Abstract
Until the nineteenth century, “justice” (adalet) was conceived primarily in terms of protective relations between the sultan and his subjects.1 In the most general sense, justice was founded on an unwritten pact between the sultan and his “flock” (reaya), according to which the sultan was committed to protect the tax-paying population from abuse by state officials. Various administrative mechanisms and customary practices provided ordinary people with direct access to the central administration. Eradication of abuse by state officials was a major preoccupation in the Justice Decrees (adaletnames) that were issued by the state through the centuries.2 The mechanism of “complaint” (Şikâyet) allowed peasants, nomads, and city dwellers alike to address the sultan in person or in writing, directly or through the provincial governors; thousands of these petitions were recorded in the Registers of Complaints (Şikâyet Defterleri).3 The passage of Ottoman law to modernity in the nineteenth century did not result in a complete disappearance of this centuries-old pact between the ruler and his subjects. However, justice increasingly came to be defined in terms of procedural standards and universality of judicial practice.
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Notes
This characterization of Ottoman justice refers to the formal, hegemonic conception thereof. Boğaç Ergene demonstrates that the premodern Ottoman discourse of justice was more diverse than conventionally assumed. It contained various interpretations, some of which were actually counterhegemonic. Boğaç Ergene, “On Ottoman Justice: Interpretations in Conflict (1600–1800),” Islamic Law and Society 8 (2001): 52–87.
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Michael Ursinus, Grievance Administration (şikayet) in an Ottoman Province: The Kaymakam of Rumelia’s ‘Record Book of Complaints’ of 1781–1783 (London, New York: RoutledgeCurzon, 2004).
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Sami Şemseddin, Kamus-i Türki (Dersaadet: İkdam Matbaasi, 1317 [1899]).
Legal formalism, being an offshoot of legal positivism, maintains that judges’ interpretation of the rules can and should be kept as minimal as possible, because individual interpretation of positive law does not agree with the principle of separation of powers. The state is the sole producer of the rules, and in principle they can form a coherent system. This conceptualization of the judicial process has been subject to a vast body of scholarly critique for many decades, mainly from the perspective of legal realism and critical legal studies. According to this criticism, legal formalism is a myth, which conceals the fact that adjudication is always a highly interpretive act. As such, all judicial processes are imbued with conflicting interests, and they reflect dynamic power fields and power relations. For studies that summarize the debate concerning the two conceptualizations, see Brian Leiter, “Legal Realism and Legal Positivism Reconsidered,” Ethics 111 (2001): 278–301;
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For instance, Morton J. Horwitz, The Transformation of American Law, 1780–1860 (Cambridge, Mass.: Harvard University Press, 1977).
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See, for instance, Anton Minkov, “Ottoman Tapu Title Deeds in the Eighteenth and Nineteenth Centuries: Origin, Typology and Diplomatics,” Islamic Law and Society 7 (2000): 65–101.
According to Young, the Court of Cassation neither heard witnesses nor summoned the litigants, but decided on the basis of submitted documents, including protocols and depositions. George Young, Corps de droit ottoman; recueil des codes, lois, réglements, ordonnances et actes les plus importants du droit intéerieur, et d’études sur le droit coutumier de l’Empire ottoman, volume 1 (Oxford: The Clarendon Press, 1905–1906), 181. However, the case reports of the Ceride show that the appellants and defendants (or their attorneys) were allowed to make oral statements in the presence of the court, if they wished to.
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For instance, Silvana Patriarca, Numbers and Nationhood: Writing Statistics in Nineteenth-Century Italy (Cambridge, UK and New York: Cambridge University Press, 1996);
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Working on early-modern Şeriat courts in northern Anatolia, Boğaç Ergene found hardly any evidence for the usage of court records as evidentiary instruments in litigation. Boğaç Ergene, “Evidence in Ottoman Courts: Oral and Written Documentation in Early-Modern Courts of Islamic Law,” Journal of the American Oriental Society 124 (2004): 471–91.
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For a similar case that resulted in a similar decision by the Court of Cassation, see CM, 13,364. See also Fatmagül Demirel, Adliye Nezareti: Kuruluşu ve Faaliyetleri, 1876–1914 (Istanbul: Boğaziçi Üniversitesi, 2007), 182.
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Classes started in 1880. On the establishment and operation of the Law School in Istanbul, see Ali Adem Yörük, “Mekteb-i Hukuku’un Kuruluşu ve Faaliyetleri (1878–1900)” (MA diss., Marmara University, 2008).
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Attempts to establish bar associations in the provinces were unsuccessful, and the Istanbul bar, which was established in 1876, had little impact. Ibid.; Donald M. Reid, Lawyers and Politics in the Arab World, 1880–1960 (Minneapolis, Chicago: Bibliotheca Islamica, 1981), 84.
Şehbaz refers here to the practice known as kâgit haffafliği, namely, writing official papers in return for payment. In the nineteenth century, this practice assumed a negative image in the eyes of the reformers. Carter Findley, Ottoman Civil Officialdom: A Social History (Princeton, NJ: Princeton University Press, 1989), 216.
See, for instance, Mehmet Refik Tamimi and Mehmet Behcet, Beirut Vilayeti (Beyrut: Vilayet Matbaasi, 1333 [1917]). For a study of this text.
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E. P. Thompson, Whigs and Hunters: The Origin of the Black Act (New York: Pantheon Books, 1975), 265.
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© 2011 Avi Rubin
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Rubin, A. (2011). The Age of Procedure. In: Ottoman Nizamiye Courts. Palgrave Macmillan, New York. https://doi.org/10.1057/9780230119062_4
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DOI: https://doi.org/10.1057/9780230119062_4
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