History Compass 6 (2008): 10.1111/j.1478-0542.2008.00563.

Ottoman Judicial Change in the Age of

Modernity: A Reappraisal
Avi Rubin*
Ben-Gurion University

Abstract

Legal reform was a key element in the passage of the Ottoman empire to modernity
during the long nineteenth century. This article discusses the modern historiography
of Ottoman judicial change while taking issue with the notions of secularization
and westernization, which are omnipresent in the conventional legal history of
the nineteenth century. An alternative conceptualization is called for, one that is
free from the dichotomous and homogenizing binarity of religious/secular, thus
allowing more nuanced representations of sociolegal change in general.

Introduction
The notion of legal reform is at the background of almost the entire
scholarship on the nineteenth century.1 Haunted by a longstanding sense
of crisis following trends of decentralization during the seventeenth and
eighteenth centuries, the Ottoman ruling elite was engaged in a centurylong project of administrative reform that was meant to augment its
authority and cope with political and economic crises inside and outside
the Ottoman domains. The very concept of reform was a dominant
element in Ottoman political imagination before the nineteenth century,
often embedded in a rhetoric that revered the old ways. Yet, in the
nineteenth century reform (slah) emerged as a key idiom, facilitating both
novel and not-so-novel perceptions of governing. Codification and the
creation of the new Nizamiye courts stand out in the historiography of
the nineteenth century as the accustomed signifiers of legal reform.2
Legal change has been represented in scholarship mainly through the
prisms of Secularization, Westernization, and top-down reform,
which were evident by the shrinking jurisdiction of the eriat courts in
favor of the new, so-called westernized or secular Nizamiye court system
and the equivalent growing impact of French positive law on the Ottoman
one. This author argues that the notion of dichotomous secular (read
modern) and religious (read traditional) judicial spaces have dominated
the historiography of Ottoman reforming law. Specifically, the notion of
discontinuity with regard to pre-modern judicial praxis and an alleged
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2 Ottoman Judicial Change in the Age of Modernity

competition between secular-modern and religious-traditional cosmologies has been ubiquitous the scholarship on late Ottoman law. Few recent
studies cast doubt on the validity of this representational mode and its
ability to capture the intricacies of late Ottoman sociolegal change. In the
light of these studies, I make the case for an alternative perspective to
judicial change during Ottoman passage to modernity, one that emphasizes the consciously syncretic nature of Ottoman law and its plurality, and
gives ample expression to historical continuity.
Before offering some specific conceptual insights into the state of the
art, a general portrayal of Ottoman legal reform is in order. The story of
the legal reform in general is embedded in The Tanzimat, the grand
project of legislation that was aimed at centralizing the administration and
modernizing the state, and was largely inspired by European, chiefly
French ideas and administrative practices. The Imperial Decree (known as
hatt- Hmayun of Glhane) that was read out in great pomp at the royal
Rose Garden in Istanbul in 1839 is considered in the historiography (and
in the Ottoman historical imagination) as the opening shot of the Tanzimat. Yet the Tanzimat was really rooted in the preceding periods of the
reform-minded Sultans Selim III (ruled 17891807) and Mahmut II
(ruled 180839). The historiography of the last two decades has refuted
the earlier depiction of the era of Abdlhamit II (18761909) as a period
of setback with regard to the Tanzimat reforms. The reform movement is
now perceived as a continuum that had started at the late eighteenth
century and ended with the demise of the empire, in parallel with the
long nineteenth century.3 In fact, most of the major administrative and
legal innovations that had been ushered in by the earlier generations of
reformers came to fruition during the Hamidian period. The reforms
appear in the scholarship an outcome of both external and internal
motivations. The former denotes the always-increasing pressures by the
European powers while the latter refer to a somewhat loosely related
group of Ottoman bureaucrats and thinkers, spreading over several generations and espousing a wide spectrum of ideas, who believed that the
overall weakness of the state called for a comprehensive reform.
An entanglement of interests was at play in both the foreign diplomatic and
the Ottoman socio-political scenes, often in ways that blurred the distinction
between the external and the internal. Yet according to the mainstream
historiography, both Europeans and Ottomans throughout the long
nineteenth century seemed to have shared a common impression of threat to
the very existence of the empire. Hence, the Ottoman reformers perceived
the reforms as the only way to save the empire whereas the European powers
(sometimes most of them, at times some of them) demanded reforms in
order to hold the empire together in the context of the Eastern question.
Until the second half of the nineteenth century, the eriat courts had
formed the backbone of the Ottoman judicial system. Administered by kads,
these courts addressed all cases in accordance with a combination of Islamic
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Ottoman Judicial Change in the Age of Modernity 3

law (eriat), compilations of sultanic law (kanunnames) and customary law (rf).
The foundation of the courts of commerce (ticaret mahkemeleri) in the midnineteenth century throughout the big urban centers such as Istanbul,
Beirut, Cairo and Izmir, and the establishment of mixed criminal courts for
addressing cases involving Ottoman subjects and foreigners (1847) marked the
gradual emergence of a new court system that would erode the jurisdiction
of the eriat courts as the century unfolded. Eventually, the eriat courts were
left with competence over matters of personal status and pious endowments
(vakf). During the second half of the century the Nizamiye (regular) courts,
spreading almost all over the Ottoman domains, came to be the exclusive
judicial forum for addressing criminal, civil and commercial cases.4 The
Nizamiye court system appears in the historiography as an emblematic
expression of a wide-ranging process of Westernization which by extension
characterized the entire reform project. Indeed, the judicio-administrative
structure of the Nizamiye court system as a whole was modeled after the
French one. Rationalization in the Weberian sense is mentioned in the
scholarship as a key feature or key objective of the reformed bureaucracy.5
Although not all the codes that were promulgated during the nineteenth
century were borrowed from Western law, the lions share of the literature
describes the legislation that facilitated the legal reform as an exemplary
aspect of westernization, while the notion of Westernization is rarely
problematized in the modern historiography of the Ottoman Empire, as
will be argued shortly. It is nevertheless true that legal borrowing was
present even in the more authentic Ottoman codes that were based on
Islamic law. The very act of codification may be argued to be originated
from modern European Continental Law.6 The extensive projects of
statutory codification appear in the scholarship as evidence of the secularization
of the law, energized by the incessant process of westernization. All these
laws, except for the Civil Code (Mecelle, 18691876) and the Land Code
(1858) were adaptations of French positive law. Some scholars argue that
even though the Civil Code is a codification of Islamic (Hanefi) law, it is
nevertheless a secular code formed under the influence of European ideas.7
In the following section, I take issue with the dominant tendency in
scholarship to focus on westernization, secularization and ruptures when
dealing with Ottoman legal change. Few scholars have questioned the
value of westernization as a descriptive category with regard to the
Ottoman nineteenth century.8 Yet, given that a systematic similar critique
on the particular field of nineteenth century law is absent, a somewhat
extended exploration of the secularization/westernization narrative in the
historical writing on Ottoman modernizing law is in order.
The Paradigm of Westernization, Secularization, and Dualism
The notion of Westernization echoes throughout the scholarship on the
nineteenth century, going hand in hand with the concept of Secularization.
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4 Ottoman Judicial Change in the Age of Modernity

In fact, historians have tended to use the signifiers of westernization,

secularization, and modernization as synonyms that either describe or
explain Ottoman realities in the long nineteenth century. These terms carry
the seal of the modernization meta-narrative, also known in the field as
the impact of the West which may be traced back to the pioneering
works of Gibb and Bowen, Lewis, Berkes and Davison and is structured
around three interrelated postulations that may be simplified as follows:
First, the reforms of the nineteenth century resulted primarily or solely
from European pressures in a context of growing Ottoman submissiveness
and lack of agency. Secondly, the Ottoman reformist grand design, at the end
of the day, was a more or less full imitation of the Western ways. Thirdly,
some coherent entity known as the West is the exclusive benchmark for
evaluating the success of Ottoman policies.9
The paradigm of westernization is rooted simultaneously in Ottoman
intellectual discourses and the scholarly modernization theories of the
1950s and the 1960s. Founded on a dichotomous and essentializing divide
between traditional and modern developmental phases, social scientists
shared the conviction that there was only one version of modernity, and
only one way to accomplish it. Nourished by political agendas and interests
dictated by the Cold War, modernization approaches lost their appeal by
the 1980s, when the failure of their political and intellectual implications
became apparent. From a scholarly perspective, they turned out to be too
simplistic, too analytically ambiguous.10 Oversimplifying complicated social
and economic processes that are otherwise contradictory and always unstable
by attributing to them some superficial linearity and homogeneity is a
common feature of narratives about Ottoman Westernization.
Ottoman intellectuals during the nineteenth century wrote intensively
on the impact of the West, struggling with questions in the spirit of: should
Ottoman society imitate the West? Is westernization a good or bad thing
for our society? Should we adopt some aspects of Western practice while
reject others? This discourse, shared by modernists and conservatives alike
and involving a variety of opinions, was founded on a series of reifications
most notable of which was an essentialized notion of the West, or the
Franks.11 When asking how productive is the prism of westernization for
explaining social change in general and legal change in particular, the
Ottoman discourse on westernization might be misleading. Here, Brubaker
and Coopers distinction between categories of social and political practice
and categories of social and political analysis is helpful. Adapted to the
language of historians, categories of practice are categories of everyday social
experience used by the historical actors, which are distinguished from
the categories of analysis used by researchers.12 Brubaker and Cooper warn
us from uncritically adopting categories of practice as categories of analysis
thereby reproducing or reinforcing reifications instead of explaining them.
Westernization was clearly a category of practice in Ottoman intellectual
discourse during the long nineteenth century and increasingly towards the
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Ottoman Judicial Change in the Age of Modernity 5

final two decades of Ottoman existence. Yet, having Brubaker and Coopers
critique in mind, pointing to this Ottoman discourse in itself as a proof
of some self-evident westernization, is actually to reproduce common
reifications by subjecting categories of analysis to categories of practice.
As far as the scholarship on nineteenth-century law is concerned, the
signifier secularization is commonly equated with westernization. The
judicial reform is by and large told as a story of a mounting adoption of
Western law and an interrelated mounting secularization of the law. When
mentioned in concert, the eriat and Nizamiye courts are often labeled in
scholarship as two distinct and opposite religious and secular courts
respectively.13 Regardless of the importance attributed to secularization in
the process of legal change, the actual meaning of the category secular
in sociolegal or even strictly legal contexts (if something like this at all
exists in reality) is rarely subject to a serious discussion.14 Expecting this
type of conceptual reflexivity from historians who worked in the 1950s
and 1960s would be unfair given the fact that Ottoman social history
(indeed, Middle East history in general) was almost a terra incognita at
that point and also because unthinking the category of secularization was
almost unthinkable for those who worked within the academic and political
environments dominated by modernization theory.15 However, whereas
wisdoms generated by modernization theory have been turned upside
down during the last four decades, the status of secularity as a self-evident
analytical category has endured in historiography.16
For instance, in her oft-cited Law as a Metaphor (1992) June Starr sets
Ottoman legal reform of the nineteenth century as the point of departure
for a process that would lead, eventually, to the pervasiveness of the
secularist discourse in the Turkish republic, which she nevertheless
skillfully reconstructs through the prism of legal anthropology. The part
of her narration that refers to Ottoman legal reform is organized around
an evolutionary and linear development of secular law embodied in the
early courts of commerce during the 1840s and the later full-fledged
secular legal system that consisted of the Nizamiye courts. This linear
progression would only come to fruition with the Turkish Republic during
the mid-twentieth century. The actual meaning of secular legal system
in the context of nineteenth century Ottoman society remains completely
obscure in this description. The absence of any tackling, both empirical
and theoretical, with the notion of secularity is all the more puzzling in
the light of her main argument: By the mid-nineteenth century and early
twentieth century law became the metaphor in the competition for state
control between secular and Islamic elites.17 Starrs stated awareness of the
fact that the Ottoman eriat-made civil code (Mecelle) was in use in both
the secular (Nizamiye) and the religious (eriat) courts has no impact
on her a-historical notion of a linear secularization.
Interestingly, historians commitment to more accurate and historical
definitions of secularity does not necessarily produce an alternative to the
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6 Ottoman Judicial Change in the Age of Modernity

accustomed evolutionary, linear narrative of secularization in the legal

sphere. For example, Okumu defines the years 18391924 as a period of
quasi-secularity which had laid the foundation for the later, full-fledged
secularism of modern Turkey.18 Writing from a sociological perspective,
he is well aware of the importance of defining analytic categories, and he
therefore states that secularity is understood in his study in terms of
separation between state and religion. He proposes an analytic differentiation
between secularity that is associated with the state: laiklik (deriving from
the French liberal notion of lacit), and another type of secularity, which
is associated with society: seklerlik.19 His explanation of Ottoman sociolegal
change does not benefit from this distinction beyond trading one obscure
notion for another reified notions of state and society without actually
historicizing them. However, Okumu does provide an interesting though
not-exhaustive exploration of meaning when pointing to secularization
of the law through the legal language. But if anything is suggested by this
linguistic transformation, it is the inaccuracy of secularization as a category
of historical analysis. As argued by Okumu, before the Tanzimat the term
hrriyet, for instance, had been defined by the opposite conditions of
captivity and slavery whereas in the course of the Tanzimat period it
assumed the new meaning of political freedom. Okumu defines the
earlier meaning as a traditional Islamic one, yet one can think of several
reasons for this change of meaning, all of which grounded in historical
developments that have nothing to do with the European meaning of
secularity, such as the abolition of slavery and the impact of new ideas
of political representation. Okumus description of Ottoman codification
is presented as yet another evidence of secularization although the actual
meaning of secular law in a society that is predominantly pious to different
degrees is not part of his discussion.
Representations of Ottoman legal change along the binarisms of religious/
secular and western/eastern are embedded in the ubiquitous notion of
dualism, which signifies a century-long competition between modernist
and traditionalist forces. By dualism historians have referred to an
assumed divide between religious and secular spaces, evident in the realms
of education, cultural production, politics, and law.20 In the field of law,
dualism has been represented by the co-existence of the westernized
Nizamiye courts and the associated borrowing from European law on the
one hand, and the traditional eriat courts on the other. It is often
invoked as a symptom of the confusing nature of the Ottoman reformed
judicial system, characterized by blurred boundaries between the secular
and the religious courts.21 Imposition of vertical linearity on Ottoman
legal change is most evident in the tendency of scholars who adopt the
secularization narrative to read history backwards, rendering modern
Turkish secularism the end and climax of a story that had allegedly started
in the Tanzimat state.22 This reading downgrades the fact that until its very
end, the Ottoman state remained a multi-ethnic, predominantly Islamic
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Ottoman Judicial Change in the Age of Modernity 7

empire that was lead by elites whose political imagination had been quite
different from the one that shaped the praxis typical of the nation states
that succeeded it.23
From Legal Reform and Dualism to Sociolegal Change and Judicial Syncretism
Legal historians of the Ottoman Empire have produced detailed studies
addressing the numerous laws and regulations, and the administrative
changes that made up legal and judicial reform.24 However, while we
know much about state-generated reform, our knowledge of the social
mechanisms that contributed to the multifaceted process of sociolegal
change is remarkably insufficient. The sociolegal approach is an interpretive
framework that explores the law as an aspect of social relations. As
such, it offers a starting point for formulating a new set of questions and
methodologies for understanding Ottoman legal change in the context of
modernity.
Being consciously eclectic and methodologically heterogeneous from
the start, the sociolegal approach does not, and should not lend itself to
a straightforward definition. Not unlike other influential trends in the
social sciences, it emerged in resistance to a major academic tradition. In
this case, sociolegal studies materialized as an attempt to break out from
the claustrophobic world of legal scholarship and education, as previously
encountered.25 Hence, it is not the laws or codes of any given society
that form the focus of sociolegal analysis but rather, the detailed, varied
practices and meanings that constitute legal systems and that may not be
studied in isolation from key social and cultural developments. The existing
scholarship on late Ottoman law begs for a transition from a legalistic
state-centered emphasis (legal reform) to approaches that would shed
light on various sites of sociolegal interactions that presently are little
known. The very few recent studies that do explore sociolegal change from
a provincial perspective enhance and modify the present understanding of
the Ottoman sociolegal sphere during modernity.26
For analytic and methodical purposes, it may be helpful to distinct
between sociolegal change within the judicial institution (encompassing
both the eriat and Nizamiye courts and the administrations that supported
them) and sociolegal dynamics that involved interactions between the legal
system and its users, namely, those individuals who encountered various
state agencies that represented the law, primarily the courts, but also the
municipal councils (meclis-i idare), land registration offices and so on.27
The Tanzimat, as a term and concept, was a creation of the ruling elite,
yet bottom-up approaches carried out by social historians working on
provincial settings have demonstrated that administrative reforms often
stemmed from processes of complex negotiations between the Imperial
center and provincial elites.28 The binary hierarchy of center and periphery
have sculpted the common wisdom concerning the dissemination of legal
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8 Ottoman Judicial Change in the Age of Modernity

practices. The conventional narration of legal reform is arranged along

the line of first legislation at the center and then (often inadequate)
implementation at the provinces. To be sure, the field of judicial reform
is traditionally more prone to top-down approaches, all the more so when
embedded in a fetishizing treatment of the state. It is clear, however, that
even though state legislation was a major impetus for change and innovation
in the judicial sphere, it was certainly not the exclusive one. Agmons path
breaking study of the provincial eriat courts in late Ottoman Jaffa and
Haifa is an in-depth reconstruction of such reality. Among other things,
her study reveals that some procedural innovations had been practiced
by court personnel more than a decade before they were legislated at the
center.29 Quite plausibly, innovations born out of procedural experimentations at the local level were not limited to the Jaffa and Haifa courts
studied by Agmon.
Judge-made legal change is a well known theme in sociolegal scholarship,
being a universal feature of legal systems, including the supposedly more
statute-centered courts of the Continental legal tradition.30 Hence, there
is a true need for studies that would explore other local sites of sociolegal
change and explain the mechanisms involved in the diffusion of legal
practices. Referring to Western law, Hayek, for instance mentions judges
socialization as an important catalyst for legal change in general.31 In the
late Ottoman empire, the career of the typical nineteenth-century judicial
official be it a judge, a clerk, or a public prosecutor was often a hectic
journey in geographic and bureaucratic terms. The curriculum vitae of
the typical judicial official at the second half of the century would record
service in multiple Ottoman regions in a variety of positions, habitually
demonstrating remarkable versatility. Even after the establishment of the
new specializing schools, such as the Mlkiye (school for civil servants) and
the Mekteb-i Hukuk (law school), which contributed to a process of trainingbased professionalization to be sure, actual experience and appropriate
patronage network (intisap) remained the most important assets of the
typical official. Ottoman judges and public prosecutors had been exposed
to a wide range of worldviews, ideas, and local practices. Some of these
local practices must have been inspiring, shaping new perceptions, resulting
in turn with a horizontal movement of ideas concerning judicial praxis.
The head clerk (baktib) of the court of commerce in the province of
Van writes in 1888 that numerous models for inscribing court decisions
(ilams) result from the fact that court clerks move between courts.32 It is
clear, then, that legal change has much more to it than merely the state
does this or legislates that. It is also clear that the movement of people
and ideas across center and periphery shaped legal change in ways that are
yet to be reconstructed systematically.
How did the transformation of the Ottoman judicial sphere affect the
tactics employed by ordinary people in the courts of law? This question
is all the more intriguing given the well-known century-old centrality of
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Ottoman Judicial Change in the Age of Modernity 9

the eriat court in the everyday lives of Ottoman men and women of all
religious communities. For one, the Land Code of 1858 had a far-reaching
impact on the establishment of individual ownership rights, even when its
raison detre was state centralization and not a liberal ideology. The resulting
administrative practices of land registration and survey stimulated a
dynamic social space marked by negotiation, resistance and compliance
from the part of ordinary people.33 Our knowledge of the specific social
implications of the Land Code is partial, although it is nevertheless
significantly richer than our knowledge of how everyday experiences in
the courts were affected by the new legislation.34
There are very few studies that explore everyday reactions to and
experiences of nineteenth-century Ottoman sociolegal change in local
judicial settings.35 Occasionally, scholarly evaluations of the reforming
Ottoman legal system are guided by an idealistic expectation for judicial
coherence and harmony, thus interpreting situations of jurisdictional
conflicts and legal pluralism as anomalies or administrative malfunctions.36
Extensive anthropological research on legal pluralism teaches us that modern
legal systems in general are a far cry from their neat, orderly image.
Inconsistencies, jurisdictional conflicts, and forum shopping in general
form the norm rather than the exception in most sociolegal settings, in
and outside the domain of state law.37 Employing the prism of legal
pluralism in the study of nineteenth-century Ottoman law is necessary for
understanding litigants reactions to judicial change as well as for reconstructing the agencies of ordinary people. Rather than assessing the division
of labor between the Nizamiye courts and the eriat courts and the related
conflicts in terms of administrative incompetence or dualism, one can
view such conflicts as a normalcy that opened up new opportunities for
forum shopping. It is clear, for instance, that there was a good deal of
forum shopping involving the civil sections of the Nizamiye courts and
the eriat courts despite the more accurate division of labor of 1879 and
its later reinforcements.38 Having in mind the predominance of the eriat
court prior to the nineteenth century, the passage of Ottoman judicial
sphere to modernity may have also meant unprecedented legal pluralism,
from the litigants point of view.
The plurality of the daily lives of the reformed law was allowed by a
hybrid legal and judicial culture, which is camouflaged in the conventional
historiography by the notion of dualism, already criticized above. Two
important features of the Ottoman judicial sphere that have been either
ignored or marginalized in the secularization narrative are the intertwined
nature of the eriat and the Nizamiye judicial spaces, and the fact that the
eriat courts were not left outside the large wave of reform and sociolegal
change. Contrary to the prevailing assumption that had associated the
emergence of the so-called westernizing Nizamiye courts with an alleged
withering of the eriat courts, recent studies of the eriat courts demonstrate
that much energy was invested in reforming these courts through legislation
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10 Ottoman Judicial Change in the Age of Modernity

and administrative measures. During the second half of the century,

procedural innovations and professionalization were introduced in both judicial
forums and by all means were not limited to the Nizamiye courts.39
In addition, it becomes fairly clear that the Nizamiye and the eriat courts
were not distinct legal systems as previously assumed, but rather two
entangled components of a single judicial sphere converging in some aspects
and departing in others. The flux of personnel between the Nizamiye and
eriat domains throughout the long nineteenth century is indicative. A
most effective example in this regard was the dual role of the naibs (eri
judges from the ranks of the ilmiye, the learned class), who served at the
local eriat courts and at the same time presided the civil sections of the
Nizamiye courts of first instance. Even after the rationalizing reforms of
1879 the naibs remained employees of the Meihat (ministry of the eyhlislam)
while their work at the Nizamiye courts was prescribed by a distinctively
Nizami procedural code. Historians have attributed the dual role policy to
the states inability to realize a complete separation of the eriat and
Nizamiye systems.40 But this explanation is undermined by evidence
demonstrating the continuance of this policy even when there was already
a sufficient number of officials who had passed qualifying exams and thus
considered professional Nizamiye personnel.41 This flux of judicial manpower was not limited to the civil sections of the Nizamiye courts but was
also characteristic of the criminal sections at all levels, which were self
consciously composed of functionaries from both the religious system and
the civil bureaucracy.42
The syncretic makeup of modern Ottoman law was not only a matter of
everyday judicial practice but also a cognizant scheme officially acknowledged and conveyed at the symbolic level. For instance, the Ottoman coat
of arms which was commissioned by Mahmut II displayed two heavy
tomes carried by the Sultans crown. In Abdlhamid IIs reign the tomes
were interpreted as symbols of eriat and Nizamiye law respectively,
both topped by a set of scales representing a coherent conceptualization
of justice.43
A straightforward demonstration of this hybridity in the field of positive
law was the combination of a eriat-made civil code and the French-inspired
procedural code. The Ottoman civil code, the Mecelle, was an innovative
formulation of Hanefi Islamic law, designed to be applied in both the civil
Nizamiye courts and the eriat courts. The blend of codified eri and
European positive laws was further emphasized with the introduction of
the Nizamiye procedural code (1879). This important legal source was an
Ottoman adaptation of the Napoleonic Code of Civil Procedure, replacing
the procedural sections in the Mecelle. As argued by Layish, codification
of the eriat through the act of legislation implies the transformation of
the eriat from jurists law to statutory law, thus resulting in a sharp
deviation from the older patterns of the religious-legal literature.44 Layish
rightly stresses the change brought about with codification, but it is no
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Ottoman Judicial Change in the Age of Modernity 11

less imperative to keep in mind that although the option of a wholesale

adoption of foreign civil law was considered and debated among Ottoman
statesmen, the eventual decision of the Ottoman reformers to codify the
eriat meant the continuance of a syncretic legal vision.
The Young Turks Revolution which put an end to the de facto rule of
the sultans did not seem to have a dramatic impact on the hybrid makeup of the judicial sphere. It is true that the centuries-old prominence of
the ulema in Imperial politics and the state machinery in general was
overall weakening.45 After the revolution, the naibs gradually lost their
exclusive role as presidents of the civil sections of the Nizamiye courts,
and in 1917 the eriat courts, previously subordinated to the office of the
eyhlislam, were transferred to the authority of the Ministry of Justice.46
Yet, at the same time, the division of labor between the Nizamiye and
eriat courts, fluid as it was, was maintained. The Procedural Law of the
eriat Courts demonstrates that as late as 1917, proceduralization, and not
secularization was the principle that guided the legislature. Several clauses
in the eri procedural law allude to the Nizamiye Code of Civil Procedure
from 1879. For instance, clause 14 stipulates that investigations concerning
issues of jurisdiction will be conducted in accordance with the Nizamiye
Code of Civil procedure.47 In fact, this law formalized the integrative
nature of the Ottoman judicial system. Nowhere in this law there is a
formulation that implies a competition between two judicial systems, and
nowhere there is a hint of or an attack over the competence of the eriat
courts vis--vis the Nizamiye courts.
Having this enduring syncretism of Ottoman reformed law in mind,
can we still depict Ottoman sociolegal change in terms of a progressing
secularization? The term secular was nonexistent in Ottoman professional
legal jargon to begin with, and this was also true to the word religious.
What historians referred to as religious and secular courts appeared
in the Ottoman bureaucratic language as eri and Nizamiye (or adliye)
courts respectively. The distinction between secular and religious legal
spheres is a late invention. This critique is neither a call for removing the
notion of secularity from historians vocabulary when explaining Ottoman
sociolegal change nor it suggests any easy solution provided by better
definitions. If anything, it is a call for historicizing the concept of secularity
thereby acknowledging that it possessed different meanings in different
legal contexts, both as a category of practice and a category of analysis.
By the same token, in order to be meaningful as a category of social
analysis, the notion of secular should not be assumed instinctively the
reverse of religious, as it is often the case.48 As far as the secularization
narrative is concerned, the secular/religious dichotomy was not even a
major category of social practice in the late Ottoman legal discourse. Bedir
finds the Ulemas indifference to the foundation of the Nizamiye Law
School (Mekteb-i Hukuk) startling, arguing that one would expect that
such a dramatic move in the history of fkh would have attracted the
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12 Ottoman Judicial Change in the Age of Modernity

attention of the ulema.49 But there is no grounds for such an expectation at

the outset, unless one reads history via the contemporary conceptualization
of the secular. Forces of reform and reaction were set in particular political
constellations, rather than in a linear, homogeneous process. Abdlhamid
II, for instance, enjoyed the support of prominent ulema such as the
eyhlislam Ahmet Esat Efendi (181389) and his successor Cemaleddin
Efendi (18481919), as well as the reformer and alim Cevdet Paa.50 The
Young Turks revolution brought with it new alliances in Imperial politics,
which had a bearing on older power bases.
The issue of historical contingency leads us to the question of historical
ruptures. The question of modernitys rupture with the past is a major
theoretical challenge in the social sciences. For historians working on the
long nineteenth century, focusing on the obvious aspects of rupture runs
the risk of overlooking particular sites of continuity which could otherwise
provide for more nuanced interpretations of Ottoman sociolegal change.
On the other hand, the risk of producing essentialist, linear and evolutionary
descriptions free of the contingencies and discontinuities that characterize
human histories, is just as apparent. The historiography reviewed here is
mostly about new laws, new bureaucratic bodies and new courts. In other
words, it is preoccupied with ruptures. The actual realities engendered by
Ottoman reforms and modern intellectual discourses justify the spotlighting
of innovations, but at the same time it renders the exploration of possible
continuities more interesting and important.51
The westernization-secularization-dualism narrative usually positions
the Nizamiye courts and the associated legislation in the province of the
modern whereas the eriat courts and the ulema are considered traditional.
As demonstrated above, the actual experiences in the courts and the
general make-up of the positive law do not really fit with this representational construction. This is true not only with regard to the syncretic, legally
pluralistic nature of the reformed judicial sphere, but also with regard to
the endurance of past conceptualizations of justice alongside new ones.
Reconstruction of continuities in the age of modernity is especially
significant when studying judicial praxis because historical continuity is a
key characteristic of legal systems worldwide, evident in positive law even
in periods of major legal borrowings and codifications. Such continuities
are sometimes camouflaged by modern forms and rhetoric and thus
escape the historians gaze. For instance, when analyzing the Criminal
Code of 1840, Miller argues that in the modern Ottoman legal system
Justice (in the criminal context) was not about the protection from
criminals or the rights of citizens, but rather about the protection of the
purity of bureaucratic function, deeply rooted in the modern redefinition
of state institutions.52 Whereas accentuation of bureaucratic purity may
have been a novel theme in European legal systems, it was certainly not
an innovation in the Ottoman context. In Ottoman political theory and
legal discourse long before the nineteenth century, the concept of Adalet
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Ottoman Judicial Change in the Age of Modernity 13

(Justice) was understood, first and foremost, in terms of the relations

between the ruler and his subjects (reaya, or flock) and the formers
obligations to the latter. Taming state officials and dealing with abuses of
authority was a major preoccupation in the well-known adaletnmes
(justice decrees) that were issued by the hundreds throughout Ottoman
history, together with other practices and institutions dedicated for this
objective.53 Hence, while it is true that modern Ottoman discourse on
bureaucratic accountability assumed a modernist flavor in the nineteenth
century, now emphasizing rationality, bureaucratic generalization, professionalization, and state centralization, the essential equalization of Justice
with bureaucratic purity was not a new concept, even when integrated
into the modernist conception of bureaucracy. Miller further underrates
historical continuity when arguing that the religious establishment was
incorporated into the new legal system beginning with the 1840 Criminal
Code.54 By the same token, Islamic legal philosophy, according to Miller,
was incorporated into the Nizamiye system through the Criminal Code
of 1851, signifying a deviation from the concept of a clear separation
between eriat ideology and temporal law (kanun, Sultamic law) ideology
that had characterized criminal law in the pre-Tanzimat era.55 Contrary
to this argument, the previously accepted presentation of premodern
Ottoman law as a dual system divided to eriat and Kanun has been
contested. The boundaries between these two sources of Ottoman law
had always been elusive, and starting from the sixteenth century, they were
amalgamated into a single legal system, which also included customary
law (rf).56 Hence, the fluidity that characterized the doctrinal boundaries
between the eriat and the law of the Sultan prior to the nineteenth
century was still evident in the new context of a statutory law.
In the same way, the similarities between the judicial discourse evident
in the sicils (eriat court records) and the Nizamiye official discourse are
telling when trying to explain why the Ottoman reformers chose to
borrow from the Continental legal tradition rather than the Common
Law. The depersonalized, mechanistic Nizamiye discursive style, which
revealed little about the process of judicial interpretation and conflicts in
the courtroom (unlike the Common Law discursive style) was not unfamiliar
to the Ottoman lawyers who had been accustomed to the economical
style of the sicil. The absence of the principle of judicial precedence in
the pre-modern Ottoman legal system was also a similarity shared with
the Nizamiye-Continental adjudication.57
The point in calling for further reconstruction of continuities in Ottoman
nineteenth-century law, then, is not to contend oneself with proving the
obvious, namely, that even in periods of great transformation historical
continuity must be at play. Rather, the task ahead is to reconstruct specific
mechanisms and sites in which past judicial practices and ideas persisted
in new and old forms. This undertaking is important for the sake of
producing nuanced interpretations of Ottoman sociolegal modernity,
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14 Ottoman Judicial Change in the Age of Modernity

but also for challenging the meta-narratives of simple westernization and

secularization.
Conclusion
By problematizing concept of Westernization as a category of social analysis
I do not mean to underestimate the impact of European ideas and practices
on Ottoman sociolegal realities of the nineteenth century. The Ottomans
did adopt from Europeans new key concepts such as separation of powers
and independence of the courts, and the Nizamiye court system was
significantly inspired by the Continental legal tradition. What I argue,
instead, is that the multifaceted dialogue between Ottomans and Europeans,
along with a continuous process of cultural translation, produced intricacies
that resist simplifying labels. Legal borrowing cannot be but selective, and
the processes of rendition involved with legal borrowing are not merely a
matter of translating legal terms.58 Consequently, all legal regimes present
at least some elements borrowed from elsewhere, and all of them are
consequently hybrid to various degrees.
A sociolegal mode of investigation that would hopefully add to what
we already know about Ottoman legal systems and institutions must
include hermeneutic reconstruction of individual human voices. It is true
that the sources, most of which produced by the bureaucratic elite, do not
lend themselves easily to reconstructing the everyday behaviors, choices,
and reactions of ordinary people who went to courts as well as those of
the judicial rank and file. However, these sources are far from mute when
read through microhistorical lenses.59 Toledanos recent social history of
Ottoman enslavers and enslaved demonstrates that even the most transparent
members of society can be given voice through a sophisticated reading of
standard archival material. Recovering individual experiences requires
bending-within reason-some of the conventions of historical narrative,
while admitting that imagination has a crucial role in historians narratives,
and then coming to grips with the question of how exactly imagination
should be employed.60
Short Biography
Avi Rubin is a lecturer at the Department of Middle East Studies, Ben
Gurion University of the Negev.
Notes
* Correspondence address: Department of Middle East Studies, Ben-Gurion University of the
Negev, Beer Sheva 84105, Israel. Email: avirubin@bgu.ac.il.
1

For a recent example, see: M. . HanioGlu, A Brief History of the Late Ottoman Empire
(Princeton, NJ: Princeton University Press, 2008).

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Ottoman Judicial Change in the Age of Modernity 15

2
This overview does not cover the scholarship on nineteenth-century Egypt. Officially, Egypt
was part of the Ottoman Empire yet practically it was autonomous until the British occupation
(1882). Legal change in Egypt already before the British occupation assumed a distinct course,
with a separate project of legal reform, but diffusion of ideas on legal reforms between Cairo
and Istanbul and mutual influence can be safely assumed. In any case, this question awaits
systematic research.
3
E. R. Toledano, Social and Economic Change in the Long Nineteenth Century, in M.
W. Daly (ed.), The Cambridge History of Egypt, vol. 2 (Cambridge: Cambridge University Press,
1998), 252 84.
4
Nizam was a key word in the reform period. The definitive Redhouse Ottoman-English
lexicon (1890) translates it as order, regularity, law, system, and method. Similarly, an Ottoman
dictionary from 1899 describes nizami as well-organized (tertipli), set in order (mretebb), regular
and orderly (muntazam). See: S. emseddin, Kamus-i Turki (Dersaadet: Ikdam Matbaas, 1899
[1317]). In the modernist imagination of the reformers, order and regularity formed the
hallmark of the new court system. See: A. Rubin, Ottoman Modernity: The Nizamiye Courts
in the Late Nineteenth Century, unpublished Ph.D. thesis (Harvard University, 2006).
5
C. V. Findley, Ottoman Civil Officialdom (Princeton, NJ: Princeton University Press, 1989), 9;
K. H. Karpat, Studies on Ottoman Social and Political History: Selected Articles and Essays (Leiden/
Boston, MA: Brill, 2002), 85.
6
On Ottoman legal borrowing, see: A. Rubin, Legal Borrowing and its Impact on Ottoman
Legal Culture in the Late Nineteenth Century, Continuity and Change, 22/2 (2007): 279 303.
And codification there was: The Code of Commerce from 1850; The Land Code of 1858 (132
articles); The Criminal Code of 1858 (264 articles); The Civil Code (Mecelle) of 186976 (1,851
articles); The Law of Commercial Procedure from 1861; The Code of Maritime Commerce
from 1863; The Code of Criminal Procedure from 1879; The Code of Civil Procedure from
1879; The Code of eri Judges and Officials from 1913; The Ottoman Family Law from 1917.
This is merely an incomplete list of the laws and codes that were legislated during the long
nineteenth century.
7
J. Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, 1964), 92.
8
For an insightful critique on the notion of Westernization, see: H. IslamoGlu and P. C. Perdue,
Introduction, Journal of Early Modern History, 5/4 (2001): 111. For an additional effective
critical review of the literature on the Tanzimat, see: B. zdemir, Ottoman Reforms and Social
Life: Reflections from Salonica 18301850 (Istanbul: The Isis Press, 2003), 2151. Also: B. Grsoy,
Review on Fatma Mge Geks Rise of the Bourgeoisie, Demise of Empire-Ottoman Westernization
and Social Change, Journal of Historical Studies, 4 (2006): 417. For a critical approach toward
westernization in the field of architecture, see: S. Hamadeh, Ottoman Expressions of Early
Modernity and the Inevitable Question of Westernization, Journal of the Society of Architectural
Historians, 63/1 (2004): 32 51.
9
H. A. R. Gibb and H. Bowen, Islamic Society and the West, A Study of the Impact of Western
Civilization on Moslem Culture in the Near East, 2 vols. (London/New York, NY: Oxford
University Press, 195057); B. Lewis, The Emergence of Modern Turkey (London/New York, NY:
Oxford University Press, 1965); N. Berkes, The Development of Secularism in Turkey (Montreal:
McGill University Press, 1964); R. H. Davison, Reform in the Ottoman Empire, 1856 1876 (Princeton, NJ: Princeton University Press, 1963).
10
For a history of the Modernization Theory, see: N. Gilman, Mandarines of the Future:
Modernization Theory in Cold War America (Baltimore, MD: Johns Hopkins University Press, 2003).
11
For the late Ottoman intellectual discourse on westernization, see: M. . HanioGlu, The Young
Turks in Opposition (New York, NY: Oxford University Press, 1995), 728. Westernization
occupied the minds of Ottoman novelists as well, see: . Mardin, Religion, Society, and Modernity
in Turkey (Syracuse, NY: Syracuse University Press, 2006), 13563. It seems that these reifications
are time-proof. For a critique on contemporary conceptualizations of Islam and the West,
see: L. Stenberg, Islam, Knowledge, and the West: The Making of a Global Islam, in B.
Schaebler and L. Stenberg (eds), Globalization and the Muslim World: Culture, Religion, and
Modernity (Syracuse, NY: Syracuse University Press, 2004), 93 110.
12
Brubaker and Cooper use this distinction in the context of their critical discussion on the
meanings of identity, but its relevance to all other categories used by social analysts is obvious.
They argue that the concept of identity has come to encompass so many meanings in the

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16 Ottoman Judicial Change in the Age of Modernity

scholarly literature, some of which are entirely contradictory, to the point that it lost its analytic
worth, turning out to be completely vague. They offer the distinction between categories of
practice and categories of analysis as a starting point for their critique. R. Brubaker and F.
Cooper, Beyond Identity, Theory and Society, 29/1 (2000): 147.
13
For instance, J. N. D. Anderson and N. J. Coulson, Islamic Law in Contemporary Cultural
Change, Saeculum, 18 (1967): 37; I. Yilmaz, Muslim Laws, Politics and Society in Modern Nation
States: Dynamic Legal Pluralisms in England, Turkey, and Pakistan (Aldershot/Hants: Ashgate,
2005), 92; C. V. Findley, The Turks in World History (Oxford: Oxford University Press, 2005),
160 1.
14
Niyazi Berkes influential work on secularism is an exception. Though written within the
heavily criticized binary of modernity/tradition, he does bother to address the meaning of
secularity, albeit rather briefly. see: Berkes, Development of Secularism in Turkey, 5 8. Talal Asads
thought provoking discussion on legal reforms in colonial Egypt is another exception. In a
remarkably sophisticated discussion, Asad demonstrates that there is nothing self-evident in the
notion of secularity, a concept whose meaning is structured by very specific contexts of power
relations: T. Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford, CA: Stanford
University Press, 2003), 205 56.
15
Salient examples are: Berkes, Development of Secularism in Turkey; Davison, Reform in the
Ottoman Empire.
16
For a stimulating critique on the misleading religious/secular binarism in the field of
Ottoman educational change during the Hamidian period and an alternative approach, see: B.
C. Fortna, Imperial Classroom: Islam, the State, and Education in the Late Ottoman Empire (Oxford/
New York, NY: Oxford University Press, 2002).
17
J. Starr, Law as a Metaphor: From Islamic Courts to the Palace of Justice (Albany: State University
of New York Press, 1992), xxxix.
18
E. Okumu, A. Cihat, and M. Avc, Osmanl Devletinde E'itim, Hukuk ve Modernleme
(Istanbul: Ark kitaplar, 2006), 256 98.
19
Ibid., 261.
20
For instance, see: Binnaz Toprak, Islam and Political Development in Turkey (Leiden: E. J. Brill,
1981), 49; Berkes, Development of Secularism in Turkey; Ilber Ortayl, mparatorlu'un En Uzun
Yzyl (Istanbul: Alkm Yay., 2005); Jacob Landau, Ataturk and the Modernization of Turkey
(Leiden: E. J. Brill, 1984), 248; HanioGlu, Brief History of the Late Ottoman Empire.
21
In Eisenmans words: a confusing welter of competences. See: R. H. Eisenman, Islamic Law
in Palestine and Israel: A History of the Survival of the Tanzimat and Sharia in the British Mandate
and Jewish Israel (Leiden: E. J. Brill, 1978), 17.
22
For instance: D. Glidewell Nadolski, Ottoman and Secular Civil Law, International Journal of
Middle East Studies, 8/4 (1977): 51743; M. Bedir, Fkh to Law: Secularization through
Curriculum, Islamic Law and Society, 11/3 (2004): 378401; A. zman, The Portrait of the
Ottoman Attorney and Bar Associations: State, Secularization, and Institutionalization of
Professional Interests, Der Islam, 77/2 (2000): 319 37.
23
In Coopers words: Thinking like an empire was not the same as thinking like a nation-state,
see: F. Cooper, Colonialism in Question: Theory, Knowledge, History (Berkeley/Los Angeles, CA/
London: University of California Press, 2005), 200.
24
Especially Turkish scholarship have produced an impressive scope of research on what is
known as the legislation movement of the Tanzimat. For a review of this literature, see: M.
entop, Tanzimat Dnemi Kanunlatrma Faaliyetleri Literatr, Trkiye Aratrmalar Literatr
Dergisi, 3/5 (2005): 64772. For a detailed, useful study of the administrative reform in the
judicial field, see: E. B. Ekinci, Osmanl Mahkemeleri (Istanbul: Ar Sanat Yaynevi, 2004),
25
R. Cotterrell, Subverting Orthodoxy, Making Law Central: A View of Sociolegal Studies,
Journal of Law and Society, 29/4 (2002): 633. For general introductions of sociolegal studies, see:
R. Cotterrell, Why Must Legal Ideas Be Interpreted Sociologically, Journal of Law and Society,
25/2 (1998): 17192; P. Nureau and A. Arnaud, The Sociology of Law in France: Trends and
Paradigms, Journal of Law and Society, 25/2 (1998): 25783.
26
In a recent analysis and critique of the historical and anthropological scholarship on the
Sharia courts, Agmon and Shahar explain why these courts and their sociolegal contexts have
received little attention until the 1990s and point to the reasons for the emerging interest in
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Ottoman Judicial Change in the Age of Modernity 17

these courts. see: I. Agmon and I. Shahar, Introduction, Theme Issue: Shifting Perspectives
in the Study of Sharia Courts: Methodologies and Paradigms, Islamic Law and Society, 15
(2008): 119.
27
I borrow the term users from de Certeau to denote the interactions of ordinary people with
institutions. See: M. de Certeau, The Practice of Everyday Life (Berkeley, CA: University of
California Press, 1988).
28
For instance: B. Doumani, Rediscovering Palestine: Merchants and Peasant in Jabal Nablus, 1700
1900 (Berkeley, CA: University of California Press, 1995); M. Mundy and R. Saumarez Smith,
Governing Property, Making the Modern State: Law, Administration and Production in Ottoman Syria
(London/New York, NY: I. B. Tauris, 2007); I. Blumi, Rethinking the Late Ottoman Empire: A
Comparative Social and Political History of Albania and Yemen 18781918 (Istanbul: Isis, 2003); M.
S. SaracoGlu, Letter from Vidin: A Study of Ottoman Governmentality and Politics of Local
Administration, 1864 1877, unpublished Ph.D. thesis (Ohio State University, 2007).
29
I. Agmon, Recording Procedures and Legal Culture in the Late Ottoman Sharia Court of
Jaffa, 18651890, Islamic Law and Society, 11/3 (2004): 33377; Agmon, Family and Court: Legal
Culture and Modernity in Late Ottoman Palestine (New York, NY: Syracuse University Press,
2006).
30
F. A. Hayek, Law, Legislation and Liberty, vol. 1 (London: Routledge and Kegan Paul, 1973);
M. Eckardt, Evolutionary Approaches to Legal Change, Thnen Series of Applied Economic
Theory, working paper No. 47 (2004): 9.
31
Hayek, Law, Legislation and Liberty, 65 7.
32
M. ukri, Mahkeme-i Ibtidaiye-i Ilamatn Suret-i Tanzimi Hakknda Mtalat, Ceride-i
Mehakim, 441 (1888): 4879.
33
H. IslamoGlu, Property as a Contested Domain: A Reevaluation of the Ottoman Land Code
of 1858, in R. Owen (ed.), New Perspectives on Property and Land in the Middle East (Cambridge,
MA: Harvard University Press, 2000), 3 61.
34
For studies that shed light on social outcomes of the Land Code in provincial settings, see:
A. Jwaideh, Aspect of Land Tenure and Social Change in Lower Iraq During the Late Ottoman
Times, in T. Khalidi (ed.), Land Tenure and Social Transformation in the Middle East (Beirut:
American University of Beirut, 1984), 33356; A. Rafeq, Land Tenure Problems and their
Social Impact in Syria Around the Middle of the Nineteenth Century, op. cit., 371 96;
Doumani, Rediscovering Palestine; G. Shafir, Land, Labor, and the Origins of the Israeli-Palestinian
Conflict, 18821914 (Cambridge: Cambridge University Press, 1989); E. Rogan, Frontiers of the
State in the Late Ottoman Empire: Transjordan, 18501921 (Cambridge: Cambridge University
Press, 1999); Mundy and Smith, Governing Property, Making the Modern State. For a reevaluation
of this literature, see: A. Aytekin, Hukuk, Tarih ve Tarihyazm: 1858 Osmanl Arazi
Kanunnamesine Ynelik nelik Yaklamlar, Trkiye Aratrmalar Literatr Dergisi, 3/5 (2005):
723 44.
35
For such recent studies, see: M. V. Petrov, Everyday Forms of Compliance: Subaltern
Commentaries on Ottoman Reform, 18641868, Comparative Study of Society and History
(2004): 73059; Agmon, Family and Court; SaracoGlu, Letters from Vidin.
36
For instace: T. Taner, Tanzimat Devrinde Ceza Hukuku, in Tanzimat I (Istanbul: Maarif
Matbaas, 1940), 231; Ekinci, Osmanl Mahkemeleri, 199 201.
37
The analytic framework of legal pluralism has made little impact in the field of Islamic law.
For a discussion of the benefit of applying this approach, see: I. Shahar, Legal Pluralism and
the Study of Sharia Courts, Theme Issue: Shifting Perspectives in the Study of Sharia Courts:
Methodologies and Paradigms, Islamic Law and Society, 15/1 (2008): 11241. For additional
studies that are exceptions in this regard, see: Yilmaz, Muslim Laws, Politics and Society in Modern
Nation States; B. Dupret, What is Plural in the Law? A Praxiological Answer, in B. Dupret
and F. Burget (eds), Le shayke et le procourer: systmes coutumiers et praqtiques jurisdiques an Ymen
at gypte (Paris: CEDEJ, 2005), 15983; B. Dupret, M. Berger, and L. al-Zwaini (eds), Legal
Pluralism in the Arab World (The Hague/Boston, MA: Kluwer Law International, 1999).
38
The term forum shopping describes litigants attempts to select the judicial forum that
would presumably yield the most favorable resolution or judgment. For analysis of legal
pluralism in the late Ottoman judicial field, see: Agmon, Family and Court; Rubin, Ottoman
Modernity.
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18 Ottoman Judicial Change in the Age of Modernity

39

For instance: Agmon, Family and Court; J. Akiba, From Kadi to Naib: Reorganization of the
Ottoman Sharia Judiciary in the Tanzimat Period, in C. Imber and K. Kiyotaki (eds), Frontiers
of Ottoman Studies: State, Province, and the West (London: I. B. Tauris, 2005), 4360; Akiba, A
New School for Qadis: Education of Sharia Judges in the Late Ottoman Empire, Turcica, 35
(2003): 12563; H. S. FeyzioGlu and S. Kl, Tanzimat Arifesinde Kadlk-Naiplik Kurumu,
Tarih Aratrmalar Dergisi, 24/38 (2005): 3153; E. B. Ekinci, Osmanl Mahkemeleri (Istanbul: Ar
Sanat Yaynevi, 2004), 256 97.
40
For instance: H. Gerber, Ottoman Rule in Jerusalem: 18901914 (Berlin: K. Schwarz, 1985),
143; Davison, Reform in the Ottoman Empire, 256.
41
Rubin, Ottoman Modernity, 120 1.
42
R. A. Miller, Legislating Authority: Sin and Crime in the Ottoman Empire and Turkey (New York,
NY/London: Routledge, 2005), 64, 72 8.
43
S. Deringil, The Invention of Tradition as Public Image in the Late Ottoman Empire, 1808
to 1908, Comparative Studies in Society and History, 35/1 (1993): 67.
44
A. Layish, The Transformation of the Sharia from Jurists Law to Statutory Law in the
Contemporary Muslim World, Die Welt Des Islam, 44/1 (2004): 7.
45
A. Bein, Politics, Military Conscription, and Religious Education in the Late Ottoman
Empire, International Journal of Middle East Studies, 38 (2006): 283 301.
46
Dstur 2, vol. 9, 270.
47
See also clauses 39, 51, 58. Dstur 2, vol. 9, 783 794.
48
Apparently, this necessity is valid not only when looking at aspects of social praxis. An
exploration of semiotic aspects reveals that the differences [. . .] between secular and religious
legal systems may be differences in degree and presentation rather than in kind. See: B. Jackson,
A Semiotic Perspective on the Comparison of Analogical Reasoning in Secular and Religious
Legal Systems, in A. Soeteman (ed.), Pluralism and Law (Dordrecht; Boston: Kluwer Academic
Publishers, 2001), 322.
49
Bedir, Fkh to Law, 386.
50
K. H. Karpat, fta and Kaza: The lmiye State and Modernism in Turkey, 18201960, in C.
Imber and K. Kiyotaki (eds), Frontiers of Ottoman Studies, vol. 1 (London/New York, NY: I. B.
Tauris, 2005), 33 4.
51
Employing a power-relations perspective, Huri IslamoGlu aptly describes the passage to a
modern social reality as a process of the making of a new hegemony and undermining of the
old: in the process the old and the new were entangled and administrative practices which were
constitutive of modern social reality were power fields in which the old was cast in the terms
of the new, and the new was continuously formulated to accommodate the old in doing so
transforming it. H. IslamoGlu, Ottoman History as World History (Istanbul: The Isis Press, 2007),
216.
52
Miller, Legislating Authority, 2631.
53
This is evident in the official understanding of justice, see: H. Inalcik, Osmanlda Devlet,
Hukuk, Adlet (Istanbul: Eren, 2000). For a sophisticate analysis of Ottoman Justice as a contested political discourse, see: B. Ergene, On Ottoman Justice: Interpretations in Conflict
(16001800), Islamic Law and Society, 8/1 (2001): 52 87.
54
Miller, Legislating Authority, 31.
55
Ibid., 47.
56
D. Zeevi, Changes in Legal-Sexual Discourses: Sex Crimes in the Ottoman Empire,
Continuity and Change, 16/2 (2001): 21942; L. Peirce, Morality Tales: Law and Gender in the
Ottoman Court of Aintab (Berkeley/Los Angeles, CA: University of California Press, 2003), 119;
H. Gerber, State, Society, and Law in Islam (New York, NY: State University of New York Press,
1994), 604. The indivisibility of these three sources of normative law was evident also in the
common practice of amicable agreements (sulh). See: I. TamdoGan, Sulh and the 18th Century
Ottoman Courts of skdar and Adana, Theme Issue: Shifting Perspectives in the Study of
Sharia Courts: Methodologies and Paradigms, Islamic Law and Societies, 15/1 (2008): 55 83.
57
Rubin, Legal Borrowing and Ottoman Legal Culture, 289.
58
On the hybrid nature of borrowed law, see: A. Watson, The Evolution of Law (Baltimore,
MD/London: The Johns Hopkins University Press, 1985), 94. For a critique on the accepted
tendency to describe Ottoman legal borrowing as a defective imitation of European law, see:
R. Miller, The Legal History of the Ottoman Empire, History Compass, 6/1 (2008): 286 96.
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Ottoman Judicial Change in the Age of Modernity 19

59
Agmon, Family and Court; Agmon, Social Biography of a Late Ottoman Sharia Judge, New
Perspectives on Turkey, 30 (2004): 83 113; Petrov, Everyday Forms of Compliance.
60
E. R. Toledano, As if Silent and Absent: Bonds of Enslavement in the Islamic Middle East (New
Haven, CT/London: Yale University Press, 2007), 38.

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