The Path to Modern Turkish Law (original) (raw)

Sultan's Law and Islamic Sharia in The Ottoman Empire Court: An Analysis of The Existence of Secular Law

Al-Istinbath: Jurnal Hukum Islam, 2023

This article aims to describe the impact of legal dualism within the Ottoman Empire. After Constantinople was taken over, Sultan Muhammad Al-Fatih instituted a significant policy, including issuing laws and regulations for the benefit of society; then, there was also a dualism system within the Ottoman Empire, which was visible during the reign of Sultan Sulaiman I. During this time, foreign nationals were mainly recruited, and foreign traders began to gain impunity at the peak of power. This then prompted several questions, such as were the sultans free to create the laws they wanted, or was Islamic law still binding on them? Was Sultan's law an innovation from the Ottoman Empire or a legacy from the preceding dynasty in the form of Capitulation? To address those issues, the authors conducted a comparative historical analysis of various types of literature. We used a descriptive qualitative approach to Qānūn's position, which served as a springboard for foreign intervention in an Empire that was strong but weak in political policies which occasionally strayed outside the corridor of Islamic Sharia which had become customary and national culture. The tolerance separated from the corridors of Islam derailed during the crisis. This became a springboard for legal dualism in a state body with integrity in various dimensions.

THE INFLUENCE OF THE OTTOMAN STATE ON ISLAMIC LAW

YILDIRIM BEYAZIT LAW JOURNAL, 2022

The last two periods in the history of Islamic law are The Period of Taqlid (Imitation) and The Period of Codification and New Ijtihad (jurisprudence). These periods correspond to the Ottoman State’s period. According to the chronological period, Ottoman law has a dual distinction: the classical period and the post-Tanzimat period. During the taqlid period, which coincided with the classical period of the Ottoman State, many Fiqh books, annotations (haşiye), commentaries (şerh) and fatwa books were published. However, in the period the line of law created by the previous period was not exceeded. The Ottoman State placed emphasis on Shaykh al-Islam, applied “official (madhab) sect” and encouraged the formation of sultanic law. The period of codification and new ijtihad coincides with the post-Tanzimat period of the Ottoman State. In this period when both domestic and western laws emerged and the official sect understanding was not carried out for all laws and modern-style laws were enacted. Distinct perspectives were discussed in the field of law, while some thinkers considered it necessary to codify western law/norms through the reception method; other lawyers have argued the codification of domestic legal rules. As a result, both views were reflected in practice, and this reflection created a dual legal system which caused some serious problems. The Ottoman state has a very significant place in the development of Islamic Law. The laws it enacted were implemented in other countries even after it collapsed, and the laws it prepared set an example for other Islamic states even today.

Secular Law in an Islamic Polity: The Ottoman Case, European Journal of Economic and Political Studies

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.

Early Ottoman Customary Law: the Genesis and the Development of Ottoman Codification

The Ottomans absorbed into their empire teritorles as well as practices of the existing states that were well established outside the Arab world, such as Seljoukides of Anatolia and Ilkhanides of Persia. Thus it was that the empire was influenced by the culture and civilization of central Asia and Persia. And, by also encompassing vast Christian territories, it became similarly open to influence from that, very different, heritage. In order to maintain political stability there was no question of erasing the past history of these countries they had conquered. And so the decision was made not only to accept the numerous customs going back to time immemorial, but also to adopt more recent legislation in force before the occupation, created by order, frequently, or Christian sovereigns. Finally, with the further expansion of the empire by annexing other Moslem states, a third component was added: the sharia, or religious law. This last aspect of Ottoman legislation took on such a level of importance that, even if a legal clause relied on customary law for its disposition, in the end it was the sharia that was the ultimate judge of its legitimacy. Thence comes the fascinating question of how the chancellery controlled the multitude of Ottoman incomes and taxes, and how it managed to bring together and succeed in working such a diverse network of laws. They had eventually to resort to a written record wherein would be listed the different elements of Ottoman law, specifically the three components of the rulings from the sultan, ancient custom and religious law.

European Journal of Economic and Political Studies Secular Law in an Islamic Polity: The Ottoman Case

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 Problem of Continuity and Change: Law, Islam and Secularism in the Ottoman Empire and the Turkish Republic

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.

Was there a Rule of Law in the Ottoman Empire?

British Journal of Middle Eastern Studies, 2017

The rule of law is a widely used term in scholarship on Ottoman legal reforms. Nevertheless, the actual meaning of this notion is rarely clarifed in the writing on the late Ottoman Empire although theorists of law have discussed the ambiguity of this term. This article aims at examining the value of the rule of law as an analytical category when discussing socio-legal change in the late Ottoman Empire. The article demonstrates that the rule of law can be a meaningful category for historical analysis when conceived through a ‘cultural perspective’ to the law.

Some Observations on Islamic Legal Studies in Turkey 1

Marmara Üniversitesi İlahiyat Fakültesi Dergisi, 2006

Özet Cumhuriyet dönemi akademik İslâm hukuku araştırmaları, Osmanlı Devleti'nin yıkılmasıyla inkıtaya uğrayan taklid, telfik ve ijtihad sürecinin bir şekilde devamıdır. Yetmişlerde ortaya çık-maya başlayan akademik araştırmalar seksenlerde gelişme gösterip doksanlarda bir yoğunluk ka-zanmıştır. Fürû fıkıh, Türk pozitif hukukuna paralel olarak kara Avrupası hukuk sistemi forma-tında üretildi. Usûl-i fıkıh tartışmaları ictihad kavramı üzerinden yürütüldü. Bütün bu yaklaşım-larda, genelde İslâmî araştırmalara özelde İslâm hukuku araştırmalarına damgasını vuran sürekli-lik ile değişim arasındaki gerilim olmuştur. Aslında herkes değişimi kaçınılmaz görmektedir. Fakat temel soru, kimliği koruyarak değişimin nasıl başarılabileceğidir. Gelenek, İslâmî kimliğin temel bir unsuru olduğundan, hiçkimse radikal bir kopuştan yana değildir. Tabiatiyle geleneğe yaklaşım tarzı ayrışmada belirleyici rol oynamaktadır. Bir yanda geleneğin sadece ruhuna sadık kalmayı yeterli bulan modernist yaklaşımlar vardır. Tabii bu, gelenekten irtibatı koparmak kadar tehlikeli algılanmıştır. Diğer yanda ise gerçek muhtevası açığa çıkarılıp bütün imkânları yeterince tüketil-meden gelenek hakkında olumsuz karar verildiği iddiası var. Teori ile pratik arasındaki karmaşa ve İslâm dünyasının içinde bulunduğu perişan durum mevcut yaklaşım ve iddia sahiplerini ko-numları hakkında tereddüte sevketmektedir. Abstract Academic Islamic legal studies of Republican period are somehow the resumption of a taqlid-talfiq-ijtihad process that ceased with the decline of Ottoman Empire. Academic studies began to come out in 1970s, improved in 1980s, and got intensed in 1990s. Legal dimension of fiqh was mostly articulated in style of legal system of continental Europe benefiting from Turkish positive law and the modern Arabic legal classics. Debates on usûl al-fiqh have been carried out mostly through the concept of ijtihad. In all these approaches, it's the tension between continuity and change that imprints on Islamic studies in general and Islamic legal studies in particular in Turkey. Indeed, everybody agrees that change is indispensable. But, the main question is how to cope with change keeping one's identity. Since the tradition is deemed a main constituent of Muslim identity, nobody accepts a radical departure from tradition. Therefore, the manner of dealing with the tradition distinguishes the community one from another. On one side, there are mod-ernist voices that find it enough to keep in contact with tradition in the level of spirit. This approach is conceived as dangerous, as to lead to cutting off the relation with the tradition. On the other side, there are voices that question whether we have really exhausted the potentiality of 1