Maisonneuve & Larose

Apostates and Bandits: Religious and Secular Interaction in the Administration of Late Ottoman Criminal Law Author(s): Ruth A. Miller Source: Studia Islamica, No. 97 (2003), pp. 155-178 Published by: Maisonneuve & Larose Stable URL: http://www.jstor.org/stable/4150605 Accessed: 28/11/2009 00:48
Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at http://www.jstor.org/action/showPublisher?publisherCode=mal. Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission. JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.

Maisonneuve & Larose is collaborating with JSTOR to digitize, preserve and extend access to Studia Islamica.

http://www.jstor.org

StudiaIslamica, 2003

Apostates and Bandits: Religious and SecularInteraction in the Administration of Late Ottoman Criminal Law

In 1887, the professional alim, Omer Hilmi Efendi, replaced the equally professional alim, Ahmet Hilmi Efendi, as Ottoman central cassation court president - one of the highest offices within the Ottoman Empire's secularizing' nizam'2 criminal court system. 3 In the process, very little comment about the affiliations of these members of the ulema corps was made. Indeed, the document noting this transfer of administrative duties appears to take the integration of these members of the religious establishment into the nizami court system purely as a matter of course - much like the hundreds of similar documents appointing lower level ulema to other nizaml administrative positions. Such being the case, one begins to wonder where exactly the classical and paradigmatic nineteenth century battle between a conservative, traditional religious establishment and a reformist, modernizing secular

1. The word "secular" a problematic loadedone. It has a numberof meais and For and nuancesdependingupon who is usingit and forwhatpurposes. my nings heapurposes,I am calling"secular" anythingwith ties to the politicalhierarchy as ded up by the Sultannot in his capacity Caliph.I am alsocalling"secular" anyheaded up by the Seyhiilislam. thing that is not tied to the religioushierarchy Finally,I am calling"secular" legalcase that was not triedaccordingto basic any Islamiclaw principles. set 2. Relatingto the "secular" courthierarchy up in the OttomanEmpireto supreformefforts. the government's port 3. iradeler,Dahiliye,85244 18 L 1305.

155

Ruth MILLER A.

establishment played out.4 Upon first glance, it seems clear that this battle, if it did indeed occur, was certainly not engaged in the arena of criminal law reform. The purpose of this article will be to examine this immediate conclusion in more depth - to consider the interaction, rather than competition, between the religious and secular legal establishments in the context of late Ottoman reform. By focusing upon one smaller aspect of the Ottoman criminal law system - court procedure and administration - it will attempt to demonstrate that as time passed, the Ottoman religious and secular legal systems became integral parts of one another. Moreover, as this integration occurred, the Ottoman legal system became increasingly both more modern and more authoritarian. Before continuing with the details of the argument, however, a brief bit of historical background will help to put it into context. Throughout the 19th century, the Ottoman government promulgated three codes of

4. Almostwithout exception,scholarsin the past have seen Ottoman reformin of as general,and Ottoman legalreformin particular, a processof separation the the with the seculareventually"overcoming" religious. religiousand the secular, See for example Ehud R. Toledano,"The LegislativeProcessin the Ottoman Studies1, International Journalof Turkish Empirein the EarlyTanzimatPeriod," no. 2(1980): 99-106. p. 99. T. Miras, "Le tanzimatet son systeme legislatif," Annalesde la Facultede Droit d'Istanbul (AFDI) 17, no. 26, 27, 28 (1967). pp. du 26-28. K6ksalBayraktar, sur "Influence droit frangaise les tentatives mode du 42 turc pour s'occidentaliser," Annalesde la Facultide Droit d'Istanbul juridique of (1979). pp. 321-2. And many others.For a more classicalinterpretation this New York: Bedminster and Press,1968. thesis,see MaxWeber,Economy Society. vol. 2, p. 822. "Weactuallyfind in all the greatIslamicempiresof the present time a dualismof religiousand secularadministration justice:the temporal of officialstandsbesidethe khadi,and the secular besidethe shari'ah...this seculaw larlaw (qanun)beganto expandfromthe verybeginning.., and to assumeincreasing importancein relationto the sacredlaw, the more the latterbecamestereoin of typed."B.A. Robertson,"TheEmergence the ModernJudiciary the Middle and Contemporary East,"in Chibli Mallat, ed. Islamand PublicLaw: Classical to London:GrahamandTrotman,1993, likewiseadheres this thesis.He Studies, also, however,makesan importantpoint that "theoveralleffect of this development was... enhancingthe abilityto manipulate use religionfor the purposes and of the state."p. 110. Many have likewiseseen Ottoman and Turkishreformat leastto some extentas a processof liberalization. for example,B. Lewis,The See, London:OxfordUniversity Press,1968. Emergence ofModernTurkey. 156

and Apostates Bandits

criminal law. The first appeared in 1840, directly following the 1839 Edict of Gulhane, which kicked off the Tanzimat5 reform period. There is some debate as to whether or not this particular code was a "real" code, 6 but suffice it to say for now that whatever its merits, it was an attempt at the very least to regularize the administration of criminal law and also to introduce certain quasi-liberal ideas into the newly forming legal system.7 A decade later, in 1851, a second code of criminal law appeared - quite similar to the first, but inclusive of the rulings of the past eleven years.8 Like the first code, the second also represented a clear attempt to place criminal law squarely into the new Tanzimat framework. Indeed, it is organized rhetorically in exactly the same way as the 1839 Giilhane Edict - with an introduction, and then sections on respectively "crimes against life," "crimes against honor," and "crimes against property."'9Finally, in 1859, the Ottoman government promulo gated a last code of law inspired by the 1810 Napoleonic Criminal Code. It might also be mentioned that in 1876 the first Ottoman Constitution appeared, " inspired by the Belgian law. Each of these codes and legislations represented a new phase in the development of Ottoman legal ideology. Moreover, as the cases tried in this period will

5. "Tanzimat" In literallymeans "regulations." brief it refersto the Ottoman betweenthe years1839 and 1876 to introducequasi-libegovernment's attempt ralideasand practices the rightto life, honor,and property all Ottomansubof to ject/citizens- into the state structureand, more importantly, centralizeand the "organize" systemof governance. 6. See for example G. Bozkurt, "Tanzimatand Law," Tanzimat'in 150. Yd
UluslararasiSempozyumu.Ankara: TUrk Tarih Kurumu Yayinlari, 1994. Doiniimii pp. 279-286. B. Lewis, p. 161. and others. 7. See the explicit references to the Edict of Giilhane in the 1840 Code as pre-

sented in Ahmed Lutfi, Mir'at-z Adalet,yahud Tarihfe-i Adliye-yi Devlet-iAliyye.

Istanbul: Kitapli Ohannes, 1304/1888. p. 128. 8. Ibid p. 150. Bozkurt, p. 282. 9. Ahmed Litfi, p. 150. 10. Once again, there is debate about the extent to which the 1859 Ottoman Code was a "translation" of, versus an homage to, the Napoleonic Code. See Bozkurt, p. 282, N. Sensoy, "Reception of Foreign Codes of Criminal Law and Criminal Procedure in Turkey," AFDI 5, no. 6(1956): 182-185. p. 183. K. Bayraktar, p. 321. D. Ergil, "Secularization of Islamic Law and Institutions in Turkey," Studies in Islam 15(1978): 71-142. p. 97. T. Miras, p. 36. 11. R. Okandan, Amme Hukukumuzun Ana Hatlart. Istanbul: Fakiilteler Matbaast, 1957. p. 73.

157

Ruth MILLER A.
each law also demonstrate, legislation pushedthe Ottomancriminal in a moreinteractively andsecular a moreauthoriand system religious tarian direction.

CASES

1840-1850 Theyears 1840to 1850mark beginning a Tanzimat the of influence on thedirection Ottoman of that criminal andit is in these law, years the firstnizami in thisperiod criminal waspromulgated. cases code The tried reflect firstattempts passing the and at sentences legitimiconsequently of otherthan,or in addition zingthesesentences means a philosophy by at to,?eriator thewillof theSultan. Nizami concepts thistimewereself and into consciously quiteextensively legal integrated the overall framework.They wereso greatly in emphasized, fact, that the next period wouldbe a time of readjustment moreoriented toward philosophy a towarderi'principles. 12 At the sametime,the procedure bringing casesand comingto for conclusions themremained about the similar although exactly same not to, 13 or Ingeneral, theprincipals a case of as,thatof thepre-Tanzimat period. thepolice would thatcaseto theattention either localcouncil the of bring orthegovernor,tentative a decision be would taken if necessary, ~' and, ger " writs legitimizing decision the and would Thewrits a report composed. thenbesentto thecentral if the council writs, rele(Meclis-i Vd1d), original vant,wouldbe confirmed the officeof the?eyhiilislam,the reports 15 by would confirmed thecentral be would be and council, finally by everything sentback thelocalcouncil governor implementation. situato or The for tionin place, and was level at therefore, oneinwhich thelocal thetemporal divine systems to a large The and extent. governor thelocal legal overlapped council both?er'iandnizami saw with in cases. Theyalsoworked concert the localreligious At should ?er'iwritbe necessary. a higher a authority of remained The level, however, relatively things separate. office theSeyhii12. See below for an elaboration.

office of the Seyhiilislam a local religiousauthorityand attachedto many of or

for of 13.Seebelow a discussionspecific cases. 14.Literally er from decision of a ilam-z '. Theconfirmation legal coming the
15. Head of the Ottomanreligioushierarchy.

these files. case

158

and Apostates Bandits

lislam saw the ?er 'i writs and confirmed them, the central council looked at the reports and confirmed them, neither consulted the other, and then the confirmation was sent back to the local authorities. As time passed, a marked change occurred in the process described above. On a more concrete level, we can look at the numerical distribution of Jer 'iv. nizamnconcepts as they relate to, variously, the legitimization of legal decisions, the proof used in coming to these decisions, and the sentences carried out after confirming the decisions: Period/Type6 1840-1850 Writ:yes/no Legitimization Proof Sentence
1851-1858 Writ: yes/no

Seriat/Yes Nizami/No $er 'i Writ 59% 24% 58% 39% 41% 30% 16% 45%

BothlSiyasit7 Neither Ser 'i Writ Sentence

35% 16% 16%

12% 11%

62%

39%

Legitimization Proof
Sentence

35%
57%

12%
21%

41%
21%

12%

1859-1876 Writ: yes/no Legitimization Proof Sentence

47% 16% 29% 20%

53% 19% 29% 76%

62% 41% 4%

4%

16. This tablewas composedof informationfound in the followingdocuments. iradeler: 323, 515, 53, 19, 210, 137, 59, 129, 237, 398, 417, 355, 555, 519, MV 540, 343, 905, 939, 817, 924, 808, 560, 330, 493, 328, 310, 299, 188, 294, 534, 36, 96, 63, 1863, 498, 3025, 901, 83, 69, 104, 411, 364, 306, 758, 1006, 900, 205, 10580, 11154, 11568, 17927, 16180, 7547, 7996, 11495, 15203, 8540, 18500, 25820, 23337, 20156, 21908, 21943, 23306, 15105; DAA 296, 577, 825, 834; SD 957; MM 2028; AM 1311-M-2/29, 1310-S-9/3, 1317-Z-14/6, 1314-Za-15/7, 1313-Z-14/6, 1327-Za-8/8, 1319-M-18/8, 1328-S-14/19, 1328C-8/7; Dah. 617, 765, 3095, 20911, 39448, 31370, 68969, 87271, 95210, 16465, 69484. Meclis-i Viikela: 35/17, 93/28, 36/7, 109/8, 101/32, 106/72, 110/72, 110/87, 118/28, 121/32, 232/121, 231/199. to 17. "Referring the politicalauthority."

159

Ruth MILLER A.

As the table above demonstrates, out of a sample of twenty-five documents and thirty-five serious '8 cases spanning the years 1840-1850, 59% " contain ?er 'i writs and 41% 20 do not. When it comes to the legitimization of decisions - that is, a decision that is taken by "the requirements of ?eriat," 21 a decision taken by "the requirements of the imperial legal code," or a decision that rests upon a combination of the two 24% 22 were decided by the requirements of ?eriat, 30% 23 were decided by the requirements of the code, 35% 24 were decided by a combination of both, and 12% 25 referenced neither. As for the proof forwarded during the trials,26 58% 27 were proved by ,er 't rules, 16% 28 were proved according to the rules set out in the code, 16% 29 were proved using a combination of the two, and 11% 30referenced neither. Finally, of the sentences imposed, 39% 3 were ver'fsentences, 45% 32 were sentences taken from the code, and 16% 33 were siyasi (discretionary political/administrative) sentences - that is, for example, banishment or execution legitimized solely by the will of the padigah or the political authority. We can tentatively conclude based upon these numbers that in the period between 1840 and 1850 - overseen by the first Tanzimat criminal code - there was to some extent an incorporation of ?er 'Iprinciples into the nizami system. The legitimization of cases, for example, was undoub18. Tryingsuch crimesas murder,theft, rebellion,corruption,and brigandage (with a heavyemphasison murder). 19. Sixteenout of twenty-seven. 20. Elevenout of twenty-seven. 21. Almostalwaysa ktsas talionis)case,sometimesa diyet(bloodmoney)case, (lex but also on occasion,a jail sentenceor hardlabor. 22. Eight out of thirty-four. 23. Ten out of thirty-four. 24. Twelveout of thirty-four. 25. Fourout of thirty-four. 26. Manyreports note thatthe casewas"tespit" "riiyet" will or "er'iyyan,""kanucase nen,"or both. If the defendantconfessed,that particular will be left out of the sample. 27. Elevenout of nineteen. 28. Threeout of nineteen. 29. Threeout of nineteen. 30. Two out of nineteen. 31. Twelveout of thirty-one. 32. Fourteenout of thirty-one. 33. Fiveout of thirty-one.

160

and Apostates Bandits

tedly weighted toward a combination of seriat and the code. To a large extent, however, religious and secular principles also remained more separate than they would in later years. er 'i ideas dominated in the more abstract, philosophical areasof the law - such as proof and procedure - whereas the tenets contained in the more secular code dominated in more practical areas, such as sentencing. The anecdotal evidence contained in a number of these cases bears out the above conclusions. In a murder/treason (katl/fesad) case from 1839-40, for example, a defendant on trial for both crimes is sentenced "by the requirements of ?eriat"34 to a harsh secular penalty (hard labor). The logical conclusion of such a decision is, first of all, that the defendant cannot be pardoned, as he could have been if sentenced only according to nizaml principles. Second, if any heirs appear and demand lex talionis (kisas), he can be immediately executed. Should the heirs forgive the murderer or demand blood money (diyet), contrarily, the government can still keep this particular threat under wraps, since the sentence is a secular one. The state, in other words, has used ?er 'i ideology as a means of ensuring an execution - and the continuing execution - of the sentence, and nizami ideology as a means of retaining some jurisdiction over a treason case. We see here, in other words, a situation in which the secular and the religious authorities work together to undercut the individual rights of both the accused and the heirs to the murder victim. There is no fight over jurisdiction here, instead there is the beginning of a totalization of the legal system. Indeed, this use of both philosophies does not in any way mean that seriat was grossly misused. In a similar case just a few months later, for example, in which an individual's sentence is under dispute, a point is made to keep the Seyhiilislam informed and effective within the case. The religious establishment is therefore always on hand to administer those parts of a case "relatedto murder and to common law in the context of ?eriat."35 Again, the two hierarchies interact above all to protect their mutual interests. 34. iradeler MV 188, 8 L 1256. "bermiikteza-yl ?eriat..." 35. iradeler- MV 299, 11 S 1257. MV 299, 11 S 1257. "Meclis-i Vila'ya celb ile bi'l-istintakifadat-i vakialarizabt olunarak madde-i katl ve hukuka dair mevaddber-nehc-i er'i riiyetolunmakizere huzur-ifetvapenahide miimaileyh Yahya miimaileyh Aga ile merkumOsmanve eghas-imerkumebi-t-terafu Yahya muarazadan Aga ikame-i beyyine ile isbat-i miiddeayamuktedirolamamasiyla haklarinda dahi bir gfinahiikm-i?er'ilahik men' ilami verilmigve merkumlarin merkumlarin hin-i istintakta vaki'olan ifadeleri olamamlioldugundan izerine ica-

161

Ruth A. MILLER

Two apostasy cases from 1841 and 1843 lent anecdotal examples of an early merging ciples during this period. The first appears theft, brigandage, and treason cases tried in

can also be analyzed as excelof secular and religious prinamong a number of murder, the Filibe area. 36 It notes that

bat-i kanuniye ve nizamiyenin icrasi hususuna dair Meclis-i Ahkam-i Adliye'den kaleme alinan bir kit'a mazbata mah-i Safer'iil hayr'in sekizinci garganba giinu Meclis-i Umumi'de led'il-kira'a merkum muytabl Halil ber-mucib-i irade-i seniye be? sene muddet igin kiirege vaz' olunmug oldugundan merkumun mUddet-i mezkure tekmiline kadar kiirekde ibka[si]." "[They were] summoned to the Meclis-i Valawhere they were interrogated and their statements were recorded. Then the case [was moved to the offices of the] Seyhiilislam, who was present at the trial to see those parts of it which related to murder and common law in the context of seriat.The aforementioned Yahya Aga and Osman, and the other people mentioned above appealed mutually to the judge. Yahya Aga could not exhibit proof to verify his claim. Thus a verdict of interdiction of dispute was pronounced and a report was prepared by the Council of Judicial Ordinances, which discussed the legal measures to be applied in this case after taking into consideration the testimonies of the aforementioned people. This report was read in the general council on Wednesday, the eighth day of the month of Safer. [In conclusion], it was decided that since the hair rope maker Halil had been sentenced to hard labor with exile for a period of five years, he should continue serving this sentence until the end of the aforementioned period." 36. iradeler - MV 294, 7 S 1257. "Ve bir kit'asinda dahi Bazarcik Kazasi ahalisinden Yovan nam zimmi mukaddema haydudluk t6hmetiyle tutuldukta kabul-i islam etmig ise de bu defa miirted olmug ve mersum dahi Dersaadet'e g6nderilmig oldugu beyanlyla iktizasini istizan ve canib-i fetvahaneden dahi merkumun uiibhesi var ise ke?f olunarak iizerine islam arz olundukta kabulden imtina ile irtidadina israr ederse ?er'an katli lazim gelecegi zahr-i ilama tahrir ve beyan olunmu? olmakla bu surette merkumun huzur-i hazret-i fetvapenahide istintaklyla utibhe ise var keef ii hall olunarak ber-mikteza-yl ?er'-i ?erif merkuma islam arz olunup onun iizerine ne merkezde bulunur ise iktiza-yl ?er'isini ilam eylemek iizere bu hususun ba-buyuruldu-i sami istanbul Kadisi Faziletlu Efendi Hazretleri'ne havalesi icabindan oldugu." Another document states that a non-Muslim named Yovan from the district of Bazarcik had converted to Islam upon being arrested on the charge of banditry. He then, however, apostatized and was sent to Istanbul. The document requests that the necessary measures be taken and states that if the office of the Seyhiilislam has doubts about this person, the necessary investigation should be conducted and he should be interrogated. A marginal note is written on the back of the judicial decree stating that if he refuses to acknowledge that he was a Muslim and insists upon his apostasy, he should be executed. Thus the aforementioned person should be interrogated at the office of the Seyhiilislam and all doubts should be removed. During this process, he should be asked if he is a

162

Apostatesand Bandits

a defendant, upon being arrested for banditry, converted to Islam, later apostatized, and therefore, according to the requirements of ~eriat, ought to be examined and interrogated by the office of the Seyhiilislam. If he persists in his apostasy, the document continues, he ought to be executed. In any case, it concludes, both the Grand Vezir'sOffice and the Seyhiilislam must see the response before it is forwarded to the Istanbul Kadi, so that both might have a say. Clearly, apostasy trumps banditry when it comes to jurisdiction. At the same time, however, both temporal and divine legal functionaries remain involved in the case, given that both the Grand Vezir'sOffice and the Seyhiilislam are to be kept informed. More interesting, and perhaps more to the point, a case from 1843"7 concerns a defendant accused of blaspheming and acting against teriat, 38 who, after having done so, is summoned to the Manastir council and asked to retract his statements. He does not, and is therefore put into prison awaiting a response from Istanbul. The office of the Seyhiilislam subsequently issues a declaration stating that death siyasetenis legitimate Muslim, as requiredby ?eriat, and his responseshould be forwardedto His Office for a judicialdecree. Honor,the Kadiof Istanbul,by the GrandVezir's 37. Iradeler MV 915, 7 S 1259. "Prlepe kazasi nam pahs sakinlerinden Feyzullah ve el-iyazubillahta'ali-ikiifriimii'eddibir takimkelimattefevviihiine hilaf-i er'ibtidaretmekteoldu_undankendisiManastir'a ile celb i ?erifrafiziyne harekata her ne kadarkegf-i ?iibheedecekve itminan-ikalb hasil olacaksuretlenesayih-i lazimaicraolunmu? de itikad-ibatilindanbir vechilerUicu' ise etmemeklezuhuru irade-iseniyeyekadarmerkummahbeseilka.""AcertainFeyzullah, inhabian tant of the sub-province Prlepedared,Heavensforefend,to utter some blasof summophemouswords and hereticalactionsagainstPeriat.He was, therefore, ned to Manastir giventhe necessary and adviceto providetranquility heartand of to removedoubts. But he did not retract all his superstitious at beliefsand therefore he was put into prison until the issuanceof an imperialdecree."siyaseten canib-ifetvahaneden ilamatahrir inbaklllnml?...""It katlimegru ve zahr-1 idfitiu is writtenand communicated the judicialdecreeissuedby the fetvahanethat in
his punishment by death (siyasetenkath) is legitimate..."

"Meclis-iUmumi'dekira'atolunan bir kit'amazbatada istizanve i?'arvermeyip mazbata icrasimeclis-iumumidedahi bittezekkiir menzur-uili iktiza-yl?er'isinin "Amemorandum that has been readat the generalcouncil buyurulmak irin..." does not requestan authorization makeany communication the applicaand for tion of the necessary er measures. 'iThis memorandum been discussed the at has grandcouncil in orderto submit it to the Sultan." 38. It is not absolutely clearin whatway the defendantblasphemed, the fact but that his crimeis referred as rafiziyane to impliesthat he may be a memberof the
Bektati dervish order.

163

RuthA. MILLER

drawing upon the temporal power of the Sultan (the siyas1authority) to support its case. The general council chooses not to request an authorization for the execution, but at the same time explicitly makes no comment about the requirements of yeriat. The eventual fate of the defendant is never made clear.The fact that the Seyhiilislam would even consider drawing the secular political authority into a case that ought to have been purely a religious one, however, is striking. Both of these cases indeed offer clear evidence of the changes occurring in the Ottoman legal system - changes in which the jurisdictions of the temporal and the divine systems are beginning to overlap. In the second, the Seyhiilislam calls for an execution siyasetenfor a blasphemer, whereas in the first, a bandit who has apostatized is executed according to the requirements of ?eriat. Apostasy is no longer a crime simply against divine law, but an important element in both systems. Banditry falls into multiple categories as well. Once again, what we see here, therefore, is a totalization of the legal system, in which the most important and most imminent threat is that to the state/religious hierarchy and authority criminal threats to individuals are of little or no importance. 1851-1858 Following the promulgation of the 1840 criminal code, and ten years of its application, a reinterpretation and expansion of this law was undertaken in 1851. Although this new code was undoubtedly an evolution in Tanzimat era thinking and in the creation of a nizaml legal philosophy, it also incorporated far more ?er 'i concepts into the body of its text than its 1840 predecessor had. 3 When looking at the practical application of the code, especially as evidenced by the cases tried, the same pattern holds. The procedure for bringing cases, it is true, remained more or less the same in this period. The one exception of note was the spread of the local council phenomenon and the circumscribing of the role of the governor somewhat. As for the numerical distribution of legitimization, proof, and sentencing, however, there is an undeniable shift toward a predominance of ?er ' influence. Referring back to the table, out of a total of fifteen documents, including twenty cases involving murder, wounding, and corruption, 62% 40

39. Ahmed Liitfi, the 1840 and 1851 Codes beginningon pp. 128 and 150 respectively. 40. Eightout of thirteen.

164

and Apostates Bandits

contain ?er 'iwrits, and 39% 41do not. Further,35% 42 are legitimized upon Seriat, 12% 43upon the code, 41% 4"upon both, and 12%45upon neither. As for the method of proof, it is difficult to establish a meaningful number in this subsection, as only four of the cases make specific referenceto proof of any kind. For the sake of uniformity, however, of these four, two reference ?eriat and two the code. Finally,when looking at the sentences passed, 57% 46 are religious, 21% 47are secular,and 21% 48are siyasi. It can be noted right away that, with respect to legitimization, ?er ' and nizami concepts continued to interact. Over the first chronological period, 35% of the cases referenced both, and over the second period, this number rose to 41%. At the same time, however, whereas before, the remaining cases looked to nizami concepts slightly more often than to ?er '- concepts (30% nizami to 24% ?er 'i), in the later period, the opposite occurred (12% nizami and 35% yer i). The higher number of ?er 't writs issued in support of these cases (62% of the cases in 1851-1858 relative to 59% before) also indicates that ?eriat played a bit more of a role in criminal law over this period than it had earlier. Finally, in the years 1840-1850, secular sentences predominated among the three possibilities - 45% v. 39% ?er'i v. 16% siyasi- whereas in the years 1851-1859, religious sentences predominated - 57% v. 21% secular and 21% siyasi. The anecdotal evidence once again bears up these conclusions. In three corruption cases from 1852, 1853, and 1857, involving both naibs (religious judges) and local miidiirs (functionaries),4' for example, the legal process proceeds as follows: the functionaries are first brought to the local council on corruption charges as outlined in the 1851 criminal code. Reports are then sent to Istanbul, and reviewed by the central council. Following this initial review, the situation of the naibs is also examined by the office of the Seyhiilislam. Finally, the central council decides upon the punishment (banishment) for the miidiirs, in keeping with the criminal code. Simultaneously, the office of the Seyhiilislam decides upon punish41. Fiveout of thirteen. 42. Six out of seventeen. 43. Two out of seventeen. 44. Sevenout of seventeen. 45. Two out of seventeen. 46. Eightout of fourteen. 47. Threeout of fourteen. 48. Threeout of fourteen. 49. Iradeler MV 16982, 9 1274;MV 11568, 18 S 1270;MV 11154, 24 Za 1269.

165

Ruth MILLER A.

ment (less severe banishment or dismissal) for the naibs, in keeping with the spirit of the criminal code. What is therefore occurring in this later decade is again a blending of nizami and ?er'i jurisdiction. The servants of ?eriat are, especially upon first instance, subordinate to nizami administrative structures, but they are also still tied quite tightly to the traditional institutional framework. The nizami law is by no means insignificant in the realm of ?eriat, but neither does it in any way trump ?er 'I authority. The two instead work together, mutually supporting an expanding central authority. Two murder cases from this period that provoked the issue of general statements on the part of the legal authorities are evidence of a similar pattern. In a case from 1856, for instance, the question of jurisdiction and i and nizami courts became a pressing one, and so a decree the place of fer clarifying the issue at least for the province of Igkodrawas issued. In general, it stipulated that for all blood cases - murder and wounding - the heirs or the police would first appear in a court of arbitration (sulh court), so that it could be established without question that ?er 'i jurisdiction did not override nizami jurisdiction. If it did, then the question of diyet (for wounding there was no other option) or kisas would be decided in the arbitration court. 50If it did not, only then would the case proceed to nizami jurisdiction. The self-conscious state interest in facilitating a nizami lawI/eriat integration goes almost without saying. In a similar manner, a case from 1851 5' describes a situation in which a governor is investigated for issuing lashes to people convicted of various 50. Iradeler MV 16180, GurreR 1273. "igkodra sancagidahilindekatlve cerh maddesinden kan davasiolanlarumumen ve dolayl bilenlerinde baritlrilacaktir her bir katl igin katil tarafindan maktulunvarsina ikibin gurugdiyet verilecek misilliicerh igin dahi mecriihiincerhineg6re tensipolunacakber mebligmecruhe ita olunarakhuzur-u ger'ideibra olunacaklardir o babda bir kita cihet-i ve kazalardahilinde mevciid olan bu ?er'iyyedahi tanzim ve tahrir kilinacaktir. Uzere olan [berat] tarafeyn misilliikandavasibiladamuharrer vechilebarntlrilmak evveligkodra'ya ile icrayiicab-ihal itibarolunacaktir. maslaha-yl celb umuigbu kafi-i katl ve cenabat-isaireyye ?er'anve kanunen miyeden sonra vukubulacak icra riiyet olunduktansonra tertip edecek ceza her neyse hiikumet-imarifetiyle cihetlehud be hud olmaksiraslyla ve cerhetmeye hususunu olunacagi 61diirmeye cerairedenlerkatilve carihnazaretiyle bakilacaktir. eshabkit'asinin eksermahallerinde 51. Iradeler MV 8340, 27 B 1268. "Rumeli darbile miicazatolunduklari OskiipvalisidevletluTosunPagahazve I tohmetin retleridahi?unubunu darbetmekteolduguifadesiyle SilistreValisidevletlupaga beraber tarafindan hazretleri varid olan tahriratMeclis-i Val 'nin mazbatasiyla

166

and Apostates Bandits

crimes committed under his authority. The document goes on to say that this sort of punishment is "contraryto the Tanzimat," and that "from now on, accused individuals - aside from those to be punished by the application of ?er ' punishment - should not be beaten, but sentenced to hard labor and imprisonment according to the legal code."52 In other words, if anyone's jurisdiction is being curtailed over this period it is that of the local authority. Nizami punishments are fine, yer 'i punishments are fine, combinations thereof encouraged, but arbitrarypunishment on the part of the local governor is absolutely not fine, and must be curtailed. As the incorporation of fer 'i procedure occurred, it seems, a simultaneous application of centralizing measures was also being undertaken. It might also be noted here that as the religious and secular legal systems worked together to support the new system, this system was in no way becoming less violent or more liberal - all that was occurring was a strengthening of the central authority and the co-opting of traditional institutions as its pillars. 1859-1876 The period 1859-1876 begins with the promulgation of a code inspired by the Napoleonic French criminal law. With this code, a movement away from the ?eriat predominance represented by the 1851 code and toward a more completely interactive nizamil/er ' legal philosophy occurred. As one might expect, a selection of cases from the 1859-1876 period consequently reveals an interest on the part of Ottoman legal functionaries in putting into practice this newly formulated philosophy. There exists in these cases, for example, many more self-conscious references to specific articles of the new code, as well as to Tanzimat philosophies such as the preservation of "irz and namus"(honor - of two kinds). Of greater manzur-i buyurulmak ali olduguvechiiqiintakdimkilindi.Mealindenmiisteban le badezinhad-i ?er'ilazimgelen eshab-it6hmettenma'ada darbettirilmeyip 6yle ber-mucib-ikanun-iceza prangave habs ile miicazatolunmalari...""Adispatch sent by His Excellencythe governorof Silistrastating that in many parts of Rumeliaaccusedindividuals havebeen punishedby beatings,and that the governor of (Iskiip,His Excellency TosunPapa,has been beatingvariousindividuals is submittedalong with a Meclis-iVaIl memorandum this subject].Given the [on contents of this memorandum, from now on, accusedindividuals aside from those to be punishedby the application er'i punishment shouldnot be beaof to ten, but sentencedto hardlaborand imprisonment according the legalcode." 52. "Tanzimat-i "hadd-i eriatlazimgelen eshab-it6hmethayriyenin mugayiri," ten ma'adasinin darbettirilmeyipber mucib-i kanun-iceza prangave habis 6yle ile miicazatolunmalari..."

167

Ruth MILLER A.
we interest,however, also see a huge leap in the numberof casesthat rely the combinedsupportof both Tanzimatideasand the more tradiupon tional 1er?'philosophy.Granted,the procedurefor decidingthese cases gets virtuallyno attention in the text of these documents, but when 15 comparingthe numericaldistributionof legitimization, proof, and sentencing to the distributionseen in the earlierperiods,the patternthat developsis quite striking. once Referring againto the abovetable,withina sampleof fifteendocufor casesof murder, ments, containingtwenty-five theft, and corruption, one findsthat47% 4contain Ser writsand 53%5 do not. As for instance, 'i 16% are of alone, 19%57 by legitimization, 56areby the requirements seriat the requirements the code alone,62%58arelegitimized of upon both, and 4% 59are legitimizedupon neither.Moreover, when one looks at the method of proof, 29%60 are triedby the rulesof seriat,29%6' are tried to of of according the precepts the code, and 41%62 followa combination the two. Finally,as for the sentencespassed,20%63 are Ser' sentences, 76%6 aresentences fromthe code, and 4%'6 aresiyasi sentences. In otherwords,yes, we can see herea definitedropin the use of seriat alone in determining legitimizingcases.But, in the areasof legitimiand zation and proof, this drop does not necessarily coincidewith a simultaneous rise in the use of nizamilegitimization proof. In fact, a comand parisonof the 1859-1876 data with the 1840-1850 data in particular yields a quite differentpicture.Whereasin the earlierperiod, the code alonewas used to legitimizecases30% of the time, in the laterperiodit was usedonly 19%of the time. In addition,althoughthe use of the code on its own in provingcasesrosefrom 16%to 29% overthe sameperiod, the use of ?eriat alone in provingcasesalso occurred exactly29% of the on 53. Asit didearlier whenthenizami was system firstbeinginstitutionalized. out 54. Seven of fifteen. out 55. Eight of fifteen. out 56. Four of twenty-six. 57. Fiveoutof twenty-six. out 58. Sixteen of twenty-six. 59. Oneout of twenty-six. 60. Fiveoutof seventeen. 61. Fiveoutof seventeen. 62. Seven of seventeen. out 63. Fiveoutof twenty-five. out 64. Nineteen of twenty-five. 65. Oneoutof twenty-five. 168

and Apostates Bandits

time. The area, therefore, in which the greatest numerical rise regarding the legitimization and proof of cases occurred is the "combined" subsection. Over time, the use of eriat and the code together to legitimize cases rose from 35% to 41% to 62%, indicating a clear tendency toward a merging of practice in this area. A similar rise in the "combined" method of proof also occurred - from 16% to 41%. The one area, in fact, where the nizami elements of the code alone began to hold sway was in the sentencing of cases. With a change over time from 45% to 21% to 76%, we can definitely conclude that following the ten year long readjustment toward seriat in the years 1851-1858, the nizami system did in fact gain predominance over the ?er 'i system in criminal sentencing. 66 Given the fact that these sentences were so completely reliant upon the merged yer'/Inizami system for legitimization, proof, and procedure, however, it is difficult to argue that these numbers alone can account for some sort of overall triumph of nizami practice. The anecdotal evidence in this final period bears up the above findings. A document from the year 1873, 67 for example, describes a situa66. Althoughit ought to be noted that the Per sentencingdid not actuallydrop 'i to any huge degreebetween1840 and 1876: from 39% to 20%. ekserihu_unetve 67. iradeler MM 2028, 19 R 1290. "Prlepe vilayetiahalisinin cehaletleri iktizasinca min-el-kadimbirbirinikatl ve cerh etmek ve hetk-i irz ve
namus eylemek gibi cinayatl i'tiyat ederek ve bu fi'illerin ilca'at ve icbaratlyla

ahz-i intikami&inkan davasina yekdigerlerinden ?u diigerek da'iye-ivahiyemiyakan hallerden oralarca barintlrmak ve egerqiigbu miinb'aisdavalar ismiyleittihaz olunanbir kaide-isulhiyedairesinde tesviyeedilmekteise de bu kaidezatengayrbir kesaninara-ylhodseranesine ve 1megru' silver-iicraiyesi takimsebiikmagzan
mevdu' olmaslyla onun devami efal-i cinaiye miitecasirlerinin ahkam-i adile-i ger'iye ve kanuniyeden istisnasini mijeddi ve tekerriir-i vuku'at-i muzirraya badi nelerinde miiteselsil ve miitevaris ve enva' vuku'at-i feci'aya bais olmakta olduguna

olaraksinuf-i teba'aarasindamuhasematve mukatelatinhudus ve temadisiise min-kiill'il-viicuhtecviz olunamaycaglnamebni buna bir nihayet verilmesi vilayet-i mezbure valisi devletlu paga hazretlerineyazilmli idi. 01 babdaki bahislemebhus-ianhaolan ve mahallince Lek?Dukagjininamlyla tegebbiisattan
usul-i mahsusa hiikmiinde tutulan kaide-i sulhiye ba'dezin kiilliyen men' ve ilga olunarak katl ve cerh davalarinin hiikm-i er' ve kanuna tatbikan riiyeti hakkinda

bir isdarve tesyarivali-i miigarileyh ferman-1 mehabet-nizan ?edid'iil-miifad klut'a of tarafindan edilmig." "From of ig'ar daysof old, the majority the inhabitants the of Prlepehavebeen accustomed committingsuch crimesas the violato province tion of honor and rape, becauseof their roughnessand ignorance.These acts
compel and oblige individuals to undertake blood feuds with one another for the sake of revenge, and this silly motive has been causing all sorts of successive and

169

RuthA. MILLER

tion in which the Albanian population of Prlepe is persisting in its adherence to a local form of judgment and sentencing. The document notes that this sort of local jurisdiction is contrary to both yeriat and the code, and that the local authorities must stop it. In the end, an imperial decree is requested - a decree which will explicitly carry the force of law and underline the overriding jurisdiction of both the divine and the temporal [central] legal systems in this unstable area. Once more, therefore, we see a situation in which ?eriat and secular law are of equal rhetorical and political importance - each of them supports the other, and each is also supported by and supports the central authority. It is likewise in this last period that the Ottoman government begins a systematization of the law on a larger scale. By the 1870s, for example, and nizageneric forms to record the testimony of witnesses in both ?er '" mi cases came into use, and cross examinations in trials had to follow a specific, authorized procedure. By producing these forms, however, it cannot be argued that the government was attempting to marginalize ?er 'authority and encourage the growth of nizami authority in its place. Quite the contrary: by including ver cases within this systematization of 'i the law, the place of fer 'i principles within the new modernizing legal framework was if anything reassured. Finally, although it is not hugely important, it is somewhat significant that with cases in this period one also begins to see the emergence of a new formula "by a nizami investigation and by a er ' trial,"6 appearing at the end of most serious murder cases, further evidence of the merging of the two practices. ongoing tragicincidentsamong thesepeople.Such caseshavebeen settledaccorThis rule there called blood reconciliation. ding to a customarypeace-making is rule,however, essentially unlawful,and its executionis left in the handsof a few will obstinateand silly people.In addition,the continuationof this practice allow of those who ventureto commit criminalacts to escapefrom the application the and continuationof just judgmentsof the ?eriatand law.Since the development mutual hostilitiesbetweensubjectsand the killingscannot be permitted,a dispatch has been sent to the paga,the governorof the aforementioned province, The aforementioned has comthat paga requesting he put an end to this practice. the municateda messagedetailinghis effortstowardthis end and has requested issuanceof an awe-inspiring decreewith strong languageand carrying imperial abolishand annul this practice,locally weight as law,which might permanently known as [kanunii] Lek?Dukagjini,and place murderand assaultcaseshenceforth underthe jurisdiction seriatand law." of 68. "Tahkikat/tedkikat-i . ve nizamiyye miirafa'a-yl ?er'iyye. ." cf for example,iradeler- DAA 577, and DAA 296.

170

and Apostates Bandits

1877-1908
No new criminal code was promulgated in 1876-77, but a new Constitution was, and with it, certain changes occurred in Ottoman criminal law as well. By 1877, for instance, the nizami court system had been established and set up as effectively as it was going to be throughout the Empire. As a result, the general procedure for coming to a conclusion in a case was set in place. Starting with the cases in 1877, therefore, attention begins to be paid once more to the sequence of courts and councils in which a case would be heard. In this later period, first of all, the principals of a case or the police would bring their issue either to a civil court of first instance or to a ger I'court. If the case was sent to a first instance court and turned out to be within ser'i jurisdiction, it was then sent to the local ser'i court. If not, it could be appealed to an appeals court or decided and sent to the central Council. From the Council, a case could either be confirmed and sent to the Justice Ministry, confirmed, sent to the office of the Seyhiilislam for a ?er 'Iconfirmation, and then sent to the Justice Ministry, or not confirmed and sent for appeal once again to the cassation court. If the case went originally to a local ?er 'i court, a report was sent straight to the office of the Seyhiilislam, confirmed by the Council, and then sent to the Justice Ministry. 6' The above sequence of events diverges quite radically from the sequence we noted above, common between 1840 and the 1850s. In the earlier period, although there was a great deal of ?er 'inizami interaction on the local level, with the councils and governors hearing both types of cases, at the higher level, things remained to a large extent separate. In this later period, the nizami and yer 'Ijurisdictions at the local level appear to have become slightly more separate than before. 70 At the higher level, however, different authorities interacted with far more frequency. The office of the Seyhiilislam, the Council, and the Justice Ministry, for example, had overlapping jurisdiction over many cases, and if the procedure described in the documents is any indication, they all worked toge69. See docs. AM: 1319-M-18/8; 1319-C-4/5; 1320-Ca-18/9; 1305-Ra-25; premier 1310-S-9/3; DAA:834, 825. And alsoBayraktar, 320: "suivant p. l'article du dit code [de 1858] ceux qui sont condemn&s les tribunauxde Nizamiye par doiventetrejugesensuiteparles tribunaux ?er'iye." the de "following firstarticle of the abovementioned [1858] code, those who werecondemnedby the nizami tribunals haveto be judgedafterward the ?er'itribunals." by 70. Althoughnot to a huge extent,giventhat the yer'tcourt and the firstinstance courtwereoften one and the sameentity.

171

Ruth MILLER A.

ther in seeing to it that the outcome of each serious case brought to their attention conformed to all three of their respective theoretical underpinnings - be they yer 'I, nizami, or both. Unfortunately, from the year 1878 onward, the presence of specific court cases listed in the irade archival catalogues dwindles quite rapidly. In the end, it appears that only the most major cases, or major exceptions to the norm were included among the other documents. Although it is possible, therefore, to describe in an impressionistic manner the sequence in which a case was heard, conducting a numerical analysis upon such a small pool would be unlikely to furnish meaningful results. The table earlier in this section consequently ends with the period 1859-1876 and does not attempt to examine later sets of cases.

APPOINTMENTS

of the area Perhaps mosttelling in whichthe incorporation ?er'iprein is administration becomes apparent the trends ceptsinto the nizami The committees. to courtsand to legalreform appointments criminal the individuals madeup thesecourts councils, waysin which who and to thesefunctionaries transferred appointed them,andin partiwere or all the cular reasons behind transfers appointments, demonstrate the and was thatas timepassed, administration the Ottoman the of legalsystem in more more composite nizaml ?er'" and a of and components becoming
support of a larger authoritarian system.

Ahkam-i 1868, the central council,the Meclis-i judicial Adliye, Vdld-yz and wascomposed its highest at levelnot onlyof nizami civilfunctiona' Thisdivision or and ries,butof both?er' judges civilfunctionaries. of lackthereof showsclearly extentto whicha separation the two the
systems was not in any way the goal behind Ottoman legal reform. Paris:Mechal et Billard,1902. p. 76, 71. SavvasPasha,Le tribunalmusulman. "Unecour,nomme ConseilSupremede justice(meclis-ivalai-iadliye [sic])comdes arrives plus hautesgradesde la hidrarchie juges aux poses: 10 de personnages civils du plus haut rang..." "a et jurisconsultes l'ordresacrd20 de dignitaires de court, called the SupremeCouncil of Justiceconsistedof: 1) people from the of of highestlevelsof the hierarchy judgesand jurisconsultants the sacredorder, of 2) of civil dignitaries the highestrank..."

Firstof all, priorto its divisioninto legislative judicialsectionsin and

172

and Apostates Bandits

Moreover, we ought to note that at their earliest stages, the first protonizami courts were provincial councils instituted by the 1864 (1281) law of vilayets - courts which were composed of a ser'i judge president and only then of a council of Muslim and non-Muslim functionaries and officials.72By so noting, we can conclude that separation as such, even at the beginning, had never been considered. But once again, by far the most important information on this issue comes from an analysis of the administrative appointments themselves. A basic examination of the proportion of ulema corps members to civil bureaucratic functionaries appointed to criminal court positions reveals a distinct lack of discrimination against the former. Indeed, the preference seems to have been for ulema to fill these positions. Given a sample of approximately 265 appointments and transfers contained within 100 documents covering the years 1861-1908, for example, we find that over the entire period, on average, 62% of the appointments to nizami criminal court positions went to ulema, 30% went to civil functionaries not attached to the ulema corps, and 8% went to non-Muslim judges. In general, as the table73 below indicates, these averages do not change all that drastically over time:
90

80.
70

/
17 508 2 87 _ Efend8 -

40.

40-

_,

--? /

---,-----

Bey '. Minon ty

0 . ---- --1861-2 1872

1875.6

1880

1882

1886 8

1894 6

19058

ottoman. de 72. A. Heidborn, Manuel de droitpublic et administratif l'empire Vienna:C.W. Stern,1908. p. 223. "...composesde jugedu ch'riat (naib)comme et presidentet d'assesseurs moitidmusulmans non-musulmans." par 73. This graphis composedof informationfound in the followingdocuments. Dahiliye: 1402, 1836, 32168, 39013, 41072, 43291, 40072, 40040, 40067, 40870, 40840, 45005, 45893, 45932, 45448, 45587, 46008, 46152, 46253, 46700, 47122, 46945, 47443, 4991, 47366, 48866, 50612, 50508, 60705, 63291, 64263, 64444, 64161, 63583, 63712, 64080, 64631, 64690, 64700, 66797, 66449, 66568, 65875, 65163, 65164, 67692, 67997, 67832, 68860, 69323, 68783, 68124, 68459, 68006, 69394, 69718, 71287, 71404, 69857, 69573, 69442, 72036, 81477, 85244, 84119, 82674, 83461, 84989, 86560, 173

A. Ruth MILLER

The above table does not follow a uniform timeline on the x-axis, but we can nonetheless see that aside from two dates - 1876 and 1882 - the percentage of ulema appointments to nizami criminal courts remained consistently higher over the forty-seven year period than the percentage of civil servant appointments. Indeed, aside from the six-year period between 1876 and 1882, the pattern of all three remained relatively calm, with a complete drop in non-Muslim appointments after 1898. Clearly, it seems, ulema appointments to nizami criminal courts were never fazed out, even at the very end of the Ottoman period. After dividing the 265 appointments into chronological sections 1859-1876, 1877-1890, and 1891-1909 - and analyzing the immediate backgrounds of the individuals appointed during these periods, an equally intriguing pattern emerges. In the earliest years, those appointed from completely outside of the legal system - that is, for example, from governorships, 74from the Finance Ministry, " or from the office of telegraphs and post, 76- made up a relatively large proportion of the total number of appointments: 38%. By the years 1877-1890, this number had dropped to 4%, and by the final period, 1891-1909, appointments from outside of the system constituted only 2% of the total. We can consequently speculate that during the earlier period, when the nizami system was first being articulated, an attempt was in fact made to create a legal hierarchy separate from what already existed, philosophically attached, perhaps, to the more temporal civil bureaucracy.As occurred earlier with the evolution of cases, however, it seems that with the evolution of administrative appointments as well, an overall tendency subsequently developed in the later years favoring an integrated legal system. This legal system, as one might expect, involved the use of internally trained functionaries, and was not to any large degree reliant upon the civil bureaucracyfor its administrative foundation. To bear out such a hypothesis, over the same time period the percentage of appointments from criminal law positions to other criminal law 98813, 99860, 100466, 100367, 95480, 95149, 99204; MV: 16306, 7948, 9397, 25790; MM: 1557, 1817, 1819, 1943;AM: 1312-C-11/310, 1313-S-5/5, 1313-M-18/10, 1313-C-23/2, 1314-$-12/8, 1314-?-12/11, 1316-N-29/7, 1316-R-20/11, 1316-Za-9/8, 1323-S-24/4, 1325-R-5/17, 1325-B-1321. 74. For examplein iradeler,Dahiliye 45932, 20 C 1289 or iradeler,Meclis-i Mahsus1819, 2 S 1872. 75. Forexamplein iradeler,Dahiliye40840 26 ? 1285. 76. Forexamplein Iradeler, Dahiliye46008 9 Za 1289.

174

and Apostates Bandits

positions77went from 38% to 62% to 81% of the total. At the same time, the percentage of appointments from civil or commercial law positions to criminal law positions underwent a less steady change, from 24% to 33% to 17% of the total. As the specialization described above was occurring, therefore, it seems that a similar move toward specialization within the law was simultaneously undertaken. By the final period, someone already versed in criminal law was far more likely to be appointed to a criminal law position than someone whose experience was grounded primarily in the civil or commercial branches of the system. At the same time, bearing in mind that on average 62% of the criminal law appointments were members of the ulema corps, this tendency does not preclude the repeated appointment of ?er 'I specialists to these positions. The reasoning advanced in the documents to justify appointments or transfers also appears to point to an interest in a balanced nizamilyer 'i system with a specialized focus. With each appointment, one of a variety of justifications is given for the placement and transfer of the individual to a certain position. These justifications include, for example, the creation of a new opening or the resignation, death, dismissal, or transfer of the previous office holder. Given the variety of reasons advanced for the appointments, a control can be used to test the validity of a numerical analysis of the information contained in the documents. We would not expect a drastic change to occur over time in the proportion of deaths or even perhaps resignations to the other openings. Indeed, if the numbers were to change dramatically over the three periods, they would cast doubt on the validity of all of the other information available. As it is, however, the number of deaths relative to the total number of openings remains at a constant 7%, 6%, and 6% over the three periods, and the number of resignations remains equally constant at 2%, 4%, and 4%. We can be relatively certain, therefore, that the other numbers and the patterns to which they point are to some extent meaningful. The most interesting change over time occurs in the relationship between those appointments which would take over positions vacated by simple transfersand those appointments which would take over positions vacated by dismissals - the latter often accompanied by a prosecution of the former official. During the earliest period, 1859-1876, 56% of the appointments occurred after simple transfers, whereas 5% occurred as a result of the previous functionary's dismissal. By the years 1877-1890, in which had no background the civil and 77. That is, criminallawappointments commercial aspectsof the nizamisystem. 175

Ruth MILLER A.

this proportion had shifted to 44% as a result of simple transfer and 26% because of dismissal. By the third period, the numbers were equal, and 37% of new functionaries filled positions vacated by transfers, and another 37% filled positions vacated after a dismissal and/or prosecution. What does this gradual rise in dismissals mean? As has been the case up until now, it would seem that as the ?er 'i system became more and more integrated into the nizami system, there was a simultaneous exertion of a stricter state guidance over the administration of the whole. In other words, the legal system which was developing was one in which the state maintained complete control over the administration and the activities of the functionaries, but in which these functionaries and the philosophies to which they adhered operated in much the same way as they had before. Indeed, it is probably not an accident that of the eighteen positions opened up by dismissals in the final period, all but two were taken over by members of the ulema corps. Anecdotally, we can see the same patterns occurring. A document from 1868, for example, attempts explicitly to fill clerical positions within the Council of Judicial Ordinances with an equal number of ulema functionaries and secretariesfrom the civil bureaucracy. A year later, in 1869, 78 the composition of the central nizami courts in the provinces of Selanik and Sivas is discussed "forreasons of reform." In the end it is decided that, among other changes, the High Court and the Council of Cassation will be attached to one another, and that the former will include a president appointed by the state as well as locally appointed members who know the nizami laws and regulations. In addition, this high court "will hear murder cases that took place in the central sancak of a province as a first instance court and, along with the justice councils and er 'Icourts, it will see, as an appeals court, upon request, [criminal cases] that took place in the capital of the province and in the districts attached to it." 79The above 78. Iradeler, Dahiliye40040 12 M 1285. "Divan-iAhkam-iAdliye'ninmazbataon larinisuret-imatlubede kalemealmakigiin tarik-iilmiyyeve kalemiyyeden iki nefermiisevvidintihapve tayin olunmak..." "in orderto pen the reportsof the Divan-iAhkam-z from the ulemaand Adliyein the desiredmanner,12 secretaries clericalstaffwill be chosenand appointed..." kebire-imerkeziyyenin 79. "Mahkeme-i tegkilicihetledivan-itemyiz-ivilayetbittabi ona mUlhak munzamolacaktir" "makeme-i kebire-imerkeziyye and merve kez-i vilayetolan sancakdahilindevuku'agelen cinayetdavalarini bidayetenve kabilolarak mecalis-ideavisinde deavi-i er'iyeden ve gerekmiilhakkazalar bagka istida iizerineistinafenriiyet eder." i istinafolmak iizerehiikm olunan davalari

176

and Apostates Bandits

decision would not be of great interest to this argument were it not for the fact that the central High Court is seen as only one of three entities and the only one without a direct tie to the office of the Seyhiilislam having jurisdiction over criminal cases. Moreover, the presidencies of the central provincial cassation councils, especially as of 1873, were all held by ?er ' naibs, 80 thus intermingling the two systems even further. To confirm that this particular document was not an exception to the rule, a second document from 1873 reinforces the need for members of the ulema corps to fill these cassation council positions, noting that as long as the presidencies of the cassation councils are in force, they will be appointed to members of the ulema hierarchy.81 Throughout later years, the same tendencies occur. In 1881, for example, membership to the high central cassation court is discussed. In this situation once again, the preferredprofile for membership is an individual who has been involved in both nizami and yer 'i activities in the past - that is, an individual who has been a member of the ?er ' investigation council, the Mecelle Cemiyeti (Mecelle Committee) and also a teacher at the civil Law School. 12 In a similar manner, as noted earlier, in will of of "uponthe formation the centralhigh court,the divan-itemyiz a province be attachedand appendedto it." and "The centralhigh courtwill hear naturally murdercasesthat took placein the centralsancakof a province a firstinstance as court and in additionto the justicecouncilsand ?er'tcourts, it will hear,as an cases]that took place in the capitalof the appealscourt, upon request,[criminal and in the districts attached it."iradeler, to province Dahiliye45362, 17 N 1289. 80. Iradeler, Meclis-iMahsus1943 5 S 1290, "... fakatriyasetlerin merkeznaiblerine tefviziyleonlarin yerine dahi birer bab naibi tayini tertibat... divan-i vezaifiise yalnizvilayetcemehakim-i sairede temyizlerin g6riilendeavi-ihukukiye ve cinaiyeninistinafenveya tedkikenriiyetisuretine... divan riyasetine nakl edilerekyerlerine digernaib tayin kilinmakiizere... " "withthe handingoverof the presidenciesto the central naibs other bab naibs [will be] appointedin their of place... the only assignment the divan-itemyizis to hearthe commonlaw and criminalcaseswhich wereheardat other provincial courtsas an appealscourt or [to function]as an investigative [council]... those local naibswhose competency is provenby experience documentedwill be transferred the presidency of and to the divanand other naibswill be appointedto their [former] positions." 81. iradeler, divan-itemyizriyasetleriDahiliye46700 5 Ca 1290, "vilayetlerdeki nin tebeddiiliivukubuldukga tevtarik-iilmiyyemensubatindan ve erbabina ehl of cihi... " "whenpresidencies the provincialcassationcouncilsbecomevacant, to they will be conferred membersof the ulemacorps... " 82. iradeler, Dahiliye67692 9 M 1299, "... meclis-itedkikat-i er'iyeile meclis-i ve ve cemiyetiazasindan Mekteb-iHukukmuallimlerinden malumat ehliyeti olup

177

RuthA. MILLER

1887, the central cassation court president and Mecelle commissioner, Ahmet Hilmi Efendi fell ill, and the open position went not to any civil functionary of the nizami system, but to Omer Hilmi Efendi, a former investigator at the Imperial Foundations Ministry - a position which could not be more central to ?er 'i philosophy. 83What we can observe with this anecdotal evidence, therefore, is exactly what we might expect from the numerical analysis above: as has been the case up until now, there is no marginalization or destruction of the supposedly more traditional ?er i system, merely an incorporation of its administration into the changing nizami whole.

CONCLUSION

Thisincorporation thereligious of establishment thesecular into frahad which wouldbecome clear mework, however, implications fully only in the20thcentury. AhmetHilmiEfendi, OmerHilmiEfendi, their and in compatriots the officeof the Seyhiilislam not haveseen their may influence decrease indeedtheymayhavebecome than morepowerful was in theyhadbeenbefore but neither the legalenvironment which
they were operating in the nineteenth century a continuation of the classical environment of years past. By the time the Ottoman Empire dissolved, the stage had instead been set for a new and totalizing criminal law system in Turkey, represented by Mussolini's criminal code. 84 And in this new system, religious and secular, conservative and reforming, traditional and modern would all act as pillars for an overriding state authority unlike any which had come before. Ruth A. MILLER of Massachusetts, Boston) (University

olan Efendi'nin mezkure miicerreb Abdiilsettar mahkeme-i azaligna tayiniyle..." 83. iradeler,Dahiliye 85244 18 L 1305, "...yerine iktidarve ehliyeti cihetle MecelleCemiyetiazasindan sabikanfetvaemini ve halaEvkaf-1 Hiimayunmiifettigi faziletlu Omer Hilmi Efendi Hazretlerinintayini..." See also iradeler, Dahiliye84989 9 R 1305, which discussesthe sameappointment. 84. SeeTurkey, CodePMnal. J.A. Constantinople: Rizzo, 1939. Italy,PenalCodeof the Kingdom Italy,as Approved RoyalDecreeof October 1930. London: 29, of by HM Stationery Office, 1931. 178