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Ottoman Laws


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Kânűnnâme

Law under the Ottomans
Identification: Ottoman Law was adaptable, versatile, multi-purposed, and one of the greatest achievements of the empire. Two previous law systems in use in the world made up the Ottoman law: Islamic Law and customary laws ( unwritten sometimes mixtures of local customs – a law) and these were adopted and called great Ottoman innovations. The normative Law was one of the early modern Ottoman Empire accomplishments ( See below). Customary laws were accepted by the Shari’ah. The Shari’ah was a great innovation of the Ottomans because it was already an stabilized system.

The “Kanun regulated areas where the provisions of the sacred law [ Islamic Law] were either missing or too much at odds with reality to be applicable” (Amber 224). Each Kânűnnâmes were produced for the whole empire as in specific provinces or towns ( exact wording ). Many other statutes needed came from customary laws from local tribal traditions and operated as a living and breathing document from Mehmed II onward. Davud of Kayseri describes the adoption of Islam by Anatolian and Ottoman centers of learning and culture from the first half century of the Ottoman Empire’s existence, according to Colin Amber’s Book “ The Ottoman Empire: the Structure & Power.” Also, Mehmed II’s systemization of colleges brought attempts to control the progress of students, who some would eventually work on his ‘so-called Law Book,’ the Kânűnnâme. . Ashikpashazade credits Orhan ( c. 1324-62) with the foundation in Iznik of the first Ottoman college (Amber 226). Colleges produced kadis, or Judges. Thus medreses ( colleges) and judges (kadis) intertwined making up the vital mechanisms for production of law. Judge’s importance helped scholars understand the Ottoman Empire and judges helped the Ottomans understand their own jurisprudence.

Kadis wrote their court cases without recording their judgments up until around the 17th century. This gave a liberal interpretation freedom to other case looked at by future cases.

The provincial Kânűnnâme as “rationalizations” and adaptations of local “customary laws and explicit “rules” which for a long time were left unwritten (probably due to liberal interpretation and changing concepts), and which the Ottomans have decided to integrate in their legal corpus. In other words, one could play around and place whatever judgment in them without a person brings up an old court case and complaining of getting a harsher sentence. This was dealt with in the European Common laws where the people finally stood up and demanded same sentences for specific crimes. This is washed over in class as just they way the Ottomans did it – i.e. political correctness. However, things changed in the 17th century meaning people started to demand to see older sentences so this liberal interpretation dealing with favoritism didn’t contradict the Ottoman rhetoric of Justice for all. This is not an Orientalist view either, because western courts have not followed previous case rulings and found loopholes, and bribes to follow injustice as well. A question to look at is why the Christians, Eastern Orthodox, and Latins all move back to Europe and not stay under this ‘ so-called ‘ just system of the Ottoman Empire? Why were the Pasha’s who use to come from the Balkans in the early periods before Süleyman ‘ the Kanuni’ now came from Turkish, and Arab backgrounds ( from Syria and other traditional Arab lands?) after Selim ‘the grim’ conquered the Arab lands? What were not told is a demographic ethnic shift of ideologies of inclusion to the said ‘Islamic system of Justice.’ To put it plain and simple the distrust of Balkan Christian element in the viser department significantly correlates to the Ottoman feelings of sentiments to inclusion of this ethnic race into Islam. This is glossed over and suppressed in class as non-significant. The classes’ rhetoric: “Well they just started using people from the Arab lands – that’s all.” This is a failure of the school system in general and a suppression of freedom of speech and inquiries to what went on in the world. Obviously things didn’t work out with Christian visers from the 16th century onward and needs to be addressed not suppressed in one of the supposedly great American institutions.

In all societies customary laws and rules are practices that remain for the most part unwritten but practiced by the participants.

Ottoman law was one of the most important accomplishments of the Empire.
Judges ( kadis) give us a clearer picture of ottoman life as well as they gave an important structure to the Ottoman society.

Laws operated under constant surveillance, changing, expanding and improving over time and over each Sultan administration.

• Islamic Law adopted. When? Not sure. However, after the Ottoman civil war Mehmed II revamped much of the Ottoman system that became standard but built upon for a long time.

Third, throughout the twentieth century, the majority of Islamic and Middle Eastern societies have adopted a new set of codes, a process that began in the second half of the previous century with Ottoman reforms, and which for the most part were derived from European civil-code systems ( Arizona)

• The normative Law was one of the early modern Ottoman Empire accomplishments. There normative laws embedded formal rules that encompassed statutes outside the boundaries of the Shariah but were allowed adherence in the Shari’ah courts in the Ottoman Empire. We call Ottoman courts now the main court which both encompassed the Shariah as well as these progressive normative statutes in this period. The normative Laws was traditional law like the Hanafite tradition, one of the four main Sunni law traditions which established (adopted too) one of the early modern Ottoman Empire accomplishments. However, the shari’ah only encompasses things that were going on during its inception centuries ago. As technology changes, and other circumstances within the Ottoman empire there were little bits and pieces added into the law but always strictly debated and confined to correct application, as far as infallibility of the nature of man.
• Customary laws incorporated local tradition, and previous familiarities with local customs. Blending many different mixtures of local laws tentatively called customary laws in Medieval Western Christendom, most groups managed to employ both.

traditional law was the normative system, Ebu's-su'ud was working wholly within the Hanafite tradition, applying it to the letter. On other, rarer occasions, when traditional law was perceived as incapable of fulfilling the needs of society, he managed to invoke Ottoman secular law while clothing it in a mantle of authority emanating from religious law.

• From Mehmed II onward the Ottoman Laws became statutes, comprised in Kanunmame which operated as a living and breathing document. The laws appear added upon over time by sultans, with the help of scribes and scholars working in the judicial field, trained in medreses. As the Empire expanded and the population densities grew in satellite towns far from the big cities, the adopted criminal codes seem to come from a populations need for assistance in local legislation. This meant that the Ottomans branched out from the city judiciary to the towns. It would be late into the seventeenth century that the Ottomans saw kadis in villages.

• Shariah courts improperly named due to progressed secular laws heard not only by Muslims, but increasingly Christian, Jewish and Orthodox religion issues. Women seemed to get the best deals in regards to divorce settlements and land. We know refere to the Ottoman Shariah courts just as “ Ottoman courts.”
• The concept of the Shariah: The product of scholars constantly updating, reorganizing the Islamic code.

1. Law Books ( Bayezid II Period) secular tax and regulations (Book #2 capital offence)
2. Kanunname Imperial Law i.e. Sultanic laws secular authoritative decrees. Mehmed II’s so called Law Book.
3. Shariah Religious law the totality of Muslim life, the path, the main law of the Ottomans adopted.
4. Subject courts secular & religious and semi- autonomous to only a point, still under the shariah in practice. Christian slaves, Jews, and others non-Muslims. Customary Laws.

Representing a Legitimate Doctrine
Islamic law in the Ottoman Empire was adaptable and versatile. Archaic applications to financial matters in the Ottoman Empire solved themselves through the four law schools, Hanafi, Shafi’i, Maliki and Hanbali interpreting old monetary value into new current standards thus solving the face value dilemma created by evolving international standards. Camels used as currency during the forming of the financial laws became displaced under new world forms of monetary exchange. This showed how the Ottoman adapted to international standards while still using an archaic code. Also, in certain schools of law, people found pleasing choices for differing opinions, such as in the Hanafi literature, citing two avenues to approach difficult cases. This showed versatility and not rigidity.


Ottoman "criminal code" and the court cases.
Reflect on the nature of the "criminal code" as you see it. The criminal section is only a small part of the
Kanunname, or Imperial Law Book--a document constantly underwent amendments--but it always come first.

Islamic Laws:
When the camels are not around you must not frown:
Innovating Laws.
Islamic law in the Ottoman Empire was adaptable, versatile and built upon a notion of justice and legitimate doctrine, in theory.

Fetwas constantly gathered and studied by commoners, as well as the affluent. The mark of and educated person in the Ottoman Empire was that they knew something on Ottoman Law.

Judgments do not provide enforcement, so people had to appeal up the line to the Sultan. One year three responses were issued. This tells us that possibly vigilantism, not really recorded in registries, dealt some justice.

Representing a Legitimate Doctrine

Ottoman Law was adaptable, versatile, multi-purposed, one of the greatest achievements of the empire. Two previous law systems made up the Ottoman law: Islamic Law and customary laws. Davud of Kayseri describes the adoption of Islam by Anatolian and Ottoman centers of learning and culture from the first half century of the Ottoman Empire’s existence, according to Colin Amber’s Book “ The Ottoman Empire: the Structure & Power.” Also, Mehmed II’s systemization of colleges brought attempts to control the progress of students, who some would eventually work on his ‘so-called Law Book’. Ashikpashazade credits Orhān ( c. 1324-62) with the foundation in Iznik of the first Ottoman college (Amber 226). Colleges produced a production of kadis, or Judges. Thus medreses ( colleges) and judges (kadis) intertwined making up the vital mechanisms for production of law. The “Kanun regulated areas where the provisions of the sacred law [ Islamic Law] were either missing or too much at odds with reality to be applicable” (Amber 224). Many other statutes needed came from customary laws from local tribal traditions and operated as a living and breathing document from Mehmed II onward. Judge’s importance helped scholars understand the Ottoman Empire and judges helped the Ottomans understand their own jurisprudence.

Kanunmame :The laws were added upon over time by sultans, with the help of scribes and scholars working in the judicial field. As the Empire expanded and the population densities grew in satellite towns from the big cities, the adopted criminal codes seem to come from a populations need for assistance in local legislation. This meant that the Ottomans branched out from the city judiciary to the towns.


Over time became populations’ called for more assistance in governance. Therefore during the mid-sixteench century more judges were distributed to larger cities and then to large towns, but not in the villages yet.

In general, archaic applications to financial matters in Islam solved themselves through the four law schools, Hanafi, Shafi’i, Maliki and Hanbali interpreting old monetary value into new current standards thus solving the face value dilemma created by evolving international standards. The Ottoman’s used the Hanafi law school as their adopted law. This was the most tolerant according to scholars in all the law schools of Islam. Camels used as currency during the forming of the financial laws became displaced under new world forms of monetary exchange. This showed how the Ottoman adapted to international standards while still using archaic statutes. Also, in certain schools of law, people found pleasing choices for differing opinions, such as in the Hanafi literature, citing two avenues to approach difficult cases. This showed versatility and not rigidity. Also, the use courts incorporated recordkeeping laws as functions representation of local peoples.

Discursive knowledge is created when the topic of a section of comprehensive discourses on the manual of Islamic law regulation of transaction between persons. Does one have possession of something while in delivery or does one have the position only when it arrives in his hands? The topic of the sale, therefore, conditions a large discourse.

A certain tendency of Islamic law will devote itself to intellectual gymnastics. Jurists usually take a practical rule of law and then discuss it hypothetically. Law was seen only in part practical as it was, at least man’s effort to discover God’s will. It is therefore an act of piety to try to incorporate the knowledge of God’s infinity.

The characteristic of conservatism, as noted in the period the law became created, a new discursive discipline of knowledge meant retaining passages of earlier texts and presenting them innovatively to contemporary Ottoman times.

Ebu’s-su’ud (c. 1490-1574) changed enrolment policies of kadi-askers ( Chivizade d’Anatalia) to nominations of students to once every seven years, and numerically at ten each for military judge. The significance showed greater access to underprivileged and outsiders. The nominations were five each for Istanbul, Edirne, and Bursa, the three most traditional locations of the great colleges.

Ebu’s-su’ud, whose first teaching appointment, in 1517, was to the 30 akche College at Inegol. By 1525, he was at the Sultaniyye College in Bursa, a foundation of Mehmed I [?] and two years later, at one of the eight colleges. In 1533, Suleyman ‘kanuni’ appointed him judge of Istanbul, effectively the senior judgeship of the empire, and then in 1537, Military Judge of Rumelia. (Zimber 231).

Therefore a candidate who set out initially to be a judge, at the highest level, would find his path blocked and he could never rise to become Judge of Istanbul (Zimber 232).

If a candidate chose to follow a career as teacher, he could expect an initial appointment in a provincial college with a low stipend. Form here he could advance, with occasional periods out of office, through a hierarchy of colleges (Zimber 230).

Initially, colleges trained Muftis and Kadis, as in Isnik, the first one built by Orhan Ghazi (assumed) . Muftis could issue fetwas, interpretations of the law that were not binding, but the opinions were taken seriously.

The Mufti was a juriscounsult who offered authoritative opinions- fetwas- on all questions of law which anyone, from the monarch to his humblest subject, might ask (Zimber 224 ).

In the early stages of their career, judges could earn more then professors in the colleges at an equivalent level. The lowest nominal amount a judge could receive was 25 akches per day, as against 20 akches for a novice teacher. In addition, he would receive fees and other emoluments (Zimber 231).

If a candidate chose initially to serve as a judge, then he would serve throughout his career in small towns and could never, as a rule, rise to become a judge of a city. These positions ‘ mollaships’ – were the preserve of men who had risen through the colleges usually to become professor at the Eight Colleges (Mehmed II) or at the Suleymaniye (Zimber 231).

17-18th Century, the judgeships became markedly affiliated with family appointments. This showed a closing of opportunity of people with merit. The élite families taking over showed a lose of control for the sultan, initially, because discursive knowledge would find a way back to him.

Molla Sinan became candidate for office after serving as a memorandum writer to the military judge, serving in ‘glorious towns, such as Tire and Alasehir.’then, through marriage, he became the protégé of a certain Ramazan Pasha, through whom he acquired a power as financial inspector and, with it, the opportunity to accumulate wealth. In view of his new position, he began to regard a small judgeship as too humble and to seek a mollaship. To this end, he attached himself to the following of the Grand Viser, Ibrahim Pasha, commander of the army in Hungary. This must have been in 1599-1601. the viser on his behalf, secured the elevation of the judgeship of Tire- a small town in western Anatolia – to a molloship and its bestowal, in 1606, on Molla Sinan. The mollaships of the great cities, however, which secured access to higher office, remained the monopoly of the elite (Zimber 232).

The Judges were the most important day-to-day administration figures of the Ottoman Empire. Every city, town, village and settlement within the empire came under the authority of a judge. This meant allot of judgeships with opportunities for work. Everyone had access to a judge. There was also an absence of lawyers. This meant people had to represent themselves. Hanafi law no matter what the legal statutes or religion took part as the one out of the four Islamic traditional law schools that became their standard.

The court, it seems, would usually meet in a judges house, where all his functions, the judge had assistance of a deputy, who would conduct proceedings in his absence, and a clerk or clerks who kept records, and could also carry out investigations outside the courtroom (Zimber 232).

Judges performed more than functions of disputes, they also registered and recorded Imperial Council addresses and commands to perform. This could involve levies on oarsman, or transactions of sheep trade to overseeing allocations and deliveries for cooks, saddlers, cobblers and others – to the army - where the jurisdiction falls within the secure routs from the main cities.

The role of the mufti in the Ottoman empire was harder to define. The Mufti of the sixteenth century not only rose to become the chief mufti of Istanbul, but became a senior figure I the religious and legal hierarchy (Zimber 234). Other muftis were normal professors in the 15-16th centuries, and some as college professors.

A mufti could issue a non-binding ruling, a fetwa, then it could proceed to the palace where the sultan could rule on it giving it a binding – called a sultan decree.

Kanun regulates areas where the provisions of the sacred law were either missing or too much at odds worth reality to be applicable (Zimber 244). Criminal law, lend tenure and taxation made the bulk of the secularized laws.

Non-tax payers became to be known as the askeri – class. The adjective describes their function more or less accurately, since most members of the class were soldiers,either timer holding cavalrymen, or else janissaries and members of the Six divisions of palace cavalry who recived their salaries from the treasury. However, in addition to these men and to the vizers and provincial governors, who served as army commanders, the military class also comprised courtiers in the palace and members of the religious, teaching and legal professions (Zimber 245).

Askeri – class. The appointed judges in the provinces they administered.

The general term for the tax-paying class in Arabic, term coming from the sacred law, ra’iyyetor, in the plural, re’aya ( ‘flock’). The huge majorities of these were peasant cultivators, and in its technical sense, the term ra’iyyet referred to a peasant who cultivated a plot of land by virtue of a contractual agreement with the fief holder as representative of the sultan. In a general sense, the term referred to all Ottoman subjects who were not members of the military class (Zimber 245).

The formulation of a terminology to describe tax payers and non-tax payers is a result of attempts at the end of the fifteenth century to define their legal status (Zimber 245). Bayezid II had an issue with a judge and a sanjack governor which caused a conflict of jurisdiction over re appointment causing a clear definition for who pays the taxes in regards to military positions, or positions that support the military. Another tax exempt status was a slave women of the sultan as long as she was married to a military officer.

The legal and fiscal relationship between the military class and the taxpayers – mainly in practice, between timar holders and peasants forms the main subject of the secular law (Zimber 246). These statutes emerge with Bayezid II’s command. Cadastral surveys assess the lands. Tax farming is a type of usury, although against Islamic law, becomes a practice for quick cash, backed by promises for future tax revenue – at an agreed assessment of futures.

These new laws were in a book called the Law Book. 1487 the Law book of Bursa provided the model for future law books (Zimber 247). Most of the practices and laws appear to be pre-Ottoman, and some compilers belived that they were restating Akkoyunlu period laws. Therefore, most of the laws or had local origins from previous dynasties.

Torture used to confess a crime appears recorded in 1487 Law Book of Bursa. Although, we find out that a subashi cannot kill a man without the a judges order – thus one must take an offender to trial. (Zimber 250). In addition according to the Ottoman criminal statutes, punishment for non-capital offenses consisted usually of strokes of the lash, fines, or combination of both. Whether the authorities followed the statues closely is not determined. For stabbing it prescribes and unusual punishment. ‘ [ The offender] should have knives stuck into his arms, and he should be paraded [ in public.]’ Spandounes provides evidence that this did indeed happen, when he notes: “ If a person draws a weapon against another, the Judge has him…. Stabbed in the flesh with five, six or seven knives.. and led around the public places in this way. (Zimber 250).

Slander under the Shariah was a serious crime.

The Judge is a key character in Ottoman History: For us to understand their history and for the Ottomans to understand themselves.

Schools of the Judges:

Mehmed II’s education policies helped establish academic standards, procedures and guidelines. He built eight medreses for the ulema to study and become teachers and judges. A Judge meant one was on the imperial payroll and advancement into upper echelons of authority restricted themselves at this level. However, a professor at a college could theoretically work themselves into the top judgeships, as kadi-askers, or head mufti of Istanbul.

How do laws become established? It is said that Mehmed II shopped around for a long time to receive a favorable fetwa to implement fratricide. This meant that if one didn’t like an opinion of a Mufti one could look to other places to get desired opinions.

Beyazīd put together Ottoman reforms in a book called “The Laws”

Mehmed II’s education policies helped to establish academic standards, procedures and guidelines for kadis.

Work Cited
Zimber, Colin, The Ottoman Empire: The Structure & Power. The Law, The Ottoman Empiure 1300-1650.

 


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