Mehmed II, the conqueror of Constantinople, is also known as the ruler who transformed the Ottoman State into an empire. One of the greatest powers upon which this state based itself was, naturally, its legal system. Had it not established a legal system that included all subjects, it would not have been possible for the Ottoman State, which stretched over three continents, to gather the members of three religions, more than twenty religious sects, and an equivalent number of ethnic groups under its structure, or to survive for approximately six hundred years. In this respect, it can be said that Ottoman law played a determining role in the long-term existence of the Ottoman State, one of the most remarkable empires in world history, and that it helped to shape its imperial identity and structure.
The most significant role in the development of the Ottoman legal system and its institutions was played by Mehmed II. As the capital city of the Ottoman State for four and a half centuries, Istanbul served as the location of this development. Of course, it cannot be said that the Ottoman legal system was a system that was completely sui generis, with unique institutions and regulations, as is the case for Islamic, Roman, and Anglo-Saxon laws. Ottoman law, however, represents the culmination of the enrichment of six centuries of interpretations and the most developed form of Islamic law, which had been theoretically established and had completed its development in practice long before the Ottoman legal system was formed. In this regard, Ottoman law deserves to be dealt with separately in the history of Islamic law.
It is worth examining the role of Mehmed II and Istanbul in the shaping and the application of Ottoman law in several respects. Mehmed II played an undeniable role in the emergence of örfi hukuk (customary law) and in shaping the legal compilations in kanunnames (law codes). Imperial edicts related to every area of law, in particular penal, land, and tax law, which previously had been issued in a disorganized fashion, were compiled in general kanunnames for the first time during the reign of Mehmed II; thus, a tangible step was taken towards the development of Ottoman customary law into a well-coordinated legal system. During this period, a special kanunname was issued; this was both in the form of a general kanunname, while also being related to constitutional law and was the first known example in this category. The Divan-ı Hümayun (Imperial Chancery of State), which played the most important role in the issuance of kanunnames, was essentially formed during the era of Mehmed II; it continued to function, for the most part, from Istanbul. The main structure of the state, from where members of the Divan-ı Hümayun were selected, its principles of operation, and rules of protocol were established in the kanunname prepared upon the order of Mehmed II. Nişancıs (officers who inscribed the sultan’s imperial monogram on official documents), who played a leading role in the development of örfi hukuk and the issuance of kanunnames, also worked as members of the Divan-ı Hümayun.
The kanunnames come to the fore as compilations that not only bring together the rules of Islamic law as laid down in the books of fiqh (Islamic law), but also the rules of customary law that were established by the sultans. Moreover, the kanunnames were of the utmost importance for the consistent application of Ottoman customary law in accordance with the principle of the rule of law. Special care was paid to the harmonious application and mutual agreement between örfi hukuk, developed from imperial edicts, and Islamic law, which constituted the basis of the Ottoman legal system. Central to the creation of this harmony were the sultans’ personal interest in the law and the selection of nişancıs from among the müderris (professors) of Islamic law, particularly in the early centuries; these latter played a decisive role in the formation of örfi hukuk. In addition, the employment of lawyers who were well acquainted with religious law as the Rumelian and Anatolian kazaskers (military judges) in the divan (sultan’s council) and the combined efforts of the sheikhs al-Islam, the most important representatives of Islam and Islamic law, played important roles in the formation of a cohesive law.
Sheikh al-Islam Ebussuud Efendi’s role in establishing the basic foundations of the Ottoman legal system is particularly remarkable. On the one hand, he established how the principles of Ottoman land law should be included in Islamic law by writing a prologue to the Kanunname of Budin; on the other hand, the imperial edicts he put into practice were shaped by Islamic law in accordance with social conditions. He did this by putting into effect fatwas that compiled different views within Islamic law (ma‘rûzât) via the sultan’s edicts, thus introducing measures that adapted Islamic law according to social conditions. In other words, while bringing örfi (customary) law closer to the şer’i (religious) law, Ebussuud Efendi brought the sultans’ role in the application of şer’i law to the fore. To a certain extent, religious law was “legalized”; in other words, religious law, which was a law of individual judicial opinions, was transformed into a law of statutes. At the very least, Ebussuud Efendi opened the way for this to happen.
LEGAL INSTITUTIONS AND THE LAW IN ISTANBUL
Divan-ı Hümayun/Imperial Chancery of State
After this general introduction, this article will now examine the Ottoman institutions of law centered in Istanbul, their operations in general, and the general framework that they contributed to the entire state. The Divan-ı Hümayun comes at the top of the list of these institutions. After the conquest of Constantinople, the Divan-ı Hümayun, which was the most important political decision-making body, and the highest judicial institution, met in Istanbul or in whichever city the sultan resided when he was not in Istanbul. It can be said that the Divan-ı Hümayun was the most developed form of the central assemblies seen in Islamic states after the time of the Abbasids. Since the Divan-ı Hümayun was a political, administrative, and military decision-making body, administrative decisions were made there on matters relating to general governance, military and political decisions like declaring a war or signing a peace treaty, and financial decisions like determining and collecting taxes. Likewise, as it was a high-level judicial institution, the Divan-ı Hümayun also served as a courthouse for the initial and final stages of trials. In addition, the Divan-ı Hümayun served as a legislative body, making decisions on customary law and preparing regulations. The divan had a structure in keeping with the multi-dimensional activities it performed. This council, initially presided over by the sultan himself, began to be presided over by the grand vizier on behalf of the sultan after the reign of Mehmed II. Since the Divan-ı Hümayun was the council of the sultan, it would meet in a place where the sultan could observe the proceedings, even if he was not visibly present at the council meeting.
Meşihat/The Office of the Sheikh al-Islam
Even though Molla Fenari, considered to be the first sheikh al-Islam, was referred to by this title before the conquest of Constantinople, after this time the title changed from being a personal title to an institutional one, and maintained this status until the end of the Ottoman State. The way this title was first used indicates that the meşihat-ı Islamiye (office of the sheikh al-Islam) first entered into the Ottoman religious-legal system in Bursa, beginning with Fahreddin Acemi. The office of the sheikh al-Islam that was based in Istanbul played a distinctive role in shaping Islamic-Ottoman law and in the application of the same. The office of the sheikh al-Islam was not only considered to be the head of the ulema, but also the post that issued fatwas; Molla Hüsrev (Feramurz b. Ali), who held the office of sheikh al-Islam for more than twenty years, is remarkable for the works he contributed to Islamic legal literature in the Ottoman era. In particular, his commentary Gurer, which he wrote about his own work Dürer, was taught in the madrasas as a textbook for many years, as well as being used as a source of information; later this was validated as a code of law. When the office of sheikh al-Islam was transformed into a government institution in the sixteenth century, the most important representatives of this transformation—Ibn Kemal (to a certain extent), Çivizade, and more particularly Ebussuud Efendi—played remarkable roles in shaping Ottoman law with the fatwas they issued while in this position.
While at first the sheikhs al-Islam played an effective role in shaping religious and to a lesser degree customary law by issuing fatwas to solve religious-legal problems, the office of the sheikh al-Islam came to greater prominence starting with Ebussuud Efendi. Under him, the office began to control müderris (teachers/professors at madrasas) and qadi (judges) appointments; in this way, this post started to become an effective administrative-judicial institution. In the following centuries this administrative-judicial aspect of the office of the sheikh al-Islam gradually came to the fore. While maintaining customary laws, it is known that from this period onward, on occasion the opinion of the office of sheikh al-Islam was asked, and from time to time the sheikhs al-Islam opposed some customary laws because they contradicted Islamic law, the dominant legal system.
In another indication of the growing importance of the office, after 1838 the sheikh al-Islam began to fulfill a number of other important roles that had formerly been carried out by others. These included presiding over the Çarşamba Divanı (Wednesday Councils), which had formerly met under the leadership of the grand vizier or kaymakam (deputy governor), and which the qadis of Istanbul also attended, and over the the Huzur Murafaası (court hearings held in the presence of the sultan) at the Cuma Divanı (Friday councils), which the Rumelia and Anatolia kazaskers attended. In 1861, the court hearings in the presence of the sultan became institutionalized as the Meclis-i Tetkikât-ı Şer’iyye (the Council of Religious Investigations);1 in time, the şer’iyye mahkeme (religious courts) became the temyiz mahkeme (courts of appeal).
Law Schools / Colleges
After the conquest of Istanbul, one of the first activities that Mehmed II did in order to help the city become worthy of being the capital was to establish a madrasa in order to educate the scholars and jurists needed by the empire. The first madrasa that was established by Mehmed II after the conquest was the Hagia Sophia madrasa. The date on which the Hagia Sophia madrasa was established is the basis for determining the foundation date of Istanbul University; that is, 1453.2 The külliye or mosque complex of the Sahn-ı Seman Madrasa, which consisted of eight sections, was established in 1470 by Mehmed II; the location was between the Church of Disciples on the right and Fatih Mosque. This madrasa held an important place among the higher education institutions that were centered in Istanbul. The Sahn-ı Seman Madrasa was followed by other madrasas established in various periods; in particular, the madrasa established in 1557 by Süleyman I around the magnificent Süleymaniye Mosque is remarkable. Even though the traditional Islamic sciences were generally taught in these madrasas, other sciences, such as philosophy, logic, and rhetoric, were also taught. In some madrasas, particularly after the seventeenth century, mathematics, astronomy, and medicine were also taught. Fiqh had a special place among the Islamic sciences. Throughout the long Ottoman history, madrassas were institutions in which important men who practiced Ottoman law, in such posts as qadi, naib (substitute judge), mufti, or muderris, were trained.
These madrasas were classified in accordance with the daily wages paid to the müderris who worked there: there were otuzlu (thirty-akçe) madrasas, kırklı (forty), ellili (fifty), or altmışlı (sixty). The madrasas that paid wages of sixty akçe can be compared to the higher educational institutions of the modern world. Madrasas with lower wages played the role of preparatory institutions, and complemented higher madrasas like the Sahn-ı Seman or Süleymaniye. In Istanbul there were seven altmışlı madrasas; these were the equivalent of university educational institutions.3 Those who graduated from these institutions would be appointed as qadis after passing through a mülazemet (internship period). After gaining experience and improving their knowledge in the field, the final stage of their educational process would be to work in the offices of the Istanbul qadi or kazaskers. Thus, these latter institutions can be considered as the law schools of the period. In addition, some of the graduates of these schools, after their mülazemet period, would return to educational institutions as a muderris.
When modernization began, the madrasas in various cities of the Ottoman State, particularly those in Istanbul, continued to train lawyers within the framework of the curricula that had been practiced up to that time. On the other hand, after the Tanzimat period, during the period that lasted until the establishment of modern law schools, a new type of law school, which introduced different methods of education, began to be established. The first examples of these schools were in Istanbul; Istanbul University Law Faculty is an early example of a modern law school established in this city.
It can be said that the roots of the courts in Istanbul stretch back to the period before the conquest. It is known that long before the conquest mosques had been built within the city walls in order to meet the needs of the Muslims who visited Constantinople. Although the mosque known as the Arab Mosque is thought to be a work from this period, this was most likely a church that had remained from the period of Latin rule, and was later transformed into a mosque by Mehmed II. In addition to these mosques, the existence of a court building in this period is also mentioned in some sources.4 It is also reported in the sources that after placing Constantinople under siege, Bayezid I (the Thunderbolt) forced the Byzantine emperor to accept his terms and build some mosques and a district for the Turks within the city walls. Evliya Çelebi mentions that one of these terms was the construction of an Islamic court.5 It is also possible that the court building mentioned by Evliya Çelebi was the one established by Bayezid I for Muslims residing in the district of Üsküdar.
Throughout the history of the Ottoman State, the court buildings established after the conquest in Istanbul played an important role in the social and legal lives of the people residing both in the city and throughout the territory. It is known that Hızır Çelebi Bey was appointed to the position of qadi of Istanbul after the conquest. After serving six years in this position Hızır Bey passed away; this duty was then entrusted to Molla Hüsrev, who was later to become sheikh al-Islam.6 The position of the qadi of Istanbul was the highest-ranking post, also referred to as a mevleviyyet. The qadi of Istanbul was fourth in the judicial hierarchy, coming after the sheikh al-Islam and the kazaskers of Rumelia and Anatolia. In terms of its judicial organizational structure, Istanbul was divided into four kadılık (judicial districts), which were then divided into smaller sub-divisions (naiplik). These four main regions, which were called Istanbul and the Bilad-ı Selase (the Three Provinces) consisted of Istanbul (Istanbul within the city walls or Nefs-i Istanbul), and the districts of Üsküdar, Galata, and Eyüp (Havass-ı Refia).
While the kadılık of Nefs-i Istanbul functioned as the only court until 1586, four more courts which were affiliated with the office of the Istanbul qadi were established after that year. And four naibs, who judged on behalf of the qadi of Istanbul and carried out other administrative/judicial tasks, were appointed to these four courts by the qadi of Istanbul. These were the courts of Mahmutpaşa, Davutpaşa, Ahi Çelebi and Balat.7 While the kadılık of Üsküdar worked under the authority of the kadılık of Gebze until the first half of the seventeenth century, it subsequently changed into a separate kadılık and became a mevleviyyet when the districts of Şile and Kandıra were added towards the end of the seventeenth century. According to Evliya Çelebi, there were five naibs (deputy qadis) working in Kartal, Pendik, Gebze, Şile, and Anadolukavağı; these were under the authority of the Üsküdar qadi. The area of responsibility and authority of the office of the Galata qadi included the residential areas on the Rumelian coasts of the Bosphorus up to the Kırkkilise (Kırklareli) sanjak and Kapıdağı Peninsula, near the Bandırma district. Although the court of Galata presided over all kinds of trials, it appears to have been a court that was primarily concerned with resolving disagreements about maritime trade, due to the region’s importance in Ottoman maritime trade. The districts of Çekmece, Çatalca, and Silivri were within the borders of the district of Eyüp. In addition to these districts, a naib of the qadi of Eyüp worked in Hadımköy, Büyükçekmece, Küçükçekmeceler, Terkos, and Uzunova. The Eyüp court represented a court that usually dealt with trials related to water disputes.
In general, the office of the qadi of Istanbul took care of the legal problems of Istanbul’s residents. This however, was not an absolute rule. There were times when, based on an imperial edict, the qadis of Istanbul would preside over lawsuits for people who did not reside in Istanbul. Although the qadis of Istanbul and Bilad-ı Selase had similar responsibilities and authority in both judicial and administrative/civil matters, some legal and administrative tasks and authorities fell exclusively to the Istanbul qadis due to their central position in the Ottoman judicial organization. For example, the qadi of Istanbul was the only authority in the sales of certain licenses, such as trading in flour, bread or fine bread rolls, etc. Later, the authority of trading with any state license was left, in general, to the qadi of Istanbul.8 Fixing the prices of food items, such as milk, vegetables, wheat, flour, or bread, and other basic consumer products, such as timber, textiles, fezzes, or shoes, in both Istanbul and the Bilad-ı Selase also fell among the tasks of the Istanbul qadi. He would sometimes go out on inspections along with the grand vizier after the Çarşamba Divanı and sometimes he would carry out this task himself with his entourage. During such inspections, those who did not adhere to the fixed prices, those who made incomplete measurements, or those who were negligent of cleanliness in their bakeries or restaurants would be warned and punished with the proper penalties.9 Since all non-state buildings were made from timber, fires were an important risk throughout Istanbul’s history. Qadis also had the important responsibility of taking precautions related to cleaning chimneys in order to prevent fires, ensuring that materials which might lead to a fire were not left lying around, and preventing eaves from being constructed too close together, which was a significant factor in the spread of fires. Imperial edicts related to the precautions taken in relation to fires can quite frequently be seen in the şer’iyye sicilleri (court registers).10
By the nineteenth century the qadis of Istanbul, like all other qadis, would hear cases in their private mansions. This practice changed in 1253 (1837/1838) and qadis started to hear cases in special places reserved for them within the structure of the office of the sheikh al-Islam, just like the kazasker courts.
Of course, the primary job of the qadis of Istanbul and Bilad-ı Selase was related to the law. If the cases brought into their courts were related to religious law, they would judge them in accordance with the rules of Islamic law, as laid down in the fiqh books; if the case was related to customary law, the qadi would rule in accordance with the rules of customary law, as stated in the kanunnames. Moreover, the qadis also worked in the Çarşamba Divanı, which were held in the grand vizier’s mansion on Wednesdays, and heard cases in the presence of the grand vizier or his kaymakam. The registration of many legal actions, such as the establishment of waqfs (religious foundations), the emancipation of slaves, changes to wills, the division of inheritance, business transactions, rents, and proxy agreements were among the duties carried out by the qadi. Similarly, marriage contracts, most of which were recorded by a public notary or carried out by government officials of the marriage and census registrar, can also be added to this list.
The Istanbul and Bilad-ı Selase qadis also had certain administrative duties, such as the inspection of the markets and bazaars, the inspection of goods and the quality of the goods, controlling the prices, and many other duties that are carried out by the municipalities today. The qadi of Istanbul (also known as the Istanbul Efendisi) would sometimes inspect the markets and bazaars in person, while at other times officials known as muhtesib would do this job on his behalf. The qadi of Istanbul had naibs who worked in certain wholesale markets, such as Yağ Kapanı (oil marketplace) and Un Kapanı (flour marketplace). Sometimes the qadi of Istanbul would appoint an ayak naibi (assistant judge) to inspect the market places. Evliya Çelebi uses the phrase çarşı gammazları (market informers) in lieu of ayak naibi.11 These officials had the important responsibility of monitoring fixed prices and inspecting merchants’ weights and scales. These administrative, civil, municipal, and disciplinary responsibilities and authorities continued until 1826; in that year, the muhtesib (superintendent of guilds and markets), who assisted the qadi in his duties, was appointed as the ihtisab (public order) minister. The aforementioned responsibilities and authorities of the qadi were then transferred to the ministry of ihtisab. There are many records in the şer’iyye sicilleri regarding the administrative and civil services that the qadis provided before 1826.
According to the classification of the registers found in the şer’iyye sicilleri archives, part of the office of the Mufti of Istanbul, twenty-seven courts were established over time in Istanbul. These were as follows:
- The Istanbul court
- The Istanbul Bâb court
- The Kasımpaşa court
- The Evkaf-ı Hümayun Müfettişliği (Inspectorate of Imperial Endowments) court
- The Kısmet-i Askeriye (Military Division) court
- The Üsküdar court
- The Ahî Çelebi court
- The Davutpaşa court
- The Bakırköy court
- The Kartal court
- The Princes’ Islands court
- The Beykoz court
- The Bilad-ı Metruke court
- The Galata court
- The Havass-ı Refia court
- The Mülga Beledi Kassamlığı court
- The Balat court
- The Yeniköy court
- The Hasköy court
- The court of the office of the Rumelia Kazasker and Rumelia Sadareti
- The Mahfel-i Şer’iyat (High Sharia court)
- The Anadolu Sadareti (office of the Anatolia kazasker) court
- The Beşiktaş court
- The Tophane court
- The Mahmutpaşa court
- The Evkaf Muhasebeciliği (Foundations Accountant) court
- The Beytülmal Kassamlığı (Public Treasury) court
Another type of court that existed in Istanbul was the religious courts of the Jewish and Christian subjects; these were in charge of personal legal cases for these citizens, such as marriage, divorce, alimony, or inheritance. These courts, also known as Cemaat Mahkemesi, would preside at institutions belonging to the non-Muslims in areas determined by the patriarchate or the office of the chief rabbi. In fact, non-Muslim residents of the Ottoman State had to take most cases, including those related to personal matters, to the Ottoman courts. It did not matter whether the disputes were among themselves or with Muslims, Islamic-Ottoman Law would be applied in the trial. In accordance with the Islamic legal tradition, however, in certain areas, such as marriage and divorce, due to the religious nature of such cases, the Ottoman government acknowledged judicial-legal autonomy for non-Muslim citizens. In such areas, non-Muslim citizens had the right to choose to go to their own religious community courts and request to be judged in accordance with Jewish law or canon law. On the other hand, it was not absolutely necessary for them to go to their own religious community courts. If the parties of the trial agreed, they could go to the religious community courts; if they disagreed, or if one of the parties was Muslim, then they would take cases related to personal law or, for example, cases related to penal law, the law of obligations, and commercial law to the courts of Istanbul. In such trials, the rules of Islamic law would be applied. In other words, taking their cases to religious community courts was left to the choice of non-Muslims. On the other hand, it is a fact that non-Muslim religious leaders established authority over their religious communities by means of these courts and they acquired a good source of income via these court fees. Thus, the head rabbis and patriarchs took measures that prevented non-Muslims from going to the Istanbul courts for cases related to personal issues; at times, the Istanbul courts tried to acquire imperial edicts which would ban the applications of non-Muslims in such cases. Despite all the measures taken both within and outside the religious community, there are a large number of records concerning non-Muslim cases concerning personal issues being heard in the şer’iyye sicilleri.
Another type of court in Istanbul was the consulate court; there were a number of these courts attached to the foreign consulates. These courts were established within the framework of the privileges granted with the capitulations; as their number gradually increased, cases concerning foreign nationals were tried in accordance with their own laws. The existence of the consulate courts continued until 1914; in that year the Ottoman government unilaterally abolished the judicial capitulations, thus removing the judicial authority of the consulate courts.
The High Courts
It should not be forgotten that within the city walls there were essentially two types of courts in Istanbul. Along with the judicial institutions known as the Istanbul courts, there were other judicial institutions that can be described as high courts; these include the Divan-ı Hümayun, kazasker courts, the Cuma Divanı, the Çarşamba Divanı, etc. The verdicts in cases decided in local courts were reevaluated in these courts, which functioned as an appeals court. Since Istanbul was the capital city of the Ottoman State, it was natural that there were courts in the city with extraordinary powers and which could give verdicts on judicial disputes from all over the territory.
The Divan-ı Hümayun came to prominence by overseeing verdicts from all Ottoman courts throughout the territory, thus ensuring justice and judicial stability; this was in addition to the court’s role in the development of customary law, as mentioned above. The Rumelia and Anatolia kazaskers, who were in the highest position of the Ottoman judicial hierarchy, were members of this council. Essentially, the kazasker of Rumelia and sometimes the kazasker of Anatolia would hear legal disputes from all over the territory, acting as a first-degree court; they would also hear other cases, acting as the highest court of law. The Divan-ı Hümayun would meet in a special section of Topkapı Palace, the Kubbealtı, after the dawn prayer and continue to work until finishing all the necessary administrative, political, and judicial tasks.
The Divan-ı Hümayun was not the only council that operated and had the authority to judge in Istanbul. Some of the complaints and legal disputes that were not judged in this council would be judged in the Cuma and Çarşamba Divanı councils that assembled under the direction of the grand vizier. In this respect, both councils can be regarded as high courts. The Rumelia and Anatolia kazaskers would attend the Cuma Divanı, while the qadis in Istanbul (i.e. qadis of Istanbul and Bilad-ı Selase) would attend the Çarşamba Divanı. The kazaskers and qadis would settle legal disputes. The Cuma Divanı and Çarşamba Divanı would hold their meetings at the mansion of the grand vizier. As a consequence, when the grand vizier changed, the location of the councils also changed. These councils were later transferred to the office of the sheikh al-Islam and started to meet under his leadership.
Another high court in Istanbul was the court of the kazasker of Rumelia. The Rumelia kazasker held sessions not only at the Divan-ı Hümayun on the days it convened, but also on other days in his mansion. It can be understood that the court of the Rumelia kazasker would hold sessions which operated as first courts for some types of trials, and that certain legal disputes would be referred to this court directly. It was also considered that the kazasker’s court would function as a high court that reexamined verdicts from other courts. An officer of the Rumelia kazasker known as the miri katib also worked at the defterdarlık (revenue services) court, which tried financial cases and in the office of the başbaki kulu (tax inspector). This court would also try cases concerned with the inheritance and finances of government officials. These cases would be held between the defterdarlık and the people involved.12
It can be seen that after the nineteenth century, the office of the Anatolia kazasker started to hear cases as a high-degree court. The kazaskers did not have a special building for this purpose until the nineteenth century, prior to which time their private mansions also functioned as a court building. Therefore, when a kazasker was replaced, the location of the court of the kazasker also changed. This situation continued until 1253 (1837/1838); after that year, the kazasker courts took up a permanent place in the Ağakapısı külliye, which was reserved for the sheikh al-Islam; in other words, these courts were part of the külliye where the Istanbul mufti’s office is located today.
THE PERIOD OF WESTERNIZATION/MODERNIZATION
The classical structure, institutions, and practice of Ottoman law did not undergo radical changes until the period of Westernization that started with the declaration of the Tanzimat. From this time onward, radical changes took place in terms of both the legal codes and the courts that would apply these laws. As the capital, Istanbul naturally led the way in these changes.
The changes that took place in relation to the codification of the law during this period included formal novelties (such as legislation being written in the form of articles and expressed in comprehensible and plain Turkish), while also including radical changes in terms of the substance of certain fields of law. In such a way the 1858 Arazi Kanunnamesi (Land Code), the 1868–1876 Mecelle-i Ahkam-ı Adliye (Civil Code), and the 1917 Hukuk-u Aile Kararnamesi (Family Law Code) codified the rules that had been practiced as religious and customary laws in matters of land law, the law of obligations, property law, the law of procedures, and family law. The codes of the 1850 Ticaret Kanunnâme-i Hümayunu (Imperial Commercial Code), the 1858 Ceza Kanunu (Penal Law), 1861 Usul-i Muhakeme-i Ticaret Nizamnâmesi (Regulations of Trade Procedure), 1863 Ticaret-i Bahriye Kanunnâmesi (Code of Maritime Trade), the 1879 Usul-i Muhakeme-i Cezaiye (Code of Penal Law Procedure), and the Usul-i Muhakeme-i Hukukiye (Law of Civil Procedure) were prepared on the basis of French legal codes. In the field of judicial organization a new court structure with collective judges was established, though this did not apply to the şer’iyye courts; at the same time, a multi-court system, consisting of penal, civil, and commercial courts, was established in parallel with the increase in and diversification of legal problems. These radical changes formed the basis of the legal reforms that would continue in Ankara after the foundation of the Republic of Turkey.
Law Schools in the Westernization Period
In the period of Westernization, new law schools began to be established alongside the classical educational institutions, the madrasas, in order to fulfill the courts’ needs for all types of legal experts, including judges. The first such school was the Muallimhane-i Nüvvab (School for Substitute Judges), established in 1854. This school was also known as Mekteb-i Nüvvab (School for Deputy Judges), Mekteb-i Kudat (School for Judges), and Medresetü’l-Kudat (College for Judges). In addition to this school, which mostly served to train judges for the şer’iyye courts, a new Hukuk Mektebi (Law School) was also established, which originally served to train jurists for the Nizamiye courts. Later, it became the law school at Istanbul University, thus fulfilling the need for jurists and judges in the new republic.
The Hukuk Mektebi was first opened as part of the Mekteb-i Sultani (Imperial School) in the district of Galata.13 However, it would be difficult to state that this school was the equivalent of a university in terms of its level of education. Subsequent to this, the Darülfünun-ı Sultanî Hukuk Mektebi was opened by imperial decree in 1874; however, this was only announced publicly in 1876.14 The Hukuk Mektebi, which suspended education in 1877, restarted in 1878; however, it is probable that it closed after the matriculation of the first graduates in 1881. The Mekteb-i Hukuk-ı Şâhâne, which was established as part of the department of justice, replaced this institution in 1880. This school provided educational services as part of the Department of Justice until 1888 and then in that year it was connected to Maarif Nezareti (the Ministry of Education). The Hukuk Mektebi, which continued to function under this structure, became a branch of the Istanbul Darülfünun in 1909.15 In 1933, the name of the Darülfünun changed to Istanbul University. During this transformation, 157 faculty members were dismissed because they did not agree with the new management. Fourteen of these were faculty members from the Law School. Similarly, during this period, some Jewish scholars who had fled Hitler’s Germany started to teach at Istanbul University’s Law School. Andreas B. Schwartz, Ernst Hirsch, Richard Honig, and Karl Strupp were among them.16
Istanbul University’s Law School, the foundation of which can be traced back to the Hagia Sophia and Sahn-ı Seman madrasas, continues to exist as the oldest and most well-established functioning department of law in Istanbul today. Istanbul University was followed by Marmara University’s Law School, established in 1982, and Galatasaray University’s Law School, established in 1994. After these law schools, many private universities established law schools after the introduction of constitutional regulations in 1982. As of 2013, there were twenty law schools at private universities in Istanbul: at Doğuş University, Istanbul Aydın University, Istanbul Bahçeşehir University, Istanbul Beytepe University, Istanbul Bilgi University, Istanbul Maltepe University, Istanbul Medipol University, Istanbul Ticaret University, Kadir Has University, Kemerburgaz University, Koç University, Kültür University, Fatih University, Fatih Sultan Mehmet University, Okan University, Özyeğin University, Istanbul Şehir University, Türk-Alman University, Yeditepe University, and Yeni Yüzyıl University.
Courts in the Period of Westernization
During the period of Westernization the first courts with collective judges started to be established alongside the şer’iyye courts, which had a single judge. The Meclis-i Tahkik (Inquiry Commission), which was most probably established in 1854 in order to implement the penal law regulations issued after the Tanzimat, formed the earliest basis for the Nizamiye courts.17 With the spread of inquiry commissions throughout the territory, the process that prepared the way for the establishment of the Nizamiye courts began. The most important regulation in this field was introduced with the Vilayet Nizamnamesi (City Regulation), dated 1864. With this regulation, civil and penal law courts, known as dava mevlisi (trial councils) at the district level, temyiz meclisi (appellate courts) at the county level, and divan-ı temyiz (appeals councils) at the provincial level, were established. This regulation led to the establishment of single-degree şer’iyye courts, and bidayet (first-degree) courts and istinaf (second-degree/appeals) courts were established for the first time within the Ottoman judicial structure. Various later regulations introduced different changes regarding these courts. They took on a new form and their deficiencies were addressed with the introduction of the Mehakim-i Nizamiye’nin Teşkilat Kanunu (Law of Nizamiye-Court Organization), enacted in 1879.18 Likewise, this law changed the names of the courts, which had previously caused confusion among the public, to bidayet and istinaf courts.
This dual structure formed from the şer’iyye and nizamiye courts maintained its existence both inside and outside Istanbul until the end of the Ottoman State. During the republican period, however, radical changes were made in this regard and şer’iyye courts were abolished by Code No. 429, enacted in 1924. Sulh (magistrate courts) and asliye (regional) courts were established in place of the şer’iyye and bidayet courts in order to fulfill the duties of all first-degree courts. Similarly, with this code, istinaf courts, which had been introduced to the Turkish judicial system by means of the Nizamiye courts, were abolished; a new dual structure, consisting of lower courts and a yargıtay (court of appeals) was introduced. The sulh and asliye courts established in Istanbul were divided into courts of asliye hukuk (civil courts of first instance), asliye ceza (penal courts of first instance), and asliye ticaret (commercial courts of the first instance), in keeping with emerging needs. Over time the number of these courts increased, again based on need. From the time of their establishment until today, Istanbul courts have grown not only in number, but also in variety, as a result of growing and changing needs. New courts, namely labor courts, cadastral courts, consumer-rights courts, family courts, authorities for enforcement and inquiry, and civil courts for intellectual and industrial property rights, have been established within the structure of civil courts. At the same time, other courts, namely state-security courts, juvenile courts, traffic courts, criminal courts for intellectual and industrial property rights, have been established within the penal court structure.
Istanbul courts that try civil and penal cases were collected in three main centers: the Istanbul Adalet Sarayı (Palace of Justice) in Çağlayan, Anadolu Adalet Sarayı, and Bakırköy Adalet Sarayı; after 2013, in addition to these three centers, courts in the districts of Adalar, Bakırköy, Büyükçekmece, Küçükçekmece, and Gaziosmanpaşa have been added to the Istanbul courts.
Another important judicial institution in Istanbul is the administrative courts. Their history dates back to the Tanzimat period. The Şura-yı Devlet (the State Council), established in 1868, worked as an administrative court for some time. For a long time there was no administrative court in Istanbul; administrative cases were handled by the Danıştay (Council of State), located in Ankara. Since the Danıştay was not able to follow all administrative trials, a law enacted in 1982 established regional administrative and tax courts. According to this law, as of 2013 there is one regional administrative court that works in two boards, ten administrative courts, and eleven tax courts. These courts handle administrative cases as lower courts and as appellate courts.
As for the high courts established during the period of Westernization, it can be seen that the Divan-ı Hümayun, a high court within the Ottoman judicial system, started to slowly lose its importance after the seventeenth century. First, the office of the Rumeli kazasker began to take its place. Later, a structural change was made in this field, and in the nineteenth century the Meclis-i Vâlâ-yı Ahkâm-ı Adliye (the Superior Assembly for Judicial Rules) was established in 1838. The Meclis-i Vâlâ worked both as a legislative body and as a court of appeals for penal trials throughout the Ottoman State. Even though the number of members changed over time, the Meclis-i Vâlâ, a court with a collective judge system, maintained its feature as a superior court until 1868. In 1868, the Meclis-i Vâlâ was divided into two sections and the Divan-ı Ahkâm-ı Adliye (the Council of Judicial Rulings), which handled the civil and penal cases as a court of appeals, and the Şura-yı Devlet, which handled administrative cases, were established. The Şura-yı Devlet also functioned as a legislative body which made laws.
In 1861, the Meclis-i Tetkikat-ı Şer’iye (Assembly of Religious Inquiries) was established to function as a higher institution for the şer’iyye courts. The Divan-ı Ahkâm-ı Adliye and Şûrâ-yı Devlet worked under the authority of the Ministry of Justice and the Meclis-i Tetkikat-ı Şer’iyye worked under the authority of the office of the sheikh al-Islam, except for a certain period of time in 1917, during the Second Meşrutiyet. Along with the şer’iyye courts, the Meclis-i Tetkikat-ı Şer’iye was also affiliated with the Ministry of Justice in 1917; it then went back to working under the authority of the office of sheikh al-Islam, as it had previously. In conclusion, the Meclis-i Tetkikat-ı Şer’iye worked as the court of appeals for both the Divan-ı Ahkâm-ı Adliye, the name of which was later changed to Mahkeme-i Temyiz (Court of Appeals), and the şer’iyye courts; this court continued to work as a high court in Istanbul until the end of the Ottoman State.
1 Bilgin Aydın, İlhami Yurdakul and İsmail Kurt, Şeyhülislamlık (Bâb-ı Meşîhat) Arşivi Defter Kataloğu, Istanbul: Türkiye Diyanet Vakfı İslâm Araştırmaları Merkezi (İSAM), 2006, pp. 64-65.
2 Mehmet Tevfik Özcan, “İstanbul Üniversitesi Hukuk Fakültesinin Kurumlaşmasının Tarihçesi”, İstanbul Üniversitesi Hukuk Fakültesi Mecmuası, 2003, vol. 61, no. 1-2, p. 86.
3 Cahid Baltacı, XV-XVI. Asırlarda Osmanlı Medreseleri, Istanbul: İrfan Matbaası, 1976, p. 470 ff.
4 Bilgin Aydın, “İstanbul Kadılığı Tarihçesi ve İstanbul Kadı Sicillerine Dair Tetkikler”, İstanbul Araştırmaları, 1998, no. 6, pp. 71-72.
5 Aydın, “İstanbul Kadılığı Tarihçesi”, pp. 72-73.
6 Aydın, “İstanbul Kadılığı Tarihçesi”, p. 73.
7 Aydın, “İstanbul Kadılığı Tarihçesi”, p. 75.
8 Aydın, “İstanbul Kadılığı Tarihçesi”, p. 76.
9 Gül Akyılmaz, “İstanbul Kadısı”, İstanbul Tarihi: Medeniyetlerin Buluşma Noktası Olarak İstanbul¸ Ankara: Atatürk Kültür Merkezi, 2011, vol. 1, p. 89-92.
10 Akyılmaz, “İstanbul Kadısı”, vol. 1, p. 97.
11 Osman Nuri [Ergin], Mecelle-i Umûr-ı Belediyye, Istanbul: Matbaa-i Osmaniye, 1338/1922, p. 308.
12 See: F. M. Emecen, Osmanlı Klasik Çağında Hanedan Devlet ve Toplum, Istanbul: Timaş Yayınları, 2011, pp. 218-228.
13 Özcan, “İstanbul Üniversitesi Hukuk Fakültesinin Kurumlaşmasının Tarihçesi”, p. 115.
14 Ekmeleddin İhsanoğlu, Darülfünun: Osmanlı’da Kültürel Modernleşmenin Odağı, Istanbul: İslam Konferansı Teşkilatı İslam Tarih, Sanat ve Kültür Araştırma Merkezi (IRCICA), 2010, vol. 1, pp. 140-141; Emre Dölen, Türkiye Üniversite Tarihi, Istanbul: İstanbul Bilgi Üniversitesi, 2009, vol. 1, pp. 135-136.
15 İhsanoğlu, Darülfünun, vol. 1, p. 154-155; Dölen, Türkiye Üniversite Tarihi, vol. 1, pp. 141, 161-164.
16 Özcan, “İstanbul Üniversitesi Hukuk Fakültesinin Kurumlaşmasının Tarihçesi”, p. 154; Dölen, Türkiye Üniversite Tarihi, vol. 3, pp. 384-386.
17 Ekrem Buğra Ekinci, Osmanlı Mahkemeleri, Istanbul: Arı Sanat Yayınları, 2004, pp. 138-140.
18 For the whole text of the code, dated 1879, see: Düstur, Birinci tertip, Istanbul: Başvekalet Neşriyat ve Müdevvenat Dairesi Müdürlüğü, 1296, vol. 4, pp. 245-260; For the Nizamiye courts also see: Gülnihal Bozkurt, Batı Hukukunun Türkiye’de Benimsenmesi, Ankara: Türk Tarih Kurumu, 1996, pp. 116-126; Ekinci, Osmanlı Mahkemeleri, pp. 161-174, 203 ff.