Ottoman Empire | D2 18/21 Law and Judiciary – The Courts and Ottoman Legal Reforms… – Iris Agmon
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Ottoman Empire | D2 18/21 Law and Judiciary – The Courts and Ottoman Legal Reforms… – Iris Agmon

December 12, 2019

In spite of the growing body
of visionist studies on Ottoman law employing
socio-legal approaches, scholarly interest in late Ottoman
Sharia courts has remained, surprisingly maybe,
very limited in scope. Furthermore, the misleading description
of the Ottoman reform judicial system as a dual,
religious-secular binary, has remained as influential as it had been prior to the
recent revisionist momentum. The Ottoman legal reforms
are associated with new laws, new judicial forums, and new
institutions of legal administration. Whereas the Sharia courts are constructed as a residue
of the?? Regime. Also when described as
“religious courts”, a description that reflects an anachronistic,
basically colonial, depiction. It is not a coincidence that the
Ottomans never used this description for the Sharia courts. At the outset I would like
to stress 2 underlying features of the Ottoman legal reforms that
contradict the common assumption that the Sharia
courts were left out of the reforms. The first one is that
the Ottoman reformers continued to treat the Sharia courts
as state judicial forums throughout the 19th century
and up until the empire’s demise. The second one is that the main goal
of the Ottoman legal reforms was creating a single,
unified state legal system. In my presentation I will therefore
advance my argument that from the early phase of the reforms,
all through the end, the Sharia courts remained an
essential element of the reforms. I will do it by examining 3 major
dimensions of the Ottoman judicial system, that underwent profound changes, showing their effects
on the Sharia courts. The 3 dimensions are:
the structure of the judicial system, legislation and codification, and I am promising you that i will
return to this issue of codification, and legal education. Due to time constraints
I will mention only a few salient examples of changes
for each one of the three dimensions. I begin with the restructuring
of the judicial system. Beginning in the 1840s,
the reformers made substantial efforts to turn the judicial system
into a multi-court system. The result of this long process
was a system that comprised
of several judicial forums, each one
specializing in certain legal spheres. Both the definitions of legal spheres,
as criminal, civil, commercial, etc. and the division of labor among them,
represented significant change. During the process of restructuring
the judicial system, the Sharia courts, the historical backbone
of the Ottoman state judicial system, became one of among several judicial
forums in the new monthly system. During the 1840s and 1850s,
the Ottoman government gradually developed a mixed
civil and criminal forums, based on Sharia courts and new
administrative judicial council. The reorganization of the provincial
administration since the mid-1860s, following the legislation
of the provincial reform law, marked an additional step
in the institutionalization of the multi-court system. Alongside the implementation
of the provincial reform law, Ottoman reformers redefined the
jurisdiction of the Sharia courts, and the provincial councils. The councils were integrated
into a new hierarchy, the Nizamiye court system,
which comprised 2 branches: one for civil cases
and the other for criminal cases. Administratively, both the civil and
criminal branches of the Nizamiye courts belonged to the ministry of justice, whereas the Sharia courts remained
with the office of the Sheikh of Islam. Yet with regard to statutes
legal procedure and personnel, the civil and criminal Nizamiye courts developed in different directions
from one another. Often, the Nizamiye civil courts
interacted with the Sharia courts more closely than
with the Nizamiye criminal courts, particularly at the lower levels
of sub district and district courts. The Nizamiye criminal courts,
in contrast, developed in different direction
in terms of substantive law, legal procedure,
and legal administration. The boring?? from continental models was more evident in these courts
than in Nizamiye civil courts. The reorganization of the judicial
system affected the Sharia courts not only in terms of the distribution
of?? and interrelations with other judicial forums, but also in terms of their
internal organization. Beginning in the mid 1850s
the Sharia judiciary system was reorganized in a new hierarchy. All judges were appointed at the capital
and placed on the imperial payroll. The entire Sharia court system
was also reorganized, turning into a centralized hierarchy and appeal instances were
gradually introduced into them. I move now to the second dimension,
the legislation codification. A major aspect of legal change was promulgation of
new courts inspired by continental law, codification of Sharia laws, and the circulation of numerous
imperial edicts and decrees. While all these new courts
were inspired by laws from various European continental
legal systems, none of them represented a pure
transplantation of a European court in its entirety into
the Ottoman legal system. The reformers invested
a great deal of effort in adjusting continental laws
to their goals, thereby creating a unique??
Ottoman and continental laws. The very act of codification, however, did represent an adoption
of modern continental legal practice, which was new, at the time,
in European legal systems as well. Codification of Sharia laws, in particular,
signified a substantial change. The function and logic
of legal codes are very different than that of Sharia law. Given the basic perception
of Sharia law as a separate law, its framework provided judges with
a wide range of legal interpretations and judicial precedents, serving
as a pool of legal alternatives for shaping concrete court decisions. This practice was embedded in a
broader notion of law as a moral habitus. Legal courts, in contrast, are meant to provide
judges with a complete set of rules that predetermine rulings for
any specific case, a ready made law. Legal courts represented
19th century trends of standardization of law and
its extensive use by rulers, bureaucrats, and the emerging middle
class of society all over the world. Thus when codifying Sharia laws, Ottoman jurists did not change
only the forum of the organization of law books, the change of forum set in motion
a substantial transformation of the content of Sharia law as well. Practically, codification of Sharia laws
required a nuanced selection of rules and major simplification
of their wording, while ruling out many legal options. Legal historians often stress
the innovativeness demonstrated by the practice of selecting certain
rules for creating Sharia courts. The eminent example of such codification
was of course the?? that was legislated
during the early 1870s. Not less important,
yet a lot less explored, was the Ottoman last codification,
the family code?? 1917. It was one of the most significant
projects of Ottoman legal modernization. However, it is misrepresented in
the conventional legal historiography on the late Ottoman period, and its
historical significance is hardly studied. In the context of the current discussion, two aspects of the code significance
need to be highlighted. The first one is that the court
signified a step forward in the process of creating a unified state
judicial system, by offering a territorial
legal framework. Namely it was a standardized
family law designed for Muslims
and non-Muslims alike. Second feature is that
the Sharia courts were intended to play an important role
in that process by assuming the administrative
responsibility for implementing the law. Finally I will briefly mention
the third dimension of change in the judicial system, that is
the judiciary and legal education. Since I am running out of time, I will just mention the two most
important changes in this regard. Firstly the reorganization of the
hierarchy of the Sharia judiciary according to
a set of uniform criteria… Among them the judges’ success in
the final exams in the new law schools established in Istanbul. And the second aspect of this dimension, is the establishment and development
of these law schools in Istanbul, that is the state college
for training Sharia judges. And the law school for Nizamiye judges. I will stop here and sum up
my presentation. In my presentation I stressed
2 features of the transformation of the Ottoman judicial system: redistribution of labor among
various judicial forums and the unification
of the judicial systems, strengthening its features
as state system. These 2 trends may seem
mutually exclusive but in fact they complement each other. This is not to say that the reforms
did not entail internal contradictions. Many contradictions,
overlaps, confusions, and compromises in the judicial system
resulted from the prolonged reforms. There were also numerous
political struggles, and ideological debates over
reform policies along the years. However, certain features of Ottoman
reforms to which contemporary observers, and later on also historians,
pointed as contradictions or failures, were neither contradictions
nor failures. They represented the path taken
consistently by the reformers despite changing political trends. The path of legal modernization that
was deeply rooted in Ottoman legal culture, while being
strongly influenced and inspired by legal modernization trends
in continental law. During the long period of reforms, all the judicial forums that formed
the modern Ottoman judicial system underwent substantial changes. The Sharia courts constituted the
only institutionalized judicial forum that continued from the
pre-modern Ottoman legal system into the modern one. The other courts were created
from scratch during the 19th century. Thus at first glance, it seems
that the reforms were only about creating
new judicial forums and removing various spheres of
jurisdiction from the Sharia court system, distributing them
among the new courts. Looking at the reforms
only from this perspective, the conclusion about the Sharia courts is that they were either marginalized
or on their way to abolishment. Moreover, if the discussion is
conceptualized in terms of religious, secular, binary, such conclusion might suggest that the
Ottoman reformers intended to weaken or eliminate the religious, so-called,
Sharia courts. A closer look at the complex process
of Ottoman legal change, however reveals that such
conclusions stands on weak factual and interpretive grounds. The Sharia courts were not depicted
by the Ottoman reformers as a liability to begin with. They dedicated a great deal
of effort to refashion and strengthen the Sharia court system, much like they did
with the other judicial forums. While removing certain legal spheres
from the jurisdiction of the Sharia courts, they expanded the responsibilities, adding new judicial
activities and positions. Moreover, while members
of the new Ottoman elite were fascinated by modern
European legal concepts, the legal culture that shaped
their visions for legal modernization was the culture that had
prevailed and been nurtured by the Sharia courts for centuries. The 19th century was indeed long
and fraught with profound changes. Several generations of reformers lived
consecutively during that period. The ideas, political context and agendas that motivated different
generations of reformers changed substantially along the way. Yet the codification
that turned out to be the last, the family code,
promulgated in October 1917 shows that the last generation
of Ottoman reformers followed in the footsteps
of their predecessors. The codification and ensuing
legal administrative activities are indicative of an intention
to further develop the unique multi-code system, and to assign the Sharia courts
new laws in it. Thank you.

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