Avi Rubin - Ottoman Judicial Change

2008 The AuthorJournal Compilation 2008 Blackwell Publishing Ltd

History Compass 6 (2008): 10.1111/j.1478-0542.2008.00563.x

Ottoman Judicial Change in the Age of Modernity: A Reappraisal

Avi Rubin*Ben-Gurion University

AbstractLegal reform was a key element in the passage of the Ottoman empire to modernityduring the long nineteenth century. This article discusses the modern historiographyof Ottoman judicial change while taking issue with the notions of secularizationand westernization, which are omnipresent in the conventional legal history ofthe nineteenth century. An alternative conceptualization is called for, one that isfree from the dichotomous and homogenizing binarity of religious/secular, thusallowing more nuanced representations of sociolegal change in general.

Introduction

The notion of legal reform is at the background of almost the entirescholarship on the nineteenth century.1 Haunted by a longstanding senseof crisis following trends of decentralization during the seventeenth andeighteenth centuries, the Ottoman ruling elite was engaged in a century-long project of administrative reform that was meant to augment itsauthority and cope with political and economic crises inside and outsidethe Ottoman domains. The very concept of reform was a dominantelement in Ottoman political imagination before the nineteenth century,often embedded in a rhetoric that revered the old ways. Yet, in thenineteenth century reform (slah) emerged as a key idiom, facilitating bothnovel and not-so-novel perceptions of governing. Codification and thecreation of the new Nizamiye courts stand out in the historiography ofthe nineteenth century as the accustomed signifiers of legal reform.2

Legal change has been represented in scholarship mainly through theprisms of Secularization, Westernization, and top-down reform,which were evident by the shrinking jurisdiction of the eriat courts infavor of the new, so-called westernized or secular Nizamiye court systemand the equivalent growing impact of French positive law on the Ottomanone. This author argues that the notion of dichotomous secular (readmodern) and religious (read traditional) judicial spaces have dominatedthe historiography of Ottoman reforming law. Specifically, the notion ofdiscontinuity with regard to pre-modern judicial praxis and an alleged

2 Ottoman Judicial Change in the Age of Modernity

2008 The Author History Compass 6 (2008): 10.1111/j.1478-0542.2008.00563.xJournal Compilation 2008 Blackwell Publishing Ltd

competition between secular-modern and religious-traditional cosmolo-gies has been ubiquitous the scholarship on late Ottoman law. Few recentstudies cast doubt on the validity of this representational mode and itsability to capture the intricacies of late Ottoman sociolegal change. In thelight of these studies, I make the case for an alternative perspective tojudicial change during Ottoman passage to modernity, one that empha-sizes the consciously syncretic nature of Ottoman law and its plurality, andgives ample expression to historical continuity.

Before offering some specific conceptual insights into the state of theart, a general portrayal of Ottoman legal reform is in order. The story ofthe legal reform in general is embedded in The Tanzimat, the grandproject of legislation that was aimed at centralizing the administration andmodernizing the state, and was largely inspired by European, chieflyFrench ideas and administrative practices. The Imperial Decree (known ashatt- Hmayun of Glhane) that was read out in great pomp at the royalRose Garden in Istanbul in 1839 is considered in the historiography (andin the Ottoman historical imagination) as the opening shot of the Tanzi-mat. Yet the Tanzimat was really rooted in the preceding periods of thereform-minded Sultans Selim III (ruled 17891807) and Mahmut II(ruled 180839). The historiography of the last two decades has refutedthe earlier depiction of the era of Abdlhamit II (18761909) as a periodof setback with regard to the Tanzimat reforms. The reform movement isnow perceived as a continuum that had started at the late eighteenthcentury and ended with the demise of the empire, in parallel with thelong nineteenth century.3 In fact, most of the major administrative andlegal innovations that had been ushered in by the earlier generations ofreformers came to fruition during the Hamidian period. The reformsappear in the scholarship an outcome of both external and internalmotivations. The former denotes the always-increasing pressures by theEuropean powers while the latter refer to a somewhat loosely relatedgroup of Ottoman bureaucrats and thinkers, spreading over several gener-ations and espousing a wide spectrum of ideas, who believed that theoverall weakness of the state called for a comprehensive reform.

An entanglement of interests was at play in both the foreign diplomatic andthe Ottoman socio-political scenes, often in ways that blurred the distinctionbetween the external and the internal. Yet according to the mainstreamhistoriography, both Europeans and Ottomans throughout the longnineteenth century seemed to have shared a common impression of threat tothe very existence of the empire. Hence, the Ottoman reformers perceivedthe reforms as the only way to save the empire whereas the European powers(sometimes most of them, at times some of them) demanded reforms inorder to hold the empire together in the context of the Eastern question.

Until the second half of the nineteenth century, the eriat courts hadformed the backbone of the Ottoman judicial system. Administered by kads,these courts addressed all cases in accordance with a combination of Islamic


Ottoman Judicial Change in the Age of Modernity 3

law (eriat), compilations of sultanic law (kanunnames) and customary law (rf).The foundation of the courts of commerce (ticaret mahkemeleri) in the mid-nineteenth century throughout the big urban centers such as Istanbul,Beirut, Cairo and Izmir, and the establishment of mixed criminal courts foraddressing cases involving Ottoman subjects and foreigners (1847) marked thegradual emergence of a new court system that would erode the jurisdictionof the eriat courts as the century unfolded. Eventually, the eriat courts wereleft with competence over matters of personal status and pious endowments(vakf). During the second half of the century the Nizamiye (regular) courts,spreading almost all over the Ottoman domains, came to be the exclusivejudicial forum for addressing criminal, civil and commercial cases.4 TheNizamiye court system appears in the historiography as an emblematicexpression of a wide-ranging process of Westernization which by extensioncharacterized the entire reform project. Indeed, the judicio-administrativestructure of the Nizamiye court system as a whole was modeled after theFrench one. Rationalization in the Weberian sense is mentioned in thescholarship as a key feature or key objective of the reformed bureaucracy.5

Although not all the codes that were promulgated during the nineteenthcentury were borrowed from Western law, the lions share of the literaturedescribes the legislation that facilitated the legal reform as an exemplaryaspect of westernization, while the notion of Westernization is rarelyproblematized in the modern historiography of the Ottoman Empire, aswill be argued shortly. It is nevertheless true that legal borrowing waspresent even in the more authentic Ottoman codes that were based onIslamic law. The very act of codification may be argued to be originatedfrom modern European Continental Law.6 The extensive projects ofstatutory codification appear in the scholarship as evidence of the secularizationof the law, energized by the incessant process of westernization. All theselaws, except for the Civil Code (Mecelle, 18691876) and the Land Code(1858) were adaptations of French positive law. Some scholars argue thateven though the Civil Code is a codification of Islamic (Hanefi) law, it isnevertheless a secular code formed under the influence of European ideas.7

In the following section, I take issue with the dominant tendency inscholarship to focus on westernization, secularization and ruptures whendealing with Ottoman legal change. Few scholars have questioned thevalue of westernization as a descriptive category with regard to theOttoman nineteenth century.8 Yet, given that a systematic similar critiqueon the particular field of nineteenth century law is absent, a somewhatextended exploration of the secularization/westernization narrative in thehistorical writing on Ottoman modernizing law is in order.

The Paradigm of Westernization, Secularization, and Dualism

The notion of Westernization echoes throughout the scholarship on thenineteenth century, going hand in hand with the concept of Secularization.



In fact, historians have tended to use the signifiers of westernization,secularization, and modernization as synonyms that either describe orexplain Ottoman realities in the long nineteenth century. These terms carrythe seal of the modernization meta-narrative, also known in the field asthe impact of the West which may be traced back to the pioneeringworks of Gibb and Bowen, Lewis, Berkes and Davison and is structuredaround three interrelated postulations that may be simplified as follows:First, the reforms of the nineteenth century resulted primarily or solelyfrom European pressures in a context of growing Ottoman submissivenessand lack of agency. Secondly, the Ottoman reformist grand design, at the endof the day, was a more or less full imitation of the Western ways. Thirdly,some coherent entity known as the West is the exclusive benchmark forevaluating the success of Ottoman policies.9

The paradigm of westernization is rooted simultaneously in Ottomanintellectual discourses and the scholarly modernization theories of the1950s and the 1960s. Founded on a dichotomous and essentializing dividebetween traditional and modern developmental phases, social scientistsshared the conviction that there was only one version of modernity, andonly one way to accomplish it. Nourished by political agendas and interestsdictated by the Cold War, modernization approaches lost their appeal bythe 1980s, when the failure of their political and intellectual implicationsbecame apparent. From a scholarly perspective, they turned out to be toosimplistic, too analytically ambiguous.10 Oversimplifying complicated socialand economic processes that are otherwise contradictory and always unstableby attributing to them some superficial linearity and homogeneity is acommon feature of narratives about Ottoman Westernization.

Ottoman intellectuals during the nineteenth century wrote intensivelyon the impact of the West, struggling with questions in the spirit of: shouldOttoman society imitate the West? Is westernization a good or bad thingfor our society? Should we adopt some aspects of Western practice whilereject others? This discourse, shared by modernists and conservatives alikeand involving a variety of opinions, was founded on a series of reificationsmost notable of which was an essentialized notion of the West, or theFranks.11 When asking how productive is the prism of westernization forexplaining social change in general and legal change in particular, theOttoman discourse on westernization might be misleading. Here, Brubakerand Coopers distinction between categories of social and political practiceand categories of social and political analysis is helpful. Adapted to thelanguage of historians, categories of practice are categories of everyday socialexperience used by the historical actors, which are distinguished fromthe categories of analysis used by researchers.12 Brubaker and Cooper warnus from uncritically adopting categories of practice as categories of analysisthereby reproducing or reinforcing reifications instead of explaining them.Westernization was clearly a category of practice in Ottoman intellectualdiscourse during the long nineteenth century and increasingly towards the



final two decades of Ottoman existence. Yet, having Brubaker and Cooperscritique in mind, pointing to this Ottoman discourse in itself as a proofof some self-evident westernization, is actually to reproduce commonreifications by subjecting categories of analysis to categories of practice.

As far as the scholarship on nineteenth-century law is concerned, thesignifier secularization is commonly equated with westernization. Thejudicial reform is by and large told as a story of a mounting adoption ofWestern law and an interrelated mounting secularization of the law. Whenmentioned in concert, the eriat and Nizamiye courts are often labeled inscholarship as two distinct and opposite religious and secular courtsrespectively.13 Regardless of the importance attributed to secularization inthe process of legal change, the actual meaning of the category secularin sociolegal or even strictly legal contexts (if something like this at allexists in reality) is rarely subject to a serious discussion.14 Expecting thistype of conceptual reflexivity from historians who worked in the 1950sand 1960s would be unfair given the fact that Ottoman social history(indeed, Middle East history in general) was almost a terra incognita atthat point and also because unthinking the category of secularization wasalmost unthinkable for those who worked within the academic and politicalenvironments dominated by modernization theory.15 However, whereaswisdoms generated by modernization theory have been turned upsidedown during the last four decades, the status of secularity as a self-evidentanalytical category has endured in historiography.16

For instance, in her oft-cited Law as a Metaphor (1992) June Starr setsOttoman legal reform of the nineteenth century as the point of departurefor a process that would lead, eventually, to the pervasiveness of thesecularist discourse in the Turkish republic, which she neverthelessskillfully reconstructs through the prism of legal anthropology. The partof her narration that refers to Ottoman legal reform is organized aroundan evolutionary and linear development of secular law embodied in theearly courts of commerce during the 1840s and the later full-fledgedsecular legal system that consisted of the Nizamiye courts. This linearprogression would only come to fruition with the Turkish Republic duringthe mid-twentieth century. The actual meaning of secular legal systemin the context of nineteenth century Ottoman society remains completelyobscure in this description. The absence of any tackling, both empiricaland theoretical, with the notion of secularity is all the more puzzling inthe light of her main argument: By the mid-nineteenth century and earlytwentieth century law became the metaphor in the competition for statecontrol between secular and Islamic elites.17 Starrs stated awareness of thefact that the Ottoman eriat-made civil code (Mecelle) was in use in boththe secular (Nizamiye) and the religious (eriat) courts has no impacton her a-historical notion of a linear secularization.

Interestingly, historians commitment to more accurate and historicaldefinitions of secularity does not necessarily produce an alternative to the



accustomed evolutionary, linear narrative of secularization in the legalsphere. For example, Okumu defines the years 18391924 as a period ofquasi-secularity which had laid the foundation for the later, full-fledgedsecularism of modern Turkey.18 Writing from a sociological perspective,he is well aware of the importance of defining analytic categories, and hetherefore states that secularity is understood in his study in terms ofseparation between state and religion. He proposes an analytic differentiationbetween secularity that is associated with the state: laiklik (deriving fromthe French liberal notion of lacit), and another type of secularity, whichis associated with society: seklerlik.19 His explanation of Ottoman sociolegalchange does not benefit from this distinction beyond trading one obscurenotion for another reified notions of state and society without actuallyhistoricizing them. However, Okumu does provide an interesting thoughnot-exhaustive exploration of meaning when pointing to secularizationof the law through the legal language. But if anything is suggested by thislinguistic transformation, it is the inaccuracy of secularization as a categoryof historical analysis. As argued by Okumu, before the Tanzimat the termhrriyet, for instance, had been defined by the opposite conditions ofcaptivity and slavery whereas in the course of the Tanzimat period itassumed the new meaning of political freedom. Okumu defines theearlier meaning as a traditional Islamic one, yet one can think of severalreasons for this change of meaning, all of which grounded in historicaldevelopments that have nothing to do with the European meaning ofsecularity, such as the abolition of slavery and the impact of new ideasof political representation. Okumus description of Ottoman codificationis presented as yet another evidence of secularization although the actualmeaning of secular law in a society that is predominantly pious to differentdegrees is not part of his discussion.

Representations of Ottoman legal change along the binarisms of religious/secular and western/eastern are embedded in the ubiquitous notion ofdualism, which signifies a century-long competition between modernistand traditionalist forces. By dualism historians have referred to anassumed divide between religious and secular spaces, evident in the realmsof education, cultural production, politics, and law.20 In the field of law,dualism has been represented by the co-existence of the westernizedNizamiye courts and the associated borrowing from European law on theone hand, and the traditional eriat courts on the other. It is ofteninvoked as a symptom of the confusing nature of the Ottoman reformedjudicial system, characterized by blurred boundaries between the secularand the religious courts.21 Imposition of vertical linearity on Ottomanlegal change is most evident in the tendency of scholars who adopt thesecularization narrative to read history backwards, rendering modernTurkish secularism the end and climax of a story that had allegedly startedin the Tanzimat state.22 This reading downgrades the fact that until its veryend, the Ottoman state remained a multi-ethnic, predominantly Islamic



empire that was lead by elites whose political imagination had been quitedifferent from the one that shaped the praxis typical of the nation statesthat succeeded it.23

From Legal Reform and Dualism to Sociolegal Change and Judicial Syncretism

Legal historians of the Ottoman Empire have produced detailed studiesaddressing the numerous laws and regulations, and the administrativechanges that made up legal and judicial reform.24 However, while weknow much about state-generated reform, our knowledge of the socialmechanisms that contributed to the multifaceted process of sociolegalchange is remarkably insufficient. The sociolegal approach is an interpretiveframework that explores the law as an aspect of social relations. Assuch, it offers a starting point for formulating a new set of questions andmethodologies for understanding Ottoman legal change in the context ofmodernity.

Being consciously eclectic and methodologically heterogeneous fromthe start, the sociolegal approach does not, and should not lend itself toa straightforward definition. Not unlike other influential trends in thesocial sciences, it emerged in resistance to a major academic tradition. Inthis case, sociolegal studies materialized as an attempt to break out fromthe claustrophobic world of legal scholarship and education, as previouslyencountered.25 Hence, it is not the laws or codes of any given societythat form the focus of sociolegal analysis but rather, the detailed, variedpractices and meanings that constitute legal systems and that may not bestudied in isolation from key social and cultural developments. The existingscholarship on late Ottoman law begs for a transition from a legalisticstate-centered emphasis (legal reform) to approaches that would shedlight on various sites of sociolegal interactions that presently are littleknown. The very few recent studies that do explore sociolegal change froma provincial perspective enhance and modify the present understanding ofthe Ottoman sociolegal sphere during modernity.26

For analytic and methodical purposes, it may be helpful to distinctbetween sociolegal change within the judicial institution (encompassingboth the eriat and Nizamiye courts and the administrations that supportedthem) and sociolegal dynamics that involved interactions between the legalsystem and its users, namely, those individuals who encountered variousstate agencies that represented the law, primarily the courts, but also themunicipal councils (meclis-i idare), land registration offices and so on.27

The Tanzimat, as a term and concept, was a creation of the ruling elite,yet bottom-up approaches carried out by social historians working onprovincial settings have demonstrated that administrative reforms oftenstemmed from processes of complex negotiations between the Imperialcenter and provincial elites.28 The binary hierarchy of center and peripheryhave sculpted the common wisdom concerning the dissemination of legal



practices. The conventional narration of legal reform is arranged alongthe line of first legislation at the center and then (often inadequate)implementation at the provinces. To be sure, the field of judicial reformis traditionally more prone to top-down approaches, all the more so whenembedded in a fetishizing treatment of the state. It is clear, however, thateven though state legislation was a major impetus for change and innovationin the judicial sphere, it was certainly not the exclusive one. Agmons pathbreaking study of the provincial eriat courts in late Ottoman Jaffa andHaifa is an in-depth reconstruction of such reality. Among other things,her study reveals that some procedural innovations had been practicedby court personnel more than a decade before they were legislated at thecenter.29 Quite plausibly, innovations born out of procedural experimen-tations at the local level were not limited to the Jaffa and Haifa courtsstudied by Agmon.

Judge-made legal change is a well known theme in sociolegal scholarship,being a universal feature of legal systems, including the supposedly morestatute-centered courts of the Continental legal tradition.30 Hence, thereis a true need for studies that would explore other local sites of sociolegalchange and explain the mechanisms involved in the diffusion of legalpractices. Referring to Western law, Hayek, for instance mentions judgessocialization as an important catalyst for legal change in general.31 In thelate Ottoman empire, the career of the typical nineteenth-century judicialofficial be it a judge, a clerk, or a public prosecutor was often a hecticjourney in geographic and bureaucratic terms. The curriculum vitae ofthe typical judicial official at the second half of the century would recordservice in multiple Ottoman regions in a variety of positions, habituallydemonstrating remarkable versatility. Even after the establishment of thenew specializing schools, such as the Mlkiye (school for civil servants) andthe Mekteb-i Hukuk (law school), which contributed to a process of training-based professionalization to be sure, actual experience and appropriatepatronage network (intisap) remained the most important assets of thetypical official. Ottoman judges and public prosecutors had been exposedto a wide range of worldviews, ideas, and local practices. Some of theselocal practices must have been inspiring, shaping new perceptions, resultingin turn with a horizontal movement of ideas concerning judicial praxis.The head clerk (baktib) of the court of commerce in the province ofVan writes in 1888 that numerous models for inscribing court decisions(ilams) result from the fact that court clerks move between courts.32 It isclear, then, that legal change has much more to it than merely the statedoes this or legislates that. It is also clear that the movement of peopleand ideas across center and periphery shaped legal change in ways that areyet to be reconstructed systematically.

How did the transformation of the Ottoman judicial sphere affect thetactics employed by ordinary people in the courts of law? This questionis all the more intriguing given the well-known century-old centrality of



the eriat court in the everyday lives of Ottoman men and women of allreligious communities. For one, the Land Code of 1858 had a far-reachingimpact on the establishment of individual ownership rights, even when itsraison detre was state centralization and not a liberal ideology. The resultingadministrative practices of land registration and survey stimulated adynamic social space marked by negotiation, resistance and compliancefrom the part of ordinary people.33 Our knowledge of the specific socialimplications of the Land Code is partial, although it is neverthelesssignificantly richer than our knowledge of how everyday experiences inthe courts were affected by the new legislation.34

There are very few studies that explore everyday reactions to andexperiences of nineteenth-century Ottoman sociolegal change in localjudicial settings.35 Occasionally, scholarly evaluations of the reformingOttoman legal system are guided by an idealistic expectation for judicialcoherence and harmony, thus interpreting situations of jurisdictionalconflicts and legal pluralism as anomalies or administrative malfunctions.36

Extensive anthropological research on legal pluralism teaches us that modernlegal systems in general are a far cry from their neat, orderly image.Inconsistencies, jurisdictional conflicts, and forum shopping in generalform the norm rather than the exception in most sociolegal settings, inand outside the domain of state law.37 Employing the prism of legalpluralism in the study of nineteenth-century Ottoman law is necessary forunderstanding litigants reactions to judicial change as well as for recon-structing the agencies of ordinary people. Rather than assessing the divisionof labor between the Nizamiye courts and the eriat courts and the relatedconflicts in terms of administrative incompetence or dualism, one canview such conflicts as a normalcy that opened up new opportunities forforum shopping. It is clear, for instance, that there was a good deal offorum shopping involving the civil sections of the Nizamiye courts andthe eriat courts despite the more accurate division of labor of 1879 andits later reinforcements.38 Having in mind the predominance of the eriatcourt prior to the nineteenth century, the passage of Ottoman judicialsphere to modernity may have also meant unprecedented legal pluralism,from the litigants point of view.

The plurality of the daily lives of the reformed law was allowed by ahybrid legal and judicial culture, which is camouflaged in the conventionalhistoriography by the notion of dualism, already criticized above. Twoimportant features of the Ottoman judicial sphere that have been eitherignored or marginalized in the secularization narrative are the intertwinednature of the eriat and the Nizamiye judicial spaces, and the fact that theeriat courts were not left outside the large wave of reform and sociolegalchange. Contrary to the prevailing assumption that had associated theemergence of the so-called westernizing Nizamiye courts with an allegedwithering of the eriat courts, recent studies of the eriat courts demonstratethat much energy was invested in reforming these courts through legislation



and administrative measures. During the second half of the century,procedural innovations and professionalization were introduced in both judicialforums and by all means were not limited to the Nizamiye courts.39

In addition, it becomes fairly clear that the Nizamiye and the eriat courtswere not distinct legal systems as previously assumed, but rather twoentangled components of a single judicial sphere converging in some aspectsand departing in others. The flux of personnel between the Nizamiye anderiat domains throughout the long nineteenth century is indicative. Amost effective example in this regard was the dual role of the naibs (erijudges from the ranks of the ilmiye, the learned class), who served at thelocal eriat courts and at the same time presided the civil sections of theNizamiye courts of first instance. Even after the rationalizing reforms of1879 the naibs remained employees of the Meihat (ministry of the eyhlislam)while their work at the Nizamiye courts was prescribed by a distinctivelyNizami procedural code. Historians have attributed the dual role policy tothe states inability to realize a complete separation of the eriat andNizamiye systems.40 But this explanation is undermined by evidencedemonstrating the continuance of this policy even when there was alreadya sufficient number of officials who had passed qualifying exams and thusconsidered professional Nizamiye personnel.41 This flux of judicial man-power was not limited to the civil sections of the Nizamiye courts but wasalso characteristic of the criminal sections at all levels, which were selfconsciously composed of functionaries from both the religious system andthe civil bureaucracy.42

The syncretic makeup of modern Ottoman law was not only a matter ofeveryday judicial practice but also a cognizant scheme officially acknowl-edged and conveyed at the symbolic level. For instance, the Ottoman coatof arms which was commissioned by Mahmut II displayed two heavytomes carried by the Sultans crown. In Abdlhamid IIs reign the tomeswere interpreted as symbols of eriat and Nizamiye law respectively,both topped by a set of scales representing a coherent conceptualizationof justice.43

A straightforward demonstration of this hybridity in the field of positivelaw was the combination of a eriat-made civil code and the French-inspiredprocedural code. The Ottoman civil code, the Mecelle, was an innovativeformulation of Hanefi Islamic law, designed to be applied in both the civilNizamiye courts and the eriat courts. The blend of codified eri andEuropean positive laws was further emphasized with the introduction ofthe Nizamiye procedural code (1879). This important legal source was anOttoman adaptation of the Napoleonic Code of Civil Procedure, replacingthe procedural sections in the Mecelle. As argued by Layish, codificationof the eriat through the act of legislation implies the transformation ofthe eriat from jurists law to statutory law, thus resulting in a sharpdeviation from the older patterns of the religious-legal literature.44 Layishrightly stresses the change brought about with codification, but it is no



less imperative to keep in mind that although the option of a wholesaleadoption of foreign civil law was considered and debated among Ottomanstatesmen, the eventual decision of the Ottoman reformers to codify theeriat meant the continuance of a syncretic legal vision.

The Young Turks Revolution which put an end to the de facto rule ofthe sultans did not seem to have a dramatic impact on the hybrid make-up of the judicial sphere. It is true that the centuries-old prominence ofthe ulema in Imperial politics and the state machinery in general wasoverall weakening.45 After the revolution, the naibs gradually lost theirexclusive role as presidents of the civil sections of the Nizamiye courts,and in 1917 the eriat courts, previously subordinated to the office of theeyhlislam, were transferred to the authority of the Ministry of Justice.46

Yet, at the same time, the division of labor between the Nizamiye anderiat courts, fluid as it was, was maintained. The Procedural Law of theeriat Courts demonstrates that as late as 1917, proceduralization, and notsecularization was the principle that guided the legislature. Several clausesin the eri procedural law allude to the Nizamiye Code of Civil Procedurefrom 1879. For instance, clause 14 stipulates that investigations concerningissues of jurisdiction will be conducted in accordance with the NizamiyeCode of Civil procedure.47 In fact, this law formalized the integrativenature of the Ottoman judicial system. Nowhere in this law there is aformulation that implies a competition between two judicial systems, andnowhere there is a hint of or an attack over the competence of the eriatcourts vis--vis the Nizamiye courts.

Having this enduring syncretism of Ottoman reformed law in mind,can we still depict Ottoman sociolegal change in terms of a progressingsecularization? The term secular was nonexistent in Ottoman professionallegal jargon to begin with, and this was also true to the word religious.What historians referred to as religious and secular courts appearedin the Ottoman bureaucratic language as eri and Nizamiye (or adliye)courts respectively. The distinction between secular and religious legalspheres is a late invention. This critique is neither a call for removing thenotion of secularity from historians vocabulary when explaining Ottomansociolegal change nor it suggests any easy solution provided by betterdefinitions. If anything, it is a call for historicizing the concept of secularitythereby acknowledging that it possessed different meanings in differentlegal contexts, both as a category of practice and a category of analysis.By the same token, in order to be meaningful as a category of socialanalysis, the notion of secular should not be assumed instinctively thereverse of religious, as it is often the case.48 As far as the secularizationnarrative is concerned, the secular/religious dichotomy was not even amajor category of social practice in the late Ottoman legal discourse. Bedirfinds the Ulemas indifference to the foundation of the Nizamiye LawSchool (Mekteb-i Hukuk) startling, arguing that one would expect thatsuch a dramatic move in the history of fkh would have attracted the



attention of the ulema.49 But there is no grounds for such an expectation atthe outset, unless one reads history via the contemporary conceptualizationof the secular. Forces of reform and reaction were set in particular politicalconstellations, rather than in a linear, homogeneous process. AbdlhamidII, for instance, enjoyed the support of prominent ulema such as theeyhlislam Ahmet Esat Efendi (181389) and his successor CemaleddinEfendi (18481919), as well as the reformer and alim Cevdet Paa.50 TheYoung Turks revolution brought with it new alliances in Imperial politics,which had a bearing on older power bases.

The issue of historical contingency leads us to the question of historicalruptures. The question of modernitys rupture with the past is a majortheoretical challenge in the social sciences. For historians working on thelong nineteenth century, focusing on the obvious aspects of rupture runsthe risk of overlooking particular sites of continuity which could otherwiseprovide for more nuanced interpretations of Ottoman sociolegal change.On the other hand, the risk of producing essentialist, linear and evolutionarydescriptions free of the contingencies and discontinuities that characterizehuman histories, is just as apparent. The historiography reviewed here ismostly about new laws, new bureaucratic bodies and new courts. In otherwords, it is preoccupied with ruptures. The actual realities engendered byOttoman reforms and modern intellectual discourses justify the spotlightingof innovations, but at the same time it renders the exploration of possiblecontinuities more interesting and important.51

The westernization-secularization-dualism narrative usually positionsthe Nizamiye courts and the associated legislation in the province of themodern whereas the eriat courts and the ulema are considered traditional.As demonstrated above, the actual experiences in the courts and thegeneral make-up of the positive law do not really fit with this representa-tional construction. This is true not only with regard to the syncretic, legallypluralistic nature of the reformed judicial sphere, but also with regard tothe endurance of past conceptualizations of justice alongside new ones.

Reconstruction of continuities in the age of modernity is especiallysignificant when studying judicial praxis because historical continuity is akey characteristic of legal systems worldwide, evident in positive law evenin periods of major legal borrowings and codifications. Such continuitiesare sometimes camouflaged by modern forms and rhetoric and thusescape the historians gaze. For instance, when analyzing the CriminalCode of 1840, Miller argues that in the modern Ottoman legal systemJustice (in the criminal context) was not about the protection fromcriminals or the rights of citizens, but rather about the protection of thepurity of bureaucratic function, deeply rooted in the modern redefinitionof state institutions.52 Whereas accentuation of bureaucratic purity mayhave been a novel theme in European legal systems, it was certainly notan innovation in the Ottoman context. In Ottoman political theory andlegal discourse long before the nineteenth century, the concept of Adalet



(Justice) was understood, first and foremost, in terms of the relationsbetween the ruler and his subjects (reaya, or flock) and the formersobligations to the latter. Taming state officials and dealing with abuses ofauthority was a major preoccupation in the well-known adaletnmes(justice decrees) that were issued by the hundreds throughout Ottomanhistory, together with other practices and institutions dedicated for thisobjective.53 Hence, while it is true that modern Ottoman discourse onbureaucratic accountability assumed a modernist flavor in the nineteenthcentury, now emphasizing rationality, bureaucratic generalization, profes-sionalization, and state centralization, the essential equalization of Justicewith bureaucratic purity was not a new concept, even when integratedinto the modernist conception of bureaucracy. Miller further underrateshistorical continuity when arguing that the religious establishment wasincorporated into the new legal system beginning with the 1840 CriminalCode.54 By the same token, Islamic legal philosophy, according to Miller,was incorporated into the Nizamiye system through the Criminal Codeof 1851, signifying a deviation from the concept of a clear separationbetween eriat ideology and temporal law (kanun, Sultamic law) ideologythat had characterized criminal law in the pre-Tanzimat era.55 Contraryto this argument, the previously accepted presentation of premodernOttoman law as a dual system divided to eriat and Kanun has beencontested. The boundaries between these two sources of Ottoman lawhad always been elusive, and starting from the sixteenth century, they wereamalgamated into a single legal system, which also included customarylaw (rf).56 Hence, the fluidity that characterized the doctrinal boundariesbetween the eriat and the law of the Sultan prior to the nineteenthcentury was still evident in the new context of a statutory law.

In the same way, the similarities between the judicial discourse evidentin the sicils (eriat court records) and the Nizamiye official discourse aretelling when trying to explain why the Ottoman reformers chose toborrow from the Continental legal tradition rather than the CommonLaw. The depersonalized, mechanistic Nizamiye discursive style, whichrevealed little about the process of judicial interpretation and conflicts inthe courtroom (unlike the Common Law discursive style) was not unfamiliarto the Ottoman lawyers who had been accustomed to the economicalstyle of the sicil. The absence of the principle of judicial precedence inthe pre-modern Ottoman legal system was also a similarity shared withthe Nizamiye-Continental adjudication.57

The point in calling for further reconstruction of continuities in Ottomannineteenth-century law, then, is not to contend oneself with proving theobvious, namely, that even in periods of great transformation historicalcontinuity must be at play. Rather, the task ahead is to reconstruct specificmechanisms and sites in which past judicial practices and ideas persistedin new and old forms. This undertaking is important for the sake ofproducing nuanced interpretations of Ottoman sociolegal modernity,



but also for challenging the meta-narratives of simple westernization andsecularization.

Conclusion

By problematizing concept of Westernization as a category of social analysisI do not mean to underestimate the impact of European ideas and practiceson Ottoman sociolegal realities of the nineteenth century. The Ottomansdid adopt from Europeans new key concepts such as separation of powersand independence of the courts, and the Nizamiye court system wassignificantly inspired by the Continental legal tradition. What I argue,instead, is that the multifaceted dialogue between Ottomans and Europeans,along with a continuous process of cultural translation, produced intricaciesthat resist simplifying labels. Legal borrowing cannot be but selective, andthe processes of rendition involved with legal borrowing are not merely amatter of translating legal terms.58 Consequently, all legal regimes presentat least some elements borrowed from elsewhere, and all of them areconsequently hybrid to various degrees.

A sociolegal mode of investigation that would hopefully add to whatwe already know about Ottoman legal systems and institutions mustinclude hermeneutic reconstruction of individual human voices. It is truethat the sources, most of which produced by the bureaucratic elite, do notlend themselves easily to reconstructing the everyday behaviors, choices,and reactions of ordinary people who went to courts as well as those ofthe judicial rank and file. However, these sources are far from mute whenread through microhistorical lenses.59 Toledanos recent social history ofOttoman enslavers and enslaved demonstrates that even the most transparentmembers of society can be given voice through a sophisticated reading ofstandard archival material. Recovering individual experiences requiresbending-within reason-some of the conventions of historical narrative,while admitting that imagination has a crucial role in historians narratives,and then coming to grips with the question of how exactly imaginationshould be employed.60

Short Biography

Avi Rubin is a lecturer at the Department of Middle East Studies, BenGurion University of the Negev.

Notes

* Correspondence address: Department of Middle East Studies, Ben-Gurion University of theNegev, Beer Sheva 84105, Israel. Email: [email protected].

1 For a recent example, see: M. . HanioGlu, A Brief History of the Late Ottoman Empire(Princeton, NJ: Princeton University Press, 2008).



2 This overview does not cover the scholarship on nineteenth-century Egypt. Officially, Egyptwas part of the Ottoman Empire yet practically it was autonomous until the British occupation(1882). Legal change in Egypt already before the British occupation assumed a distinct course,with a separate project of legal reform, but diffusion of ideas on legal reforms between Cairoand Istanbul and mutual influence can be safely assumed. In any case, this question awaitssystematic research.3 E. R. Toledano, Social and Economic Change in the Long Nineteenth Century, in M.W. Daly (ed.), The Cambridge History of Egypt, vol. 2 (Cambridge: Cambridge University Press,1998), 25284.4 Nizam was a key word in the reform period. The definitive Redhouse Ottoman-Englishlexicon (1890) translates it as order, regularity, law, system, and method. Similarly, an Ottomandictionary from 1899 describes nizami as well-organized (tertipli), set in order (mretebb), regularand orderly (muntazam). See: S. emseddin, Kamus-i Turki (Dersaadet: Ikdam Matbaas, 1899[1317]). In the modernist imagination of the reformers, order and regularity formed thehallmark of the new court system. See: A. Rubin, Ottoman Modernity: The Nizamiye Courtsin the Late Nineteenth Century, unpublished Ph.D. thesis (Harvard University, 2006).5 C. V. Findley, Ottoman Civil Officialdom (Princeton, NJ: Princeton University Press, 1989), 9;K. H. Karpat, Studies on Ottoman Social and Political History: Selected Articles and Essays (Leiden/Boston, MA: Brill, 2002), 85.6 On Ottoman legal borrowing, see: A. Rubin, Legal Borrowing and its Impact on OttomanLegal Culture in the Late Nineteenth Century, Continuity and Change, 22/2 (2007): 279303.And codification there was: The Code of Commerce from 1850; The Land Code of 1858 (132articles); The Criminal Code of 1858 (264 articles); The Civil Code (Mecelle) of 186976 (1,851articles); The Law of Commercial Procedure from 1861; The Code of Maritime Commercefrom 1863; The Code of Criminal Procedure from 1879; The Code of Civil Procedure from1879; The Code of eri Judges and Officials from 1913; The Ottoman Family Law from 1917.This is merely an incomplete list of the laws and codes that were legislated during the longnineteenth century.7 J. Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, 1964), 92.8 For an insightful critique on the notion of Westernization, see: H. IslamoGlu and P. C. Perdue,Introduction, Journal of Early Modern History, 5/4 (2001): 111. For an additional effectivecritical review of the literature on the Tanzimat, see: B. zdemir, Ottoman Reforms and SocialLife: Reflections from Salonica 18301850 (Istanbul: The Isis Press, 2003), 2151. Also: B. Grsoy,Review on Fatma Mge Geks Rise of the Bourgeoisie, Demise of Empire-Ottoman Westernizationand Social Change, Journal of Historical Studies, 4 (2006): 417. For a critical approach towardwesternization in the field of architecture, see: S. Hamadeh, Ottoman Expressions of EarlyModernity and the Inevitable Question of Westernization, Journal of the Society of ArchitecturalHistorians, 63/1 (2004): 3251.9 H. A. R. Gibb and H. Bowen, Islamic Society and the West, A Study of the Impact of WesternCivilization on Moslem Culture in the Near East, 2 vols. (London/New York, NY: OxfordUniversity Press, 195057); B. Lewis, The Emergence of Modern Turkey (London/New York, NY:Oxford University Press, 1965); N. Berkes, The Development of Secularism in Turkey (Montreal:McGill University Press, 1964); R. H. Davison, Reform in the Ottoman Empire, 18561876 (Prin-ceton, NJ: Princeton University Press, 1963).10 For a history of the Modernization Theory, see: N. Gilman, Mandarines of the Future:Modernization Theory in Cold War America (Baltimore, MD: Johns Hopkins University Press, 2003).11 For the late Ottoman intellectual discourse on westernization, see: M. . HanioGlu, The YoungTurks in Opposition (New York, NY: Oxford University Press, 1995), 728. Westernizationoccupied the minds of Ottoman novelists as well, see: . Mardin, Religion, Society, and Modernityin Turkey (Syracuse, NY: Syracuse University Press, 2006), 13563. It seems that these reificationsare time-proof. For a critique on contemporary conceptualizations of Islam and the West,see: L. Stenberg, Islam, Knowledge, and the West: The Making of a Global Islam, in B.Schaebler and L. Stenberg (eds), Globalization and the Muslim World: Culture, Religion, andModernity (Syracuse, NY: Syracuse University Press, 2004), 93110.12 Brubaker and Cooper use this distinction in the context of their critical discussion on themeanings of identity, but its relevance to all other categories used by social analysts is obvious.They argue that the concept of identity has come to encompass so many meanings in the



scholarly literature, some of which are entirely contradictory, to the point that it lost its analyticworth, turning out to be completely vague. They offer the distinction between categories ofpractice and categories of analysis as a starting point for their critique. R. Brubaker and F.Cooper, Beyond Identity, Theory and Society, 29/1 (2000): 147.13 For instance, J. N. D. Anderson and N. J. Coulson, Islamic Law in Contemporary CulturalChange, Saeculum, 18 (1967): 37; I. Yilmaz, Muslim Laws, Politics and Society in Modern NationStates: Dynamic Legal Pluralisms in England, Turkey, and Pakistan (Aldershot/Hants: Ashgate,2005), 92; C. V. Findley, The Turks in World History (Oxford: Oxford University Press, 2005),1601.14 Niyazi Berkes influential work on secularism is an exception. Though written within theheavily criticized binary of modernity/tradition, he does bother to address the meaning ofsecularity, albeit rather briefly. see: Berkes, Development of Secularism in Turkey, 58. Talal Asadsthought provoking discussion on legal reforms in colonial Egypt is another exception. In aremarkably sophisticated discussion, Asad demonstrates that there is nothing self-evident in thenotion of secularity, a concept whose meaning is structured by very specific contexts of powerrelations: T. Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford, CA: StanfordUniversity Press, 2003), 20556.15 Salient examples are: Berkes, Development of Secularism in Turkey; Davison, Reform in theOttoman Empire.16 For a stimulating critique on the misleading religious/secular binarism in the field ofOttoman educational change during the Hamidian period and an alternative approach, see: B.C. Fortna, Imperial Classroom: Islam, the State, and Education in the Late Ottoman Empire (Oxford/New York, NY: Oxford University Press, 2002).17 J. Starr, Law as a Metaphor: From Islamic Courts to the Palace of Justice (Albany: State Universityof New York Press, 1992), xxxix. 18 E. Okumu, A. Cihat, and M. Avc, Osmanl Devletinde E'itim, Hukuk ve Modernleme(Istanbul: Ark kitaplar, 2006), 25698.19 Ibid., 261.20 For instance, see: Binnaz Toprak, Islam and Political Development in Turkey (Leiden: E. J. Brill,1981), 49; Berkes, Development of Secularism in Turkey; Ilber Ortayl, mparatorlu'un En UzunYzyl (Istanbul: Alkm Yay., 2005); Jacob Landau, Ataturk and the Modernization of Turkey(Leiden: E. J. Brill, 1984), 248; HanioGlu, Brief History of the Late Ottoman Empire.21 In Eisenmans words: a confusing welter of competences. See: R. H. Eisenman, Islamic Lawin Palestine and Israel: A History of the Survival of the Tanzimat and Sharia in the British Mandateand Jewish Israel (Leiden: E. J. Brill, 1978), 17.22 For instance: D. Glidewell Nadolski, Ottoman and Secular Civil Law, International Journal ofMiddle East Studies, 8/4 (1977): 51743; M. Bedir, Fkh to Law: Secularization throughCurriculum, Islamic Law and Society, 11/3 (2004): 378401; A. zman, The Portrait of theOttoman Attorney and Bar Associations: State, Secularization, and Institutionalization ofProfessional Interests, Der Islam, 77/2 (2000): 31937.23 In Coopers words: Thinking like an empire was not the same as thinking like a nation-state,see: F. Cooper, Colonialism in Question: Theory, Knowledge, History (Berkeley/Los Angeles, CA/London: University of California Press, 2005), 200.24 Especially Turkish scholarship have produced an impressive scope of research on what isknown as the legislation movement of the Tanzimat. For a review of this literature, see: M.entop, Tanzimat Dnemi Kanunlatrma Faaliyetleri Literatr, Trkiye Aratrmalar LiteratrDergisi, 3/5 (2005): 64772. For a detailed, useful study of the administrative reform in thejudicial field, see: E. B. Ekinci, Osmanl Mahkemeleri (Istanbul: Ar Sanat Yaynevi, 2004),25 R. Cotterrell, Subverting Orthodoxy, Making Law Central: A View of Sociolegal Studies,Journal of Law and Society, 29/4 (2002): 633. For general introductions of sociolegal studies, see:R. Cotterrell, Why Must Legal Ideas Be Interpreted Sociologically, Journal of Law and Society,25/2 (1998): 17192; P. Nureau and A. Arnaud, The Sociology of Law in France: Trends andParadigms, Journal of Law and Society, 25/2 (1998): 25783.26 In a recent analysis and critique of the historical and anthropological scholarship on theSharia courts, Agmon and Shahar explain why these courts and their sociolegal contexts havereceived little attention until the 1990s and point to the reasons for the emerging interest in



these courts. see: I. Agmon and I. Shahar, Introduction, Theme Issue: Shifting Perspectivesin the Study of Sharia Courts: Methodologies and Paradigms, Islamic Law and Society, 15(2008): 119.27 I borrow the term users from de Certeau to denote the interactions of ordinary people withinstitutions. See: M. de Certeau, The Practice of Everyday Life (Berkeley, CA: University ofCalifornia Press, 1988).28 For instance: B. Doumani, Rediscovering Palestine: Merchants and Peasant in Jabal Nablus, 17001900 (Berkeley, CA: University of California Press, 1995); M. Mundy and R. Saumarez Smith,Governing Property, Making the Modern State: Law, Administration and Production in Ottoman Syria(London/New York, NY: I. B. Tauris, 2007); I. Blumi, Rethinking the Late Ottoman Empire: AComparative Social and Political History of Albania and Yemen 18781918 (Istanbul: Isis, 2003); M.S. SaracoGlu, Letter from Vidin: A Study of Ottoman Governmentality and Politics of LocalAdministration, 18641877, unpublished Ph.D. thesis (Ohio State University, 2007).29 I. Agmon, Recording Procedures and Legal Culture in the Late Ottoman Sharia Court ofJaffa, 18651890, Islamic Law and Society, 11/3 (2004): 33377; Agmon, Family and Court: LegalCulture and Modernity in Late Ottoman Palestine (New York, NY: Syracuse University Press,2006).30 F. A. Hayek, Law, Legislation and Liberty, vol. 1 (London: Routledge and Kegan Paul, 1973);M. Eckardt, Evolutionary Approaches to Legal Change, Thnen Series of Applied EconomicTheory, working paper No. 47 (2004): 9.31 Hayek, Law, Legislation and Liberty, 657.32 M. ukri, Mahkeme-i Ibtidaiye-i Ilamatn Suret-i Tanzimi Hakknda Mtalat, Ceride-iMehakim, 441 (1888): 4879.33 H. IslamoGlu, Property as a Contested Domain: A Reevaluation of the Ottoman Land Codeof 1858, in R. Owen (ed.), New Perspectives on Property and Land in the Middle East (Cambridge,MA: Harvard University Press, 2000), 361.34 For studies that shed light on social outcomes of the Land Code in provincial settings, see:A. Jwaideh, Aspect of Land Tenure and Social Change in Lower Iraq During the Late OttomanTimes, in T. Khalidi (ed.), Land Tenure and Social Transformation in the Middle East (Beirut:American University of Beirut, 1984), 33356; A. Rafeq, Land Tenure Problems and theirSocial Impact in Syria Around the Middle of the Nineteenth Century, op. cit., 37196;Doumani, Rediscovering Palestine; G. Shafir, Land, Labor, and the Origins of the Israeli-PalestinianConflict, 18821914 (Cambridge: Cambridge University Press, 1989); E. Rogan, Frontiers of theState in the Late Ottoman Empire: Transjordan, 18501921 (Cambridge: Cambridge UniversityPress, 1999); Mundy and Smith, Governing Property, Making the Modern State. For a reevaluationof this literature, see: A. Aytekin, Hukuk, Tarih ve Tarihyazm: 1858 Osmanl AraziKanunnamesine Ynelik nelik Yaklamlar, Trkiye Aratrmalar Literatr Dergisi, 3/5 (2005):72344.35 For such recent studies, see: M. V. Petrov, Everyday Forms of Compliance: SubalternCommentaries on Ottoman Reform, 18641868, Comparative Study of Society and History(2004): 73059; Agmon, Family and Court; SaracoGlu, Letters from Vidin.36 For instace: T. Taner, Tanzimat Devrinde Ceza Hukuku, in Tanzimat I (Istanbul: MaarifMatbaas, 1940), 231; Ekinci, Osmanl Mahkemeleri, 199201.37 The analytic framework of legal pluralism has made little impact in the field of Islamic law.For a discussion of the benefit of applying this approach, see: I. Shahar, Legal Pluralism andthe Study of Sharia Courts, Theme Issue: Shifting Perspectives in the Study of Sharia Courts:Methodologies and Paradigms, Islamic Law and Society, 15/1 (2008): 11241. For additionalstudies that are exceptions in this regard, see: Yilmaz, Muslim Laws, Politics and Society in ModernNation States; B. Dupret, What is Plural in the Law? A Praxiological Answer, in B. Dupretand F. Burget (eds), Le shayke et le procourer: systmes coutumiers et praqtiques jurisdiques an Ymenat gypte (Paris: CEDEJ, 2005), 15983; B. Dupret, M. Berger, and L. al-Zwaini (eds), LegalPluralism in the Arab World (The Hague/Boston, MA: Kluwer Law International, 1999).38 The term forum shopping describes litigants attempts to select the judicial forum thatwould presumably yield the most favorable resolution or judgment. For analysis of legalpluralism in the late Ottoman judicial field, see: Agmon, Family and Court; Rubin, OttomanModernity.



39 For instance: Agmon, Family and Court; J. Akiba, From Kadi to Naib: Reorganization of theOttoman Sharia Judiciary in the Tanzimat Period, in C. Imber and K. Kiyotaki (eds), Frontiersof Ottoman Studies: State, Province, and the West (London: I. B. Tauris, 2005), 4360; Akiba, ANew School for Qadis: Education of Sharia Judges in the Late Ottoman Empire, Turcica, 35(2003): 12563; H. S. FeyzioGlu and S. Kl, Tanzimat Arifesinde Kadlk-Naiplik Kurumu,Tarih Aratrmalar Dergisi, 24/38 (2005): 3153; E. B. Ekinci, Osmanl Mahkemeleri (Istanbul: ArSanat Yaynevi, 2004), 25697.40 For instance: H. Gerber, Ottoman Rule in Jerusalem: 18901914 (Berlin: K. Schwarz, 1985),143; Davison, Reform in the Ottoman Empire, 256.41 Rubin, Ottoman Modernity, 1201.42 R. A. Miller, Legislating Authority: Sin and Crime in the Ottoman Empire and Turkey (New York,NY/London: Routledge, 2005), 64, 728.43 S. Deringil, The Invention of Tradition as Public Image in the Late Ottoman Empire, 1808to 1908, Comparative Studies in Society and History, 35/1 (1993): 67.44 A. Layish, The Transformation of the Sharia from Jurists Law to Statutory Law in theContemporary Muslim World, Die Welt Des Islam, 44/1 (2004): 7.45 A. Bein, Politics, Military Conscription, and Religious Education in the Late OttomanEmpire, International Journal of Middle East Studies, 38 (2006): 283301.46 Dstur 2, vol. 9, 270.47 See also clauses 39, 51, 58. Dstur 2, vol. 9, 783794.48 Apparently, this necessity is valid not only when looking at aspects of social praxis. Anexploration of semiotic aspects reveals that the differences [. . .] between secular and religiouslegal systems may be differences in degree and presentation rather than in kind. See: B. Jackson,A Semiotic Perspective on the Comparison of Analogical Reasoning in Secular and ReligiousLegal Systems, in A. Soeteman (ed.), Pluralism and Law (Dordrecht; Boston: Kluwer AcademicPublishers, 2001), 322.49 Bedir, Fkh to Law, 386.50 K. H. Karpat, fta and Kaza: The lmiye State and Modernism in Turkey, 18201960, in C.Imber and K. Kiyotaki (eds), Frontiers of Ottoman Studies, vol. 1 (London/New York, NY: I. B.Tauris, 2005), 334.51 Employing a power-relations perspective, Huri IslamoGlu aptly describes the passage to amodern social reality as a process of the making of a new hegemony and undermining of theold: in the process the old and the new were entangled and administrative practices which wereconstitutive of modern social reality were power fields in which the old was cast in the termsof the new, and the new was continuously formulated to accommodate the old in doing sotransforming it. H. IslamoGlu, Ottoman History as World History (Istanbul: The Isis Press, 2007),216.52 Miller, Legislating Authority, 2631.53 This is evident in the official understanding of justice, see: H. Inalcik, Osmanlda Devlet,Hukuk, Adlet (Istanbul: Eren, 2000). For a sophisticate analysis of Ottoman Justice as a con-tested political discourse, see: B. Ergene, On Ottoman Justice: Interpretations in Conflict(16001800), Islamic Law and Society, 8/1 (2001): 5287.54 Miller, Legislating Authority, 31.55 Ibid., 47.56 D. Zeevi, Changes in Legal-Sexual Discourses: Sex Crimes in the Ottoman Empire,Continuity and Change, 16/2 (2001): 21942; L. Peirce, Morality Tales: Law and Gender in theOttoman Court of Aintab (Berkeley/Los Angeles, CA: University of California Press, 2003), 119;H. Gerber, State, Society, and Law in Islam (New York, NY: State University of New York Press,1994), 604. The indivisibility of these three sources of normative law was evident also in thecommon practice of amicable agreements (sulh). See: I. TamdoGan, Sulh and the 18th CenturyOttoman Courts of skdar and Adana, Theme Issue: Shifting Perspectives in the Study ofSharia Courts: Methodologies and Paradigms, Islamic Law and Societies, 15/1 (2008): 5583.57 Rubin, Legal Borrowing and Ottoman Legal Culture, 289.58 On the hybrid nature of borrowed law, see: A. Watson, The Evolution of Law (Baltimore,MD/London: The Johns Hopkins University Press, 1985), 94. For a critique on the acceptedtendency to describe Ottoman legal borrowing as a defective imitation of European law, see:R. Miller, The Legal History of the Ottoman Empire, History Compass, 6/1 (2008): 28696.



59 Agmon, Family and Court; Agmon, Social Biography of a Late Ottoman Sharia Judge, NewPerspectives on Turkey, 30 (2004): 83113; Petrov, Everyday Forms of Compliance.60 E. R. Toledano, As if Silent and Absent: Bonds of Enslavement in the Islamic Middle East (NewHaven, CT/London: Yale University Press, 2007), 38.

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Documents

Avi Rubin - Ottoman Judicial Change