature equated legal “modernization” or “reform”4 with codification. But the codification of Muslim family law did not begin until the twentieth century, and so it was assumed that until then “the one area that remained essentially untouched” by modern change “was family law.”5

 

6 Regulating Land Rights in Late Nineteenth-Century Salt: The Limits of Legal Pluralism in Ottoman Property Law

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Nora Barakat

THIS ARTICLE EXAMINES the relationship between different district-level decision-making bodies in the late nineteenth-century Ottoman context. Using Sharia court records and property registers produced in the rural Syrian district of Salt as well as investigations from the district that reached Istanbul, I explore the roles and personnel of various courts and bureaucratic offices involved in allocating rights to landed property and settling disputes over land. With this examination, I aim to add nuance to characterizations of the late Ottoman legal system as pluralistic. These descriptions have emphasized Ottoman litigants’ abilities to choose between multiple state-sanctioned legal forums with overlapping duties, especially Sharia and Nizamiye courts, to obtain the most beneficial ruling.1 I argue that in the realm of property law, litigants had different goals when approaching the various courts and bureaucratic agencies governing land relations in Salt and their cases had different possible outcomes. Investigating the discrete roles of these government agencies and courts in different areas of late Ottoman law and governance is crucial for a deeper understanding of litigants’ experience of the late Ottoman legal environment.

 

7 The Mecelle, Sharia, and the Ottoman State: Fashioning and Refashioning of Islamic Law in the Nineteenth and Twentieth Centuries

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Samy Ayoub

Contemporary Islamic legal scholarship is preoccupied with the relationship between pre-modern articulations of Sharia and its modern formulations in the context of positive legislation and the nation-state. A key debate in the field is whether modern civil codes in Muslim majority countries and the codification of Sharia in the late nineteenth and early twentieth centuries are authentic representations of Islamic law or whether they are alien legal formulations authorized by the modern nation-state under heavy European influence. This article explores how the creation of the Mecelle, the first Islamic Civil Law code, in 1876 was justified by its drafters in terms of the indigenous legal genres within the Hanafi school. Thus, I address three central questions: (1) To what extent does the Mecelle embody Hanafi norms and doctrines? (2) What are the ways in which the Mecelle was justified as a legitimate Islamic legal code? (3) How does the Mecelle articulate new norms and doctrines in the name of the Hanafi tradition?

 

8 Criminal Codes, Crime, and the Transformation of Punishment in the Late Ottoman Empire

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Kent F. Schull

BY THE END of World War I, the Ottoman Empire had significantly transformed its criminal justice system to include modern centralized penal codes, policing organizations, criminal courts, modern law schools, and a centralized prison system wherein the vast majority of convicted criminals received incarceration as punishment. These transformations did not happen overnight, but often came about in fits and starts as imperial and local officials attempted to deal with the challenges and crises experienced during this period. This “modern” criminal justice system was not borrowed wholesale from Western Europe. Instead, it possessed deep roots and antecedents in Ottoman “classical” criminal justice practices and Islamic law. Themes such as prisoner rehabilitation, prison labor, the Circle of Justice, and legitimizing imperial practice through Islamic law still functioned and took precedence in the late Ottoman legal system.1 The assumptions and world view associated with Ottoman modernity governed this transformation. Ottoman officials implemented these reforms in order to centralize power over criminal justice through the rationalization and standardization of legal procedure, criminal codes, court practices and jurisdictions, policing, and criminal punishment.2 These transformations, however, should not be viewed as simple impositions of state authority detached from societal norms or mores.3 Instead, they should be seen as an imperfect outcome of negotiated, collaborative, and contentious exchanges between and among central and local state actors and societal forces, with the central state holding a distinct power advantage.

 

9 Refugees, Locals and “The” State: Property Compensation in the Province of Izmir Following the Greco-Turkish Population Exchange of 1923

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Ellinor Morack

THE MUTUAL AND compulsory population exchange between Greece and Turkey marks a crucial event in the demographic, economic and social history of both countries. Signed on 30 January 1923, the agreement between both governments sealed the fate of about 800,000 Greek-Orthodox citizens of the Ottoman state (known as Rum) who had involuntarily left Anatolia and Thrace between 1912 and 1922, banning them from ever returning to their homeland again. Those who were still in place were also forced to emigrate to Greece. The same rules were applied to the Muslim population of Greece (including those who had already left during the Balkan Wars), which was to emigrate to Turkey. Exceptions were made for the Greeks living in Istanbul (including Greek citizens who were known as Yunan in Ottoman Turkish), the Muslims of Western Thrace, and the Rum island populations of Imros and Tenedos at the mouth of the Dardanelles.2

As an internationally sanctioned forced migration, the exchange helped to legalize and make permanent the ethnic cleansing of the Ottoman Greeks that had taken place during the Balkan Wars, World War I, and the Turkish War of Independence.3 By providing Turkey with about 400,000 Muslim immigrants, it helped to replace at least some of the lost non-Muslim populations, but the exchange involved not only people. A crucial part of the agreement dealt with the appraisal and indemnification of all the property, whether rural or urban, movable or immovable, owned by the “exchangeable” populations. It was this part of the exchange that turned out to be most problematic.4 According to the exchange agreement, a Mixed Commission comprised of Greek, Turkish, and neutral members was supposed to deal with the gigantic task of registering and appraising all property of the exchanged, and provide them with documents stating its value. The receiving state would then indemnify them with property of equal value. At the end of the process, the values on both sides should have been balanced with the difference being paid in gold currency. This plan, however, was never implemented. The Greek and Turkish delegations at the Mixed Commission spent years discussing possible appraisal schemes only to eventually drop the idea altogether in the Ankara agreement of 1930, which formally ended the exchange.5 Rather than the Mixed Commission, it was national legislation and its implementation by local administrations that shaped compensation policies. While Greece depended heavily on international aid and the League of Nations, Turkey managed the task alone.

 

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