Law and Legality in the Ottoman Empire and Republic of Turkey

Description

The editors of this volume have gathered leading scholars on the Ottoman Empire and the Republic of Turkey to chronologically examine the sweep and variety of sociolegal projects being carried in the region. These efforts intersect issues of property, gender, legal literacy, the demarcation of village boundaries, the codification of Islamic law, economic liberalism, crime and punishment, and refugee rights across the empire and the Aegean region of the Turkish Republic.

1 The Editors: Introduction
2 Timothy Fitzgerald: Reaching the Flocks: Literacy and the Mass Reception of Ottoman Law in the Sixteenth-Century Arab World
3 Hadi Hosainy: Ottoman Legal Practice and Non-Judicial Actors in Seventeenth-Century Istanbul
4 Michael Nizri: Defining Village Boundaries at the Time of the Introduction of the Malikane System: The Struggle of the Ottoman State for Reaffirming Ownership of the Land
5 M. Safa Saraçoğlu: Economic Interventionism, Islamic Law and Provincial Government in the Ottoman Empire
6 Kenneth M. Cuno: Reorganization of the Sharia Courts of Egypt: How Legal Modernization Set Back Women's Rights in the Nineteenth Century
7 Nora Barakat: Regulating Land Rights in Late Nineteenth-Century Salt: The Limits of Legal Pluralism in Ottoman Property Law
8 Samy Ayoub: The Mecelle, Sharia, and the Ottoman State: Fashioning and Refashioning of Islamic Law in the Nineteenth and Twentieth Centuries
9 Kenty F. Schull: Criminal Codes, Crime, and the Transformation of Punishment in the Late Ottoman Empire
10 Ellinor Morack: Refugees, Locals, and "The" State: Property Compensation in the Province of Izmir Following the Greco-Turkish Population Exchange of 1923
11 Index

Sujets

• Middle Est
• HISTORY
• Histoire
• International law
• History of the Middle East
• Ottoman Empire
• Middle East
• LAW
• Turkey
• International

Informations

• Publié par: Indiana University Press
• Date de parution: 07 janvier 2016
• Nombre de lectures: 0
• EAN13: 9780253021007
• Langue: English
• Poids de l'ouvrage: 1 Mo

Extrait

LAW AND LEGALITY IN THE OTTOMAN EMPIRE AND REPUBLIC OF TURKEY
LAW AND LEGALITY IN THE OTTOMAN EMPIRE AND REPUBLIC OF TURKEY
Edited by Kent F. Schull, M. Safa Sara o lu, and Robert Zens
This book is a publication of
Indiana University Press
Office of Scholarly Publishing
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1320 East 10th Street
Bloomington, Indiana 47405 USA
iupress.indiana.edu
2016 by Indiana University Press
All rights reserved
No part of this book may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying and recording, or by any information storage and retrieval system, without permission in writing from the publisher. The Association of American University Presses Resolution on Permissions constitutes the only exception to this prohibition.
The paper used in this publication meets the minimum requirements of the American National Standard for Information Sciences-Permanence of Paper for Printed Library Materials, ANSI Z39.48-1992.
Manufactured in the United States of America
DOI: 10.2979/lawandlegality.0.0.01
Library of Congress Cataloging-in-Publication Data
Names: Schull, Kent F., editor. | Saracoglu, M. Safa., editor. | Zens, Robert W., editor.
Title: Law and legality in the Ottoman Empire and Republic of Turkey / Edited by Kent F. Schull, M. Safa Saracoglu, and Robert Zens.
Description: Bloomington : Indiana University Press, 2016. | Includes index.
Identifiers: LCCN 2015037652 | ISBN 9780253020925 (pbk. : alk. paper) | ISBN 9780253021007 (electronic)
Subjects: LCSH: Law-Turkey-History. | Turkey-History-Ottoman Empire, 1288-1918.
Classification: LCC KKX120 .L39 2016 | DDC 349.56-dc23
LC record available at http://lccn.loc.gov/2015037652
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Contents
Introduction Kent F. Schull M. Safa Sara o lu
1 Reaching the Flocks: Literacy and the Mass Reception of Ottoman Law in the Sixteenth-Century Arab World Timothy J. Fitzgerald
2 Ottoman Legal Practice and Non-Judicial Actors in Seventeenth-Century Istanbul Hadi Hosainy
3 Defining Village Boundaries at the Time of the Introduction of the Malikane System: The Struggle of the Ottoman State for Reaffirming Ownership of the Land Michael Nizri
4 Economic Interventionism, Islamic Law and Provincial Government in the Ottoman Empire M. Safa Sara o lu
5 Reorganization of the Sharia Courts of Egypt: How Legal Modernization Set Back Women s Rights in the Nineteenth Century Kenneth M. Cuno
6 Regulating Land Rights in Late Nineteenth-Century Salt: The Limits of Legal Pluralism in Ottoman Property Law Nora Barakat
7 The Mecelle , Sharia, and the Ottoman State: Fashioning and Refashioning of Islamic Law in the Nineteenth and Twentieth Centuries Samy Ayoub
8 Criminal Codes, Crime, and the Transformation of Punishment in the Late Ottoman Empire Kent F. Schull
9 Refugees, Locals and The State: Property Compensation in the Province of Izmir Following the Greco-Turkish Population Exchange of 1923 Ellinor Morack
Index
LAW AND LEGALITY IN THE OTTOMAN EMPIRE AND REPUBLIC OF TURKEY
Introduction
Kent F. Schull M. Safa Sara o lu
T HIS EDITED VOLUME is an expansion of the Journal of the Ottoman and Turkish Studies Association s Spring 2015 issue Law and Legality in the Ottoman Empire and Republic of Turkey edited by Kent F. Schull (Binghamton University, SUNY), M. Safa Sara o lu (Bloomsburg University), and Robert Zens (Le Moyne College). It represents the wide range of excellent work being done in the field of Ottoman and Turkish socio-legal history. This volume includes a number of articles that were initially presented as part of a four-panel session at the 2013 annual conference of the Middle East Studies Association (MESA) entitled, Law, Legality, and Legitimacy in the Ottoman Empire. The embedded workshop focused on the complex relationship between law, legality, and legitimacy with the particular goal of understanding the transformation of how law was legitimized over the course of Ottoman history. Twenty-five presenters and discussants participated in the four panels containing topics related to socio-legal history throughout the empire s existence.
Part of the pretext of the workshop was to view law as representing a formal, institutional normative order. The formalization of law is a political and cultural process that requires different groups negotiating how to articulate a formal version of existing norms. This view also adapts David Garland s multidimensional interpretative approach, which sees punishment as an over determined, multifaceted social institution to law, legality, and legitimization. 1 This adaptation allows us to view law, legality, and legitimacy as social artifacts that embody and regenerate wider cultural categories and serve as a means of achieving particular legal ends. Laws, legality, and legitimacy cannot be explained by their instrumental purposes alone, but must also take into account cultural style, historical tradition, and dependence upon institutional, technical, and discursive conditions. They are part of a broader institution, administered by the state, but also grounded in wider patterns of knowing, feeling, and acting that depend upon these social roots for their continuing legitimacy and operation. It is also grounded in history, similar to all social institutions; modern legal codes, practices, and systems are historical outcomes that are imperfectly adapted to their current situation-a product of tradition as much as present policy. There are many conflicting logics that go into law, legality, and legitimacy in any given society. Similar to all social institutions, legal systems shape their environment as much as they are shaped by it. They are not simply dependent variables at the end of some finite line of social and political causation. They interact with their environment, forming part of the mutually constructing configuration of elements that make up the social world. 2
Due to its political nature, law-making requires justification, which comes in the form of legitimacy. Legitimacy, in this context, emerges as a political concept dealing with a particular political/moral question: What gives this (or any) particular law-maker the right to demand what one should obey? The chain of relationship between law, legality, and legitimacy has taken a particular form for several post-enlightenment thinkers. Legality, as something that can be proven through rules of reason, became the basis for legitimacy. 3 While Weber considered this to be one of the defining features of formal justice, the supposed lack of legal formalism in Kadijustiz became the distinguishing feature of societies that rely on substantive justice. The inaccuracy of Kadijustiz -defined as informal judgments rendered in terms of concrete ethical or other practical valuations 4 -has been noted by several scholars, including Iris Agmon, Haim Gerber, Wael Hallaq, Huricihan slamo lu, Baber Johansen, David Powers, Lawrence Rosen, and Avi Rubin. 5
There are at least two factors contributing to the Weberian misperception of the relationship between law, legality, and legitimacy in the Ottoman Empire: it fails to understand the normative consistency in the Ottoman legal system, and it assumes that the peculiar nature of the historical relationship between intellectuals, the religious establishment, and sovereign authority in the Western world is universal. We believe that questioning how law was legitimized in the Ottoman Empire over the long-run can help avoid this misperception and understand the legal transformation of the empire from the perspective of Islamic law and practice, that is why we invited fellow scholars to discuss the peculiar relationship between laws, legality, and legitimacy in the Ottoman Empire.
We hope that this volume will add to the expanding field of Ottoman socio-legal studies. The reception of law by members of society, its utility and application at the local level are key components of its legitimation. Legal practice in the Ottoman Empire s Sharia and Nizamiye courts has received increasingly more attention in the past two decades. In 2008, Iris Agmon and Ido Shahar edited a special issue of Islamic Law and Society on the shifting perspectives in the study of Sharia courts. In their introduction, they noted how these courts received very limited attention prior to the 1990s-the journal, as the editors noted, began its life in 1994 as a testimony to this increasing momentum. 6 Although Bo a Ergene reminds us that Sharia court records were not produced as historical sources; and while these records remain important sources for academic purposes, scholars should avoid making generalizations based on them. 7
In 2011, Avi Rubin noted a similar lacuna on works related to the nineteenth-century Nizamiye courts. 8 Up until very recently our understanding of how these courts functioned was very limited, because of the few records that survive from these courts. While this understanding has somewhat improved thanks to an increasing number of scholars exploring the nineteenth-century provincial judicio-administrative sphere, for the most part, their provincial operations remain a mystery. Proliferating works on the application of law, some included in this volume, point out the complexity of the relationship between legal practices and political economy in the Ottoman provinces. A more nuanced understanding of the complex sets of relations among social actors reveals that it is impossible to think of applied law apart from its social, political, cultural, and economic context.
In addition to exploring law as practiced in the Ottoman Empire, a different but related line of inquiry helps explain how law was legitimized