Ottoman Nizamiye Courts: Law and Modernity

Abstract

AVI RUBIN, Ottoman Nizamiye Courts: Law and Modernity (New York: Palgrave Macmillan, 2011). Pp. 224. $85.00 cloth.This study on the modernization of the Ottoman court system during the late Tanzimat period and the reign of Abdulhamid II (1856-1909) focuses on the nizamiye courts and their relationship with the seriat courts. Through analysis of the official periodical Ceride-i Mehakim (Journal of the courts) as source of discourse and praxis, author Avi Rubin refutes the time-honored notion of dichotomy between the secular-modern state courts and the traditional Islamic kadi courts, long thought to reflect the general indecisiveness and weakness of Ottoman reformist elites vis-a-vis traditional institutions.The introduction to this revised doctoral thesis revisits the historiographical issues regarding Ottoman modernity. The six ensuing chapters then cover the administrative evolution of the nizamiye courts, the intertwined relationship between nizamiye and seriat courts, the domination of legal formalism in the Ottoman judicial system, enforcement of official discipline upon judges, the role of public prosecutors as agents of central authority, and the future research vista in Ottoman judicial history.In the introduction Rubin reviews the critique of the first generation of English-speaking scholars who attributed Ottoman reforms exclusively to European pressure. Although this approach was supported by nationalist historiographies of the Balkan and Middle Eastern states and aggravated by the image of Sultan Abdulhamid as reactionary despot, it has been challenged since the 1970s by postcolonialist approaches, the world-system perspective, translational histories and by the experience of modernity, which rejects the conventional notion of Western countries at the apex of linear evolution. Consequently, according to Rubin, the nizamiye courts should be understood as the product of an amalgamation of Islamic and French judicial traditions, not as replication of the French judicial system.The Ministry of Justice published Ceride-i Mehakim weekly from 1873 onward, reporting civil and criminal cases from across the empire and the decisions of the Court of Cassation in Istanbul. The author justifies its choice as his main research source by showing that it reconstructed daily by addressing a certain agenda regarding the proper administration of justice to an imagined professional community of judges, prosecutors and lawyers and that it operated as a working tool for the use of judicial officials by issuing reports on judicial wrongdoings, notifications and warnings. In other words, it is a kind of archive that allows reading along and against the grain, being source for both discourse and praxis (pp. 13-14).In chapter 1 Rubin shows that this Ottoman instance of international legal borrowing and legal amalgamation was not anomalous but typical. After quarter century of experimentation aimed at creating rational and professional bureaucracy, the Ottoman Provincial Law of 1864 established the administrative context for the development of nizamiye courts. There would be three judicial bodies at the provincial level: the seriat court, the criminal tribune and the commercial court. Underlining the separation between judicial and the administrative powers, the judicial system remained under the control of the Seyhulislam. Whereas the criminal and commercial law were selective adaptations of French law, Islamic law was enforced in the realm of the civil code through the publication of the Mecelle, codification of Hanafite legal tradition.The Code of Civil Procedure, the Code of Criminal Procedure and the Law of the Nizamiye Judicial Organization promulgated in 1879 also were based on Islamic law and French legal texts. In its final shape, the nizamiye court system was structured at three levels: the courts of the first instance (bidayet mahkemesi), the courts of appeal (istinaf mahkemesi) and the Court of Cassation (Mahkeme-i Temyiz). …