Sultan's Law and Islamic Sharia in The Ottoman Empire Court: An Analysis of The Existence of Secular Law (original) (raw)
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The aim of this study is twofold. Firstly it puts that long before the foundation of Turkish Republic, the Ottoman sultans from the 18 th century on gradually secularized their legal systems through transplanting Western codes and institutions with the exception of civil code. Secondly and more assertively it argues that this secularization process did not evoke a serious struggle between the religious and political authorities as it did in the West thanks to the political conventions and legal characteristics the Ottoman state carried along from its very beginning on. Secularism began to pose serious problems from the first years of Turkish Republic on when the Kemalist establishment set about extending the area of legal secularism and turning it to an ideology which can be called as ultrasecularism or Kemalist laïcité with an aim to socially engineer society in a top-down fashion by legal instrumentalism.
The aim of this study is twofold. Firstly it puts that long before the foundation of Turkish Republic, the Ottoman sultans from the 18th century on gradually secularized their legal systems through transplanting Western codes and institutions with the exception of civil code. Secondly and more assertively it argues that this secularization process did not evoke a serious struggle between the religious and political authorities as it did in the West thanks to the political conventions and legal characteristics the Ottoman state carried along from its very beginning on. Secularism began to pose serious problems from the first years of Turkish Republic on when the Kemalist establishment set about extending the area of legal secularism and turning it to an ideology which can be called as ultrasecularism or Kemalist laïcité with an aim to socially engineer society in a topdown fashion by legal instrumentalism.
Evolutionary Secularisation of the Ottoman Law in the Nineteenth Century: Roots and Implications
Eskiyeni, 2021
In the world history, the nineteenth century witnessed globally major economic, politic, and social changes. More importantly, their implications constitute today’s challenges particularly for modern Muslim-majority states where the tension between state, reli-gion and society has not been settled. There is no doubt that looking at the past where the separation between sharī‘a and state started clearly to appear serves for a better understanding of today’s struggle in locating the role of sharī‘a in legal systems of modern Muslim-majority states. Many of them, i.e. the Middle Eastern and some North African states are the successors of the Ottoman Empire. The Ottomans ruled over continents for centuries thanks to their well-established governmental policy and legal system. However, they were also obliged to introduce some remarkable changes in social, politi-cal and legal spheres in the nineteenth century. The era is generally called as the pro-cess of Ottoman modernization and secularisation referring to Tanzimat Edict and fol-lowing legal reforms. This study seeks to analyse the way Ottoman law has been trans-formed in the nineteenth century, as well as its roots, challenges and implications. To this end, the paper offers an answer to the questions as to whether secularisation of Ottoman law was evolutionary or revolutionary, why it had to go through a process of secularisation, and to what extent classical Ottoman system could serve this secularisa-tion process. To address these inquiries, the study is divided into two principle sections: the first part evaluates the classical Ottoman legal system and its religious and non-religious characters, arguing that the Turkish state tradition with its influence on gov-ernment and law making were in fact the changeable features of the Ottoman law. The second part examines the process of secularisation of law from the pre-Tanzimat period to the end of the Ottoman Empire. This part reveals that secularisation of the Ottoman law was of evolutionary character, and that reforms were introduced thereafter for practical purposes, i.e. meeting contemporary needs and necessities, and not for the sake of philosophical and political considerations. However, these attempts led to a gradual secularisation of the Ottoman law, and further culminated in a revolutionary approach in the republican era.
The American Journal of Comparative Law, 2023
Samy Ayoub's Law, Empire, and the Sultan: Ottoman Imperial Authority and Late Ḥanafī Jurisprudence tackles a very salient problem in Islamic legal studies. Briefly, the problem is how to understand the relationship between state power (before modernity, embodied in the office of the "sultan") and Islamic law. To this point, the field has navigated between two ideal-typical positions. One holds that the "state" did not really exist until sometime in the nineteenth century and what authority was held by rulers (sultans, caliphs, shahs, etc.) was minimal, reducible to administrative matters of little importance to the religious scholars, who collectively held exclusive and absolute authority over the meaning of the sharīʿa. 1 The other position acknowledges the exclusive authority over the sharīʿa held by the scholars but emphasizes that the discretionary authority to make policy, issue edicts, and eventually formulate legal codes held by the sultans (especially during the Mamluk and Ottoman periods) was very broad and often much more important than the sharīʿa courts in areas like criminal law and taxation. 2 Much recent scholarship focuses on the relationship between these two spheres of authority: the way in which scholars of the early-and mid-Ottoman period attempted to bring sultanic law (kanun) into harmony with the sharīʿa, or the way in which much nineteenth-century legal modernization left the sharīʿa in place, while developing new forms of criminal and administrative law under the guise of state law (siyāsa). 3
Turkey became a multiparty democracy after the Second World War, however the Turkish experiment with democracy was defi cient from the very beginning. The shortcomings of Turkish democracy, which for example hinder Turkey’s accession process to the European Union, are a result of a longer historical process. Th e scope of investigation in this essay will be narrowed to the relationship between the state and Islam with particular emphasis on the way in which secular and religious laws functioned first in the Ottoman Empire, and later in Turkey.
Comparative Studies in Society and History 55 (3), 2013
This article proposes a comparative analytical framework to study changes in Islamic law during the post-Mongol period, particularly the rise of the official school of law (or state madhhab). Taking as my case study the Ottoman adoption of a particular branch within the Sunni Hanafi school of law, I suggest that this adoption marks a new chapter in Islamic legal history. In earlier periods, while rulers appointed judges and thus regulated the adjudication procedures, they did not intervene, at least theoretically, in the structure and doctrine of the schools of law, which remained the relatively autonomous realm of the jurists. The Ottoman adoption of the school, by contrast, was not merely an act of state patronage, since the dynasty played an important role in regulating the school's structure and doctrine. To this end, it employed a set of administrative and institutional practices, such as the development of an imperial learned hierarchy with standardized career and training tracks and the appointment of jurisconsults (muftis). Some of these practices were found in other polities across the eastern Islamic lands in the post-Mongol period, but these similarities have not been treated comparatively in modern historiography. They suggest that the Ottoman case was part of a broader legal culture that spanned several polities across the region. This article outlines a framework that will enable historians of Islamic law to treat these similarities in a more coherent manner. The framework raises key issues in the historiography of Islamic law and its nineteenth-century modernization.
The Path to Modern Turkish Law
2013
The legal system of the Ottoman Empire was founded solidly on the principles of Islamic law, with absolute power belonging to the Sultan. In classical Islamic theory, “law is a divinely-ordained system preceding and not preceded by the Muslim state, controlling and not controlled by Muslim society.” The Sultan was his instrument and representative on earth. In principle, the Şeriat covered all aspects of Muslim life, public and private. The main function of the state was to maintain and enforce the divine rules. Thus, in theory, there was no legislative power to regulate any aspect of social or political life. However, in reality, the Sultans could not find answers to their complex government and society in revelation. When the Empire grew enormously, it became impossible to govern it by enforcing only Şeriat, which had only a few rules concerning public law. As a result, “in order to rule their wide lands by filling the vacuum in the field of public law, Ottoman Sultans made local ...