An Introduction to Islamic Law (22 page)

The new wave of reforms led to the adoption of the
Penal Code of 1858 and the
Land Law of the same year. Likewise, a series of
French-inspired commercial codes, including a
maritime commercial code, were promulgated for the benefit of the
New Courts. Similarly, the Land Law of 1858 required the cultivators of state land to register their lots under their names, a step intended to secure direct payment of taxes to the central government, thus eliminating the intermediaries who traditionally claimed a percentage of the revenue. In
Egypt, the process had started earlier, but in all cases the land code, in both of its varieties, was also designed to implement a policy aimed at binding the peasants to the land. Although it was purported that these modernizing codes were conceived as a contribution to the emergence of private property, their effects on peasants (a large segment of the population) were disastrous in more ways than one. Fearing conscription and excessive taxes, they registered the lands they cultivated in the names of deceased family members, city magnates or rural notables. The end result was the conversion of
their position from controllers of land to tenants who could be evicted at will.

The new land code (in both the Ottoman Empire and
Egypt) had the remarkable effect of producing, toward the end of the century, a landed class that rivaled the religious elite in terms of political and material power. The families who profited from the changes brought about by the new land and other codes, and by the emerging bureaucratic and administrative structures, were secular in orientation. Yet, some religious families also held large tracts of land, continued to hold on to their positions of power, and managed to partake in the advantages these land codes had created for members of the upper social strata
. And in order to compete in the market of new economic realities, they inserted themselves in the secular
bureaucracies of the state, gradually changing their “specialization” and identity as members of a privileged religious establishment. By the end of the century, the children of these families, both secular and originally religious, were largely integrated into the
state bureaucratic machinery and politics at the district, provincial and national levels. This social transformation of the religious elite explains, at least in good measure, why the upper
ulama class did not mount any serious resistance to the major transformations that took place, inter alia, in the legal system.

In the midst of these foundational and structural changes, European pressures on Istanbul continued to increase dramatically. Deeply in debt after the Crimean Wars, the Ottomans secured, in 1860, substantial loans from
Britain, but not without the latter attaching to the loan-agreement certain political and economic strings. As if the capitulations and concessions in favor of foreign nationals were not enough, the British demanded and secured further allowances pertaining to the purchase of real property in the Empire. The introduction of the
land codes, which had essentially privatized real property, was one step in this direction. But in order to maximize the opportunity for profit, they also demanded, and received the promise, that the
waqf
system – which barred much real property from entering the open market – would be abolished.

Over the next two decades, the pressure was renewed with added vigor by both the British and the
French, whose scholars – doubling as colonial officers – were already propounding the idea not only that
waqf
s reflected a primitive mode of existence and belonged to the decadent history of the now maligned “church,” but also that they impeded economic development and thus the much desired “progress.” These pressures, coupled with Istanbul’s conviction as to the superiority of Western culture, created a mood among the reformist bureaucrats that translated into a massive ideological campaign portraying
waqf
as a cause of cultural malaise and material decline. In 1909 the reformers moved aggressively against the
waqf
, thus initiating a process which led eventually to its abolition in the
Turkish Republic and elsewhere. But the ideological preparation for this move had been underway since as early as the middle of the preceding century
.

Beginning in 1864, there were also attempts to reorganize and restructure the judiciary at the provincial level. On the benches of
appeal courts there presided, in equal numbers, Shari
a judges and elected members of the civil service, signaling a yet further step in formalizing the process by which civil officers and technocrats had now come to share the judicial powers of the
qadi
s. Conversely, installing Shari
a judges in the
New Courts suggests that there was a confluence between the traditional and new legal professions, one that prevents us from drawing neat lines of separation between the two systems. This concourse was further augmented by the fact that the Shari
a courts themselves also underwent a modernizing administrative and procedural reorganization, even as their jurisdiction was becoming increasingly limited to the spheres of personal status and the diminishing
waqf
.

As a part of these
centralizing policies, all Shari
a – and
Nizamiyye – personnel were appointed by Istanbul, and the age-long
principle of judicial delegation ceased for good. This administrative act, together with the payment of
salaries directly from Istanbul, further consolidated centralized control, and transformed the Shari
a court into an official arm of the
state. Judicial centralization was manifested in the creation, as part of the Nizamiyye courts, of the
COURT OF CASSATION
, whose seat was in Istanbul, comprising both civil and criminal sections. And for the benefit of supervision by the
Istanbul Ministry of Justice, all courts were ordered to report the cases they adjudicated once every three months.

The transposition of Islamic law from the fairly independent and informal terrain of the jurists to that of the highly formalized and centralized agency of the state found manifestation in the compendium entitled
Majallat al-Ahkam al-
Adliyya
(henceforth: Majalla). Between 1870 and 1877, the sixteen books making up the Majalla (containing 1,851 articles in the Turkish language) were published, all dealing with civil law and procedure to the exclusion of marriage and divorce. One of the aims of the Majalla was to provide, in the manner of a
code, a clear and systematic statement of the law for the benefit of
both
the Shari
a and the Nizamiyye courts, a statement that was geared to a professional elite that had lost touch with the tradition of Arabic juristic interpretation. Yet, the source of this codification was the
corpus juris
of the
Hanafi school, especially those opinions within it that seemed to the drafters to offer a modernized version of Islamic law.

The Majalla was to be implemented in the Nizamiyye courts, whose staff were increasingly being trained in non-Shari
a law. But since no juristic opinion was truly binding on any judge without the sovereign’s intervention, the Majalla, after its complete publication, was promulgated as a sultanic code (a momentous act sanctioning, once and for all, the supreme authority of the state, and demoting that of the Shari
a). Yet, while in structure and appearance the Majalla was code-like, it did not really function as codes do, enjoying unrivaled, exclusive authority. In practice, it continued to coexist with the books of the
jurists, or whatever was left of them on the benches of the slowly vanishing
qadi
s. And it was soon to have a fierce rival in the
1880 Code of Civil Procedure, modeled, again, after the
French example
. Toward the close of the century, procedure was steadily and rapidly gaining greater importance, it being increasingly seen, in the manner of all modern legal systems, as the backbone of the law. The highly formalized and complex procedural protocols represented a large domain in which the Shari
a was almost totally replaced.