Reforming the Sharita Courts at the Close of the Ottoman Empire: an Ottoman Project in the Spirit of Western Colonialism

A broad review of the status and functioning of shari^ta courts (or shari^ta coun­cils, as they were called) in the Ottoman Empire prior to the modern era is beyond the scope of this chapter.

Following the establishment of nizamiye courts, the shari^ta courts were turned, in practice, into family courts whose jurisdiction was restricted to mat­ters of personal status and the regulation of endowments (awqdf). Although the substantive law applied by the shari^ta courts was officially reformed only in 1917, on the eve of the dissolution of the Ottoman Empire, even prior to the publication of the new code of personal status (the Ottoman Law of Family ^{[276] [277] Rights of 1917, henceforth Olfr),[278] [279] the shaπta courts were greatly affected by the reforms implemented in other areas of the law.M Some of the new codices that were promulgated, such as the MeJelle,[280] were also implemented in shaπta courts.}

The tanzιmat have been revisited in recent years by scholars studying the Ottoman Empire. These wide-reaching reforms are no longer perceived as a simple process of “Westernisation” but rather as a pronounced “Ottoman proj­ect” that occurred against the background of a longstanding, rich tradition of implementing administrative reforms and amendments?^[282] This new perspec­tive aims to show that even if the tanzιmat reforms were carried out under Western inspiration, they assumed an “Ottoman guise”: the models were pro­cessed and adapted to the circumstances, cultural perceptions, and social, eco­nomic, and political structures that existed in the empire?^[283]

Even if we accept this new approach to understanding the tanzιmat reforms (which this writer does), it cannot be disputed that they were effected under Western inspiration and that practices and perceptions that were prevalent in the colonial space were also prevalent in the nineteenth-century Ottoman Empire?^[284] The reformers, who belonged to the empire's intellectual elite - most of whom were educated in the West - had internalised Western perceptions of the sharf^ta as being an outdated, anachronistic legal system. As a result, when taking on the task of modernising shaπ^ta law, they tended to imitate Western models. As has been noted by many postcolonial scholars, these models were based on notions of modernisation - and even more so, on practices of mod­ernisation - that were conceived, developed, tested, and applied in the colo­nial context.^[285]

In the spirit of postcolonial scholarship, I would like to further argue that the process the sharf^ta underwent during the tanzιmat reforms is to a large extent reminiscent of the modernisation, codification, and bureaucratisation processes experienced by other customary legal systems under colonial rule.

The attribution of an ossified character to Islamic law fit general Western conceptions of non-Western societies as either dormant (simple societ­ies) or stagnant (traditional civilizations) until the enlivening moment of Western contact or colonization.^{[286] [287] [288] [289] [290]}

A detailed examination of the processes that led to the shaping of “modern” shari'a law, as reflected in the Ottoman codes promulgated during the pe­riod of the reforms, shows a parallelism with that of “customary” laws being studied by legal anthropologists. Thus, for example, the colonial officials who participated in the codification of the customary legal system in Tanganyika perceived the results of their labour as

not a new system invented by us, but a continuation of the judicial func­tions of native authority, which have existed ever since the emergence of those units possessing a common language, a single social system.22

In like manner, the Mejelle commission was of the frank opinion that “there was no need to establish a civil law in the Ottoman Empire, because such a law was already in existence, and all it needed was a convenient and orderly reediting.”2³ As Messick shows, the Mejelle in fact diverged fundamentally from shari'a law prior to its promulgation and brought about deep, far-reaching changes in the way in which knowledge, justice, and law were perceived?⁴ That being the case, one sees that the creation of the Mejelle and of customary law in Tanganyika shared a marked common denominator: legislators produced codes of laws that were, by and large, a “new creation” that changed prevailing customs and imparted new cultural perceptions, while viewing and present­ing it as an old, unchanged legal system.

I do not seek to argue that the shaπ^ta is a new creation that was shaped only in the nineteenth or twentieth century. Such an assertion would be as absurd as contending that the African tribes did not possess mechanisms for the resolution of conflicts and the maintenance of social order prior to their territories being occupied by the colonial powers. Furthermore, legal codes do not appear out of nowhere, neither in Tanganyika nor in Istanbul nor even in Jerusalem. Obviously, traditions cannot be presented as ancient if they have nothing in common (both procedurally and substantively) with the conven­tions and norms prevailing prior to their creation. Nonetheless, following in the footsteps of Messick, I would like to argue that Ottoman reformers ap­proached sharf^ta law in a “colonial state of mind,” and this largely shaped the characteristics of the reforms they introduced.^{[291] [292] [293] [294]}

Thus, the code designated for the sharf^ta courts, the Olfr of 1917 (which was promulgated together with the new Ottoman Code of SharTa Procedure)/⁷ was based on the eclectic expedient embraced by the Ottoman legislators in order to “adapt it to the spirit of the time.”2⁸ It drew from the four major schools of religious law within Sunni Islam, as well as from minority opinions that at times were chosen arbitrarily from various schools/⁹ and hence consti­tuted a revolutionary code of Muslim family law. As Messick shows, this closed formal code, which was promulgated with the sultan's signature, replaced the open flexible religious law developed by Islamic legal jurists. Statutory law thus came to replace jurists' law, and abstract analytical categories replaced the an­alogical case-specific thinking that had previously characterised the shari^ta.

Furthermore, the Olfr was revolutionary from another perspective: the Ottoman reformers who compiled it aspired to turn it into a general fam­ily law that would apply to all the subjects of the empire, both Muslim and non-Muslim. Indeed, out of a total of 157 articles, about 30 relate specifically to Jews and Christians. Article 155 of the law explicitly declares that any provision of the law that is not specified as an exception is applicable to all the subjects of the empire. Moreover, Article 156 revokes the legal authority of “spiritual leaders” (i.e. “non-Muslim religious functionaries”) in the matters of personal status of the members of their communities. It transpires, therefore, that the promulgation of the Olfr constituted a first step on the path to dissolving the Ottoman millet system and replacing it with a uniform family law applicable to all subjects of the empire.

Under the Ottoman Empire, the Olfr was never implemented in Palestine. It was, however, adopted in 1919 by the British Mandate authorities as the code that bound shari^ta courts. Because the process of reforming family law was not completed by the Ottoman reformers prior to the dissolution of the empire, this - together with the development of relevantjudicial mechanisms - became the inheritance of its successors, the colonial regimes and the nation-states that were established on its ruins. As shall be elaborated below, the British au­thorities in Palestine chose to implement some of the principles of the reform, while ignoring others.

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