The
Ottoman Empire
The Ottoman Empire, * ; is an archaic version. The definite article forms and were synonymous * and el, Оθωμανική Αυτοκρατορία, Othōmanikē Avtokratoria, label=none * info page on book at Martin Luther University) ...
was governed by different sets of laws during its existence. The ''
Qanun'',
sultanic law, co-existed with religious law (mainly the
Hanafi school
The Hanafi school ( ar, حَنَفِية, translit=Ḥanafiyah; also called Hanafite in English), Hanafism, or the Hanafi fiqh, is the oldest and one of the four traditional major Sunni schools (maddhab) of Islamic Law (Fiqh). It is named afte ...
of
Islamic jurisprudence
''Fiqh'' (; ar, فقه ) is Islamic jurisprudence. Muhammad-> Companions-> Followers-> Fiqh.
The commands and prohibitions chosen by God were revealed through the agency of the Prophet in both the Quran and the Sunnah (words, deeds, and e ...
).
Legal administration in the Ottoman Empire was part of a larger scheme of balancing central and local authority.
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
Millets () are a highly varied group of small-seeded grasses, widely grown around the world as cereal crops or grains for fodder and human food. Most species generally referred to as millets belong to the tribe Paniceae, but some millets al ...
.
The jurisdictional complexity of the Ottoman Empire was aimed to permit the integration of culturally and religiously different groups.
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
In Islam, the ''ulama'' (; ar, علماء ', singular ', "scholar", literally "the learned ones", also spelled ''ulema''; feminine: ''alimah'' ingularand ''aalimath'' lural are the guardians, transmitters, and interpreters of religious ...
'' were permitted to invalidate secular provisions that contradicted the religious laws. In practice, however, the ulema rarely contradicted the ''Kanuns'' of the Sultan.
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
The Gülhane Hatt-ı Şerif ("Supreme Edict of the Rosehouse"; french: Hatti-Chérif de Gulhané) or Tanzimât Fermânı ("Imperial Edict of Reorganization") was a proclamation by Ottoman Sultan Abdülmecid I in 1839 that launched the Tanzi ...
, 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.
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.
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
In Islam, the ''ulama'' (; ar, علماء ', singular ', "scholar", literally "the learned ones", also spelled ''ulema''; feminine: ''alimah'' ingularand ''aalimath'' lural are the guardians, transmitters, and interpreters of religious ...
, which had made legal standardisation problematic.
[
The Ottoman Kanun first began to be codified towards the end of the 15th century, after the ]fall of Constantinople
The Fall of Constantinople, also known as the Conquest of Constantinople, was the capture of the capital of the Byzantine Empire by the Ottoman Empire. The city fell on 29 May 1453 as part of the culmination of a 53-day siege which had begun o ...
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.[
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.][
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.][
One example of Kanun was the "law of ]fratricide
Fratricide (, from the Latin words ' "brother" and the assimilated root of ' "to kill, to cut down") is the act of killing one's own brother.
It can either be done directly or via the use of either a hired or an indoctrinated intermediary (a ...
", 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.[
In Turkish, ]Suleiman the Magnificent
Suleiman I ( ota, سليمان اول, Süleyman-ı Evvel; tr, I. Süleyman; 6 November 14946 September 1566), commonly known as Suleiman the Magnificent in the West and Suleiman the Lawgiver ( ota, قانونى سلطان سليمان, Ḳ ...
is known as "Kanuni", the "Lawgiver", for his contribution to the formulation of Ottoman sultanic code.[
]
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
The Gülhane Hatt-ı Şerif ("Supreme Edict of the Rosehouse"; french: Hatti-Chérif de Gulhané) or Tanzimât Fermânı ("Imperial Edict of Reorganization") was a proclamation by Ottoman Sultan Abdülmecid I in 1839 that launched the Tanzi ...
of 1839. 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 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. Specific land codes (1858), civil codes (1869–1876), and a code of civil procedure also were enacted.
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. This ideology began to overtake Sharia
Sharia (; ar, شريعة, sharīʿa ) is a body of religious law that forms a part of the Islamic tradition. It is derived from the religious precepts of Islam and is based on the sacred scriptures of Islam, particularly the Quran and the H ...
law in fields such as commercial law
Commercial law, also known as mercantile law or trade law, is the body of law that applies to the rights, relations, and conduct of persons and business engaged in commerce, merchandising, trade, and sales. It is often considered to be a branc ...
, procedural law
Procedural law, adjective law, in some jurisdictions referred to as remedial law, or rules of court, comprises the rules by which a court hears and determines what happens in civil, lawsuit, criminal or administrative proceedings. The rules are ...
, and penal law
Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law i ...
and through these paths eventually into family law
Family law (also called matrimonial law or the law of domestic relations) is an area of the law that deals with family matters and domestic relations.
Overview
Subjects that commonly fall under a nation's body of family law include:
* Marriage, ...
. Areas of life such as inheritance, marriage, divorce, and child custody were undergoing progressive transformation as European influence continued its growth.
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
The Greek War of Independence, also known as the Greek Revolution or the Greek Revolution of 1821, was a successful war of independence by Greek revolutionaries against the Ottoman Empire between 1821 and 1829. The Greeks were later assisted by ...
, nationalism
Nationalism is an idea and movement that holds that the nation should be congruent with the State (polity), state. As a movement, nationalism tends to promote the interests of a particular nation (as in a in-group and out-group, group of peo ...
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. The British especially gained more power with the Treaty of Balta Liman
The 1838 Treaty of Balta Liman, or the Anglo-Ottoman Treaty, is a formal trade agreement signed between the Sublime Porte of the Ottoman Empire and Great Britain. The trade policies imposed upon the Ottoman Empire, after the Treaty of Balta Lima ...
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.
These reforms also cultivated the version of Ottoman nationalism
Nationalism is an idea and movement that holds that the nation should be congruent with the State (polity), state. As a movement, nationalism tends to promote the interests of a particular nation (as in a in-group and out-group, group of peo ...
commonly referred to as Ottomanism
Ottomanism or ''Osmanlılık'' (, tr, Osmanlıcılık) was a concept which developed prior to the 1876–1878 First Constitutional Era of the Ottoman Empire. Its proponents believed that it could create the social cohesion needed to keep millets ...
. 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
The Mecelle was the civil code of the Ottoman Empire in the late 19th and early 20th century. It was the first attempt to codify a part of the Sharia-based law of an Islamic state.
Name
The Ottoman Turkish name of the code is ''Mecelle-ʾi A ...
, a code of Islamic law covering all areas of civil law and procedure except family law. 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. Family law was codified in 1917, with the promulgation of the Ottoman Law of Family Rights.
Copyright
As the Mecelle
The Mecelle was the civil code of the Ottoman Empire in the late 19th and early 20th century. It was the first attempt to codify a part of the Sharia-based law of an Islamic state.
Name
The Ottoman Turkish name of the code is ''Mecelle-ʾi A ...
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.[ CITED: p. 205.]
See also
* Düstur
The Ottoman Code of Public Laws, also known as the Düstur or Destur or Doustour, was a set of laws in the Ottoman Empire.Strauss, "A Constitution for a Multilingual Empire," p. 23 (PDF p. 25) The name in Ottoman Turkish comes from a Persian word f ...
* ''Corps de droit ottoman
''Corps de droit ottoman; recueil des codes, lois, règlements, ordonnances et actes les plus importants du droit intérieur, et d'études sur le droit coutumier de l'Empire ottoman'' ("Ottoman Body of Law: Compendium the Most Important Codes, Law ...
''
* ''Législation ottomane
''Législation ottomane, ou Recueil des lois, règlements, ordonnances, traités, capitulations et autres documents officiels de l'Empire ottoman'' is a collection of Ottoman law published by Gregory Aristarchis (as ''Grégoire Aristarchi'') and e ...
''
* Yassa
Yassa (alternatively: ''Yasa'', ''Yasaq'', ''Jazag'', ''Zasag'', mn, Их засаг, ''Ikh Zasag'') was the oral law code of the Mongols declared in public in Bukhara by Genghis Khan'' de facto'' law of the Mongol Empire even though the "law" ...
* Qanun
* Roman law
Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the ''Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
* Sharia
Sharia (; ar, شريعة, sharīʿa ) is a body of religious law that forms a part of the Islamic tradition. It is derived from the religious precepts of Islam and is based on the sacred scriptures of Islam, particularly the Quran and the H ...
References
Further reading
* - About the Law of the Vilayets
*
Additional copy
at Birzeit University
Birzeit University (BZU; ar, جامعة بيرزيت) is a public university in the West Bank, in the State of Palestine, registered by the Palestinian Ministry of Social Affairs as charitable organization. It is accredited by the Palestinian Mi ...
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Alternate link
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{{Ottoman Empire topics
Islamic courts and tribunals
Sharia
Justice
Law
Ottoman Empire