An Introduction to Islamic Law (21 page)

The
salarization of
waqf
administration constituted the first step toward the salarization of the entire legal profession, which was to take effect in the wake of the
1839 Gülhane Decree. During this period, there was a series of minor, but important, judicial reforms aimed at instituting new policies for judicial appointments, including entry exams, and the replacement of
court fees as funding for the judiciary – a hallmark of Ottoman practice – by salaries. Like all other civil servants, the
qadi
s were now prohibited from collecting dues on inheritance division or for issuing deeds or court documents. Their monthly salary was to be paid directly by a salaried imperial comptroller who had now himself been charged with collecting all court revenues
. Furthermore, in an effort to create a clear distinction between the judicial and executive spheres, the
provincial governors as well as the
grand vizier were deprived of their
tribunals, thus becoming an integral part of the steadily centralized court system
.

These fundamental changes were made to be concomitant with institutional restructuring. Already in 1838,
Mahmud II had created the so-called
Supreme Council of Judicial Ordinances, a body that not only prepared the ground for the later
New Courts (Nizamiyye; Ar. Nizamiyya) but also signaled the removal of the judiciary from the Shari
a domain to that of the
state. The Supreme Council set itself up as the highest court in the land, controlling and supervising the activities of all courts as well as all quasi-judicial assemblies of provincial governors.

In 1840, and in the spirit of the 1839 Decree, a modern-style penal code that was yet grounded in Islamic criminal precepts was promulgated. Furthermore, new
local councils began to be formed of civil notables,
a
qadi
, a
mufti
, and representatives of the local communities, including non-Muslims. These councils were, much as before the reforms, responsible for civil, judicial and financial matters, but their new organization and formal constitution were intended to mark a departure from the traditional,
qadi
-centered administration. Whereas the
qadi
had been the leading judicial and administrative officer in the pre-reform councils, he was now relegated to a secondary position, or at least to that of one among many others of equal importance. The new leaders were the
government employees, the administrators and those who were soon to become bureaucrats. It was these persons, together with the notables representing segments of the community, who were in charge of hearing the major suits brought before the
qadi
’s court. Whereas before the reform the “court assembly” assisting the
qadi
in
legal matters
consisted of the learned scholars (mainly
mufti
s), now they were non-Shar
i figures who represented the interests of the community in an official, state-determined capacity. These officials emerged, as before, from within the community, but it was now the central government, not the community and its
immediate representatives, that decided how, when and under what conditions they should serve
.

However, aside from installing a modern system aimed at improving the method of tax collection, the most serious change that came in the wake of the Gülhane Decree
was the gradual rise of the
Nizamiyye courts, named after the so-called
New Order. This latter administration, which produced new courts, new laws, a new judicial process and – by the end of the century – a new legal culture, operated at the nominal orders of the
sultan who, for the first time in the history of the Empire (and of Islam as a whole), placed himself as well as his bureaucratic legislative council above the Shari
a. His power to legislate the
qanun
s (government regulations), which had complemented and supplemented, but had never overridden the Shari
a and its law, now became overarching and universal.

The sultan’s reforms – in effect representing the political will of a Westernizing and secularizing
Istanbul elite – also reflected the enormous European and Russian pressures on the Empire. For example, under these pressures a commercial Nizamiyye court was first established in Istanbul with a jurisdiction pertaining to disputes between and among Ottoman subjects and European nationals. A
criminal court, with the same jurisdiction between various nationals, was created in 1847. In these courts,
foreign consuls and consular representatives of European states enjoyed the right to veto the decisions of the court against their respective nationals, thus in effect holding powers that entitled them to entirely neutralize court verdicts at will. (The severity of such intrusions can only be imagined if we were to assume that China had the right today to veto and neutralize the decisions of US courts in cases where Chinese nationals were convicted for criminal activity in the United States.)

Under clear
French influence, the first Westernized
commercial code was promulgated in 1850. A second
penal code was introduced the next year, defining, with more specific details, the jurisdictional boundaries between the Shari
a courts and the new criminal courts. In 1854, the
Supreme Council was transformed into the
Supreme Council of the Tanzimat, one of whose first acts was the promulgation of a new
criminal code that showed the greatest dependence yet, this time on the French
penal code of 1810. The new name of the Supreme Council
epitomized the worldview of the Ottoman modernizers who saw in their reforms a means to accomplish “order,” “regularity” and “law,” all of which stood in diametrical opposition to the steadily diminishing Shari
a culture that was perceived as lacking on these counts. The Tanzimat (literally meaning “ordering”) constituted a regimenting practice, and reflected highly modern notions of discipline, law, inspection and incarceration. Indeed, these notions found expression not only in the evolving judicial structures and
codes (as well as reporting, statistics, centralized supervision and surveillance), but also in the significant fact that the Nizamiyye legal order generated – along with a distinctive legal culture of its own – an unprecedented and colossal
prison system that was part of this culture and that could accommodate inmates for up to twenty years. This is to be contrasted with the fact that such prison terms and prison systems were entirely unknown to the Shari
a.

With the conclusion of the
Crimean Wars of 1853–56, the Ottomans incurred further debts
to France and
Britain, both politically (for their military support against the
Russians) and financially (for the major loans the British made to Istanbul). These debts translated into further, intense hegemonic pressures on Istanbul, resulting in another series of concessions embodied in the
Humayun Decree of 1856. Unlike its 1839 predecessor, which was compiled by Ottoman senior statesmen, the 1856 Decree was drafted after intensive consultation with the French, British and Austrian ambassadors. It moved further away from the Islamic principles of governance, not mentioning the Quran or the Shari
a once, for instance. It emphasized European-style representative government, and furthermore gave non-Muslim minorities formal rights (again, defined by Western conceptions of governance) equal to those enjoyed by the Muslim subjects of the Empire. This was not only a European imposition, but an Ottoman strategy that aimed at appeasing and absorbing the nationalist sentiments that were making themselves known in the provinces. The constitution of the new Nizamiyye courts reflected this new reality no less than did the structural changes in the laws of evidence and procedure
.