The First Model For The EU: Ottoman State

The Ottoman State was a Muslim state. Accordingly, in all the institutions - legislative, administrative and all the rest - of this State the principles of Islam were effective.

The First Model For The EU: Ottoman State

By Prof. Dr. Ahmed Akgündüz*

1.The Emergence of Ottoman State

The thorny issue involving the case of Muslims living in the European hosting countries could be formulated in the following question: Could the Islam be a threat to non-Muslims European communities? Surely, Non-Muslims as well as their Muslim neighbors have a desire to live in peace as citizens of the same country. Unfortunately, the situation runs against all expectations. Why? On the one hand, Muslims do not know the rules of Islam, which should be practiced in Western European States. As a result, there are some wrong approaches to non-Muslim communities and their style of life. On the other hand, there are misunderstandings regarding what some people refer to as the conflicting relationship between Islamic rules and domestic laws, regulations and traditions of Europe. Western European states, as felt through the realities of the integration policies involved, generally interpret the integration of Muslims as abandoning their cultures, faith, and the basic principles of their religion in favor of European norms and values. The Ottoman heritage can contribute to solve this problem. Because Ottoman society was a mosaic of cultures and religions and provided a peace and harmony among members of society without distinction between Muslim and non-Muslim, race, and color.

History is the garden made up of phenomena and people. If you enter a garden for an hour's excursion, you are likely to witness some dirty and impure things here and there, for it is only of the properties of the gardens of the paradise to be exempt from defaults and it is of the requirements of this world to make each perfection flawed. Now that we have entered the garden of Ottoman history, we should look not only at the decayed and spoilt objects, but also at the opened flowers and fragrant roses.

The history of Ottoman State has a lot of meanings. The Middle East as we know it today emerged from the disintegration and dismantlement of the Ottoman Empire. The story of Ottoman history involves not only the Ottoman dynasty but the many peoples who ruled the empire and were ruled by it: Turks, Arabs, Serbs, Greeks, Armenians, Jews, Bulgarians, Hungarians, Albanians, North Africans and others. It constitutes the history of the major religious groups among these subjects: Muslims, Christians and Jews. We should take into account the relations between the Ottomans and their neighbors in Europe, Asia and Africa -- their wars, conquests, diplomatic ventures, territorial losses, and reconstituted identities. We can't forget the history of the political, administrative, and social institutions incorporated into this multi-national, multi-cultural entity. It is the story of the rise and fall of empire. It is the story of the traumatic birth of the Middle East in the twentieth century.

The Ottoman State was a Muslim state. Accordingly, in all the institutions - legislative, administrative and all the rest - of this State the principles of Islam were effective. In the organization of the Ottoman State two outstanding effects are fundamental: The first is the principles of the Religion of Islam and the impact of the Muslim countries, like the Abbasid State. The Second is the ancient Turkish State Organization.

The Ottoman dynasty was from the longest lasting dynasties in the world - 623 years. In addition, the Ottoman Sultans had been Caliph of the Islamic world for 407 years; from 1516 when Selim Khan obtained the title, to 1924 when that dignity was abrogated.

Historians are discussing until now the reasons which led to emergency of a universal state from a tribe. We can summarize these reasons as below:

1. The tolerance of the Ottoman State in religious freedom was that the principle of religious freedom in Islamic Legislation was exactly applied. It was impossible to interfere with the religion of the non-Muslims who had been accepted as citizens in an Islamic country leave aside forcing them to profess Islam. However, the fact that they were granted certain privileges pertaining to Muslims (like being able to become governors, sanjaq beys and even Grand Vizier) when they became Muslims of course had affirmative influences upon those non-Muslims who witnessed the Ottomans' that attitude, the factual result whereof was Ghazi Mikhals and the similar heroes of Christian origin. Accordingly, the Ottomans never islamized forcedly; yet on the other hand, they never conceded as regards to the cause for the dissemination of Islam known as I'la al-Qalimatullah. Once native folk had realized that tolerance and that they had no plans to exterminate Christianity, they began to become Ottomans and Muslims in masses.

2. As is known, Ottoman State saw no wrong in granting non-Muslims such offices bearing the meaning of Wadharah al-Tanfidh like timar eri, subashi, qadi to non-Muslims, etc. apart from those offices bearing the meaning of Wadharah al-Tafwidh like grand vizier, governor, sanjaq bey, qadi in certain places and president. As a matter of fact, the Ottomans applied that principle in its entirety during the period of foundation. Therefore, as Serbians, Bulgarians and the other Balkan nations were employed in military and administrative tasks under the titles of voynuk, legator and martolos, they were not deprived of týmars (fiefs) za'amah (large fief).

3. The Ottoman State saw again no wrong in the adoption of such institutions and codes that were not contrary to Islam and but useful to mankind, even though they had been pertaining to other religions and nations or leaving the non-Muslim subjects to their own beliefs and traditions.

2. The Ottoman Legal System and Pax Ottoman

As it is well-known, there are two kinds of legislations. Multi Legislation could be summarized as the State's granting those members of diverse cultures and religions the chance to prefer their own legal codes and that the State hold no such task as producing legislation. On the other hand, Legislative Unity comes to mean the application of the same legal system for each community living in the country.

We should here emphasize that in Islamic Legislation and in the Ottoman practice, which meant absolute application thereof, there never existed multi legislation. Nevertheless, for societies pertaining to different religions and cultures there were found rights and freedoms and especially religious freedom accepted by Islam. As result of such freedoms, in such exceptional branches of law as regards to individuals, family and legacy, respect was due for decrees apt for their beliefs, which can not be named separate laws but, if something, binding regulations linking different decrees of belief to one another, which bore importance not only for Muslims but for non-Muslims as well.

In summary, according to a Hanafite view accepted in the Ottoman legal history, in laws of commodities, loans and commerce, non-Muslim subjects were applied Shariah decrees. Nevertheless, there were exceptional cases for such things as pigs and wine, which were accepted as commodities for them, to be subject to legal transactions. As for family law, they were subjected to either Islamic legislative order or their legal order, based upon their own choice. As a matter of fact, the Decree for the Family Law dated 1917 also adopted that view, in which code were cited those provisions pertaining to Christians and Jews apart from those ones pertaining to Muslims, which is but a reference.

We can mention as an example the following statements in the protocol of the Decree of the Family Law:

"Since each group of different religions and nations are applied of the uncodified decrees of their own sects and religions in our country and since Shar'iyyah judges are incognizant thereof because Majallah does not consist of decrees as regards to family law, the necessity has arisen that the spiritual leaders of non-Muslims be vested – though exceptional – with judicial authority. However, that the judicial right pertaining to the State be transferred to such individuals or boards as are not subject to a serious control shall bring with it many a drawback".

The concept called Pax Ottoman in Western culture is used to express the Ottoman State's contribution to world peace during the times when the Ottoman State was the super power in the world. It is better understood from day to day what the peace established by the Ottomans, which used its power to ensure the world peace, meant although it was the super power of its time, for the Balkans, the Black Sea coasts, the Middle East and North Africa geographies have today turned out to be such places as where the political balances and international peace have been deteriorating.

The vacancy of the Ottomans who had withdrawn from the Balkans was not filled, and accordingly that region was quite Balkanized. The term Balkanization is a political term denoting division, partition and political chaos, which would define its thorough meaning with the Ottomans' retreat from the region. The broad Arab world has never caught again their serene days they had lived under the Ottoman banners. After the Ottoman State had retreated from the peninsula, the extensive Arab geography was divided with a ruler; and thus such political maps were formed as to facilitate the colonialism. In brief, tranquility became a thing of past.

The Ottoman State was an element of balance in Europe, Middle East and North Africa. It was a common point where the demands of a large number of sections of society with different ethnical structures and religions met. In fact, the Ottoman State had built such a supra-structure that churches and mosques stood side by side. And the foundation of that supra-culture was based upon "Divine Responsibility". In essence, the fundamental philosophies of conquests were the yield of that mental world that was based on Divine Liability. Such targets as to conquer states, annex new soils, establish a powerful state, rule masses of people, which were all deemed as the fundamental ideal of the secular world did not go far from being a means for Ottoman administrators, for the prevailing notion in all the Islamic societies was not based upon hoarding ephemeral riches but formed around such a sublime ideal as "I'la al-Qalimatullah" (Enjoining right, and forbidding evil). At least, it was theoretically like that. The fundamental goal was the glorification and protection of the Religion and enabling the whole mankind to benefit from the favor of Islam. And in fact a strong state and conquests were needed for that objective.

Ottoman administrators who deemed themselves affiliated to "Shar' al-Sharif (Shariah)" oppressed no ethnical minority under their sovereignty but assured them to live by their own beliefs, for that attitude was an essential principle of Islam and included in those rights granted by Islamic Legislation to Ahl al-Dhimmah (non-Muslim subjects), and that could not be violated. As a matter of fact, our Muslim forefathers acted – as they did in every affair- within the limits determined by what they called "Shar' al-Sharif", viz. Islamic Legislation, as regards to the non-Muslims dwelling on the Ottoman State's soils. According to Islamic Legislation, which was called "Shar' al-Sharif" in the Ottoman State, non-Muslims that had made peace with Muslims and recognized the sovereignty of a Muslim State were called "Dhimmis" (non-Muslim subjects), who all were - disregardful of their colors, tongues and races – equally treated as per the decrees of "Shar' al-Sharif".

It is likely to meet many examples as to freedom in belief from the Ottoman history.

a. Bosnia and Herzegovina

In Bosnia and Herzegovina, which was conquered and annexed to Ottoman soils in 1463 by Sultan Muhammad the Conqueror, the citizens of the country professed Islam by their own will without any oppression by virtue of the Ottomans' just and tolerant administration and subsequently they remained loyal to the Ottoman State and attached to the ideals it represented. The Grand Conqueror granted religious freedom to the region's dwellers when he conquered Bosnia and assured their property and life security. In a rescript sent to Latin priests in the region it was evidently expressed that the Conqueror granted the region's dwellers goods and life security, religious freedom and liberty.

b. Jerusalem

During the reigning era of the Ottomans there used to be four large quarters in Jerusalem. In the northeast thereof was located the Muslim Quarter, where were found the Town Hall, Masjid Al-Aqsa and Sahra Al-Mukaddasa (the Holy Desert). In the northwest was the Christian Quarter, where were found the Cathedral called Kamama wherein it was believed by the Christians the sepulcher of Jesus Christ was found, as well as a great number of churches and monasteries. On the other hand, outside of the city wall were erected those private buildings and offices that belonged to the Russians and the other communities, which thus formed another quarter. Yet, in the southwest of Al-Qudus was the Armenian Quarter and in the southeast the Jewish Quarter. The population of the city was almost 43.000 towards the end of the Ottoman State and the half thereof was composed of Muslims, one-third of the Jews and the rest of the Christians of divers nationalities.

As Jerusalem was a sacred town for not only the Muslims but also the Christians and the Jews, it was visited by a colossal number of visitors from all over the world during the sovereignty of the Ottomans as has the case ever been; and only with the entrance fees levied from the visitors along with the tourism revenues obtained from them the City maintained its economy.

Muhammad the Conqueror, who conquered Istanbul in 1453, has issued an edict wherein he secured the rights and freedoms of non-Muslims who lived in Istanbul, when the Christians in Jerusalem submitted to him the decrees undersigned by the blessed hand of the Prophet Muhammad and the aforesaid firman (edict) of the Khalif Omar written in Cufic script, he likewise issued an edict of rights and freedoms on behalf of the Christians in Jerusalem, the original whereof is found in the Patriarchy of the Christians in Jerusalem and a copy of which is in the Ottoman Archives. The person who came to Muhammad the Conqueror to collect it is Atnasiyos, Patriarch of the Greek Christians.

The Decree of Muhammad the Conqueror as regards to the Sacred Places in Jerusalem:

'Let it be duly abided by. May whoever annuls this blessed imperial decree meet the curse of Allah;

. When we conquered Istanbul with the permission of Allah and the spiritual assistance of the Prophet Muhammad, shahs and kings from different parts of the world sent envoys to congratulate us on the conquest. In the meantime, Atnasiyos, the Patriarch of the Greek Christians in Jerusalem, came to me of his own account and submitted to me the Prophet Muhammad's decree undersigned by his blessed hand, the firman of the Khalif Omar written in Cufic script as well as those imperial edicts of the former sultans, and requested that all the places of worship and voluntary pilgrimage within and without Holy Jerusalem, chiefly the Church of Kamamah remain in their control;

· Thereupon I decreed that – as has been earlier granted as a favor – the Church of Kamamah and all the places of worship and places of voluntary pilgrimage, which are situated within Jerusalem, Mar Ya'kub, which is a Georgian Monastery, the monasteries and churches outside of Jerusalem, the Big Church in Bayt Al-Lahm, the birthplace of Jesus Christ, and the cave and three gates of the Church remain in their control;

· Let all the patriarchs, priests and their assistants of the Christians in Jerusalem be exempt from baj (market or transit dues taken on goods for sale Per container), kharaj (a combined land-peasant tax levied from a non-Muslim possessor of state-owned agricultural land) and the other extrajudicial and Islamic taxes;

· All these rights and freedoms have also been awarded by my firman (edict) as they were granted by the Prophet Muhammad, the Khalif Omar and the former sultans. May all the walis (provincial governors) and the statesmen under my sovereignty adhere to this and may they not disturb anyone;

· Whoever of khalifs, viziers, savants or of the People of the Prophet Muhammad, (i.e. Muslims) ever opposes hereafter the Prophet Muhammad's decree undersigned by his blessed hand, the Khalif Omar's firman written in Cufic script, or the firmans of the other sultans aro my firman for money's or somebody's sake may be struck with the malediction of Allah and His Prophet Muhammad;

· Let this be thus known! Let them trust and comply with the Sultan's Monogram! 15th Shawwal (10th month of Arabic Calendar) 862/1458 [1].

In short, Pax Ottoman signifies the application by the Ottoman State of the Islamic Legislation, which regards the whole mankind as the servants of Allah[2].


3. The Rights Granted To the Minorities

In Islamic Law people are distinguished from each other by their religions. That's why the term Ummah (community), viz. the followers of the same religion, rose to the agenda in place of the terms country and nation. Ra'iyyah, which meant citizens during the early periods of the Ottoman State, were divided as Muslims and non-Muslims. Accordingly, in Ottoman Law those who lived in an Islamic country were classified into three groups according to their religions and the states they were subjected to:

1) Muslims; 2) Dhimmis (non-Muslim subjects), viz. those people who agreed to living under the sovereignty of an Islamic state, though they were non-Muslims, with a contract of zimmah (duty of tribute and obedience owed to the State by a non-Muslim subject) and who had the right of permanent residence in an Islamic country; 3) Musta'mans, who were those foreign non-Muslims that were allowed to enter and dwell in an Islamic country temporarily.

Following the brief definition of the term minority here above let us now dwell on the rights granted to the minorities:

After making mention of the general principle in this matter we would like to elaborate upon some details thereof: In the Ottoman State those rights and privileges granted to Muslims were also granted to the non-Muslim citizens, called dhimmis, with some exceptions. In fact, Ottoman State adopted as principle and applied the Hadith (tradition of the Exalted Prophet Muhammad) that says: "Those rights granted to us are also granted to them; and those tasks charged upon us are also charged upon them". Those foreigners titled Musta'mans were like dhimmis. Nonetheless, they were not charged with the liabilities of the privilege of permanent residence, for they merely held the right of temporary residence in an Islamic country. After these general principles, let us now elaborate upon some details:

1- Political and Administrative Rights: Those rights were only granted to dhimmis. The following two points ought to be known in this matter:

Firstly: As dhimmis were the citizens of an Islamic country, they held the right of being employed in such public services as were not related to religious affairs, with the sole exception that dhimmis could not be appointed to such services as President of the State, Commander-in-Chief, Governor, Sanjaq Beg, Grand Vizier and Qadi, which offices signified using the right of sovereignty. That was the case in the Ottoman State. Yet after Tanzimah some dhimmis were even appointed as ministers. In the meantime, dhimmis were administered by a religious chief who was elected from among their community and who was answerable to the State. At the head of Christian communities were found Patriarches and Metropolitans, and of Jews' rabbis.

Secondly: The following could be said as regards to the right of electing and being elected: As the Caliph that was appointed to office with an election was to be a Muslim; the elector of him had to be Muslims. Again, dhimmis were excluded from the right of electing and being elected as the members of Majlis al-Shourah (Advisory Council), viz. Executive Council. Nevertheless, with Qanun al-Intihab al-Mabusan (Law for the Election of Deputies) dated 1876 the said essentials were violated and dhimmis were provided with more rights than those decreed in Islam, as the result thereof the Ottoman State weakened and collapsed.

2- Essential Rights and Freedoms: To summarize the issue under basic titles:

A) Dhimmis had been benefiting from private rights and freedoms just like Muslims, which included – with certain minor restrictions – freedom for travel, an individual's immunity, liberty of domicile, etc.,. As a matter of fact, our history is full of pages of glory that would set examples to the whole humankind. The sole exception of the freedoms of travel and residence was the inhibition of dhimmis - with the decree of the Noble Qur'an - from entering the Region of Hejaz. Meanwhile, in the Ottoman State dhimmis' freedoms for dwelling and residence were arranged in such manner as would not cause aught harm either to themselves or to Muslims. Dhimmis generally dwelt in separate groups in suburban quarters of Anatolian Greeks, Armenians and Jews. For example, with a firman dated 1582 dhimmis were prevented from dwelling in the Quarter of Eyyub in Istanbul. Further, it was decreed through various firmans – as a token for the sovereignty of Islam – that dhimmis' houses should not be higher than those of Muslims. A Hungarian orientalist stated that dhimmis were provided with individual rights and freedoms within legal frame as follows: "If the Ottomans, under the sovereignty of whom we had lived for 500 years, had not granted us the right of life and killed one non-Muslim every day, there would remain no single Greek, Serbian, Bulgarian, or Romanian today".

B) Further, dhimmis were bestowed with religious freedom within legal frame. The fact that dhimmis were granted with religious freedom in the Ottoman Legislation was a basic principle adopted from Islam. However, it cannot be again said that some restriction were brought to establish a balance between the sovereignty of Islam and the mentioned freedoms. First of all, according to the Islamic States' Law, in such countries as had been conquered in peaceful manners the existent places of worship of dhimmis were not touched. Yet in such lands as had been conquered belligerently the ruler of the concerned Islamic state was vested with the right to act in consideration of the public good.

That Sultan Muhammad the Conqueror left - despite of the afore-said Shariah Decrees - some of the churches in Istanbul, which he had conquered in a belligerent fashion, as they were evidences the importance Muslim Turks attributed to religious freedom, which fact was stated by Abussuud Effendi in a fatwah of his. Still, although Sultan Muhammad the Conqueror was informed that the Hungarian King had told the Serbian King Brancowich "I shall erect Catholic churches all over Serbia and destroy the Protestant churches", he said "If you obey my State, a church will be built next to each mosque, where everybody will worship their Creator". Secondly, dhimmis were allowed to exhibit their religious symbols, like the cross and the church-bell, at their places of worship. Nevertheless, they were prevented from exhibiting them outside their places of worship in those cities where Muslims lived. Again, they were prohibited from using their symbols for advertisement or propagation. Thirdly, dhimmis were bestowed with freedoms for thought, meeting and education, which, nonetheless, were to be used in congruity with Shariah Decrees. Further, they were able to educate their children and also inculminate them of their religion at their own schools. As a matter of fact, their schools in Istanbul are the living witnesses of that very freedom of theirs.

Dhimmis were also granted such rights as benefiting from public services financed through the State's budget as well as social security institutions with some exceptions; and they were also given the right to work. We are not delving into details here.

3-Other rights: In other words, in those issues other than the above-mentioned ones, dhimmis were exactly like Muslims excluding some penal decrees and several institutions as regards to laws on family and legacy arising from different beliefs. Namely, they were like Muslims in those matters that were not based on belief. That means to say, they were subject to those decrees as Muslims were in those matters that were not related to belief. If one studies Shar'iyyah Records, he will observe that these principles did not remain in books when he sees that some Ahmed was punished not some Yorgi and some Mehmed not Isaac. Those who would like to witness that all kinds of rights of dhimmis were respected regarding chiefly their property rights may refer to the decrees of Shar'iyyah Courts amounting to thousands of pages comprising more than 20.000 documents[3].

4. The Ottoman State May Guide to the Solution for the Problem of Modernity

The problem with the issue of Islam and time exigencies is the problem of co-existence and coordination between two objects that are against each other in their natures. One is fixed and irrevocable in nature, while the other is revocable, not fixed and fluid. Since Islamic rules could not be abrogated, they are unchangeable and permanent, and since time exigencies or any other issue related to time, including human necessities and living conditions, are not fixed, it is but natural for them to undergo changes. Some Western scholars and politicians are accusing Islam with this reason.

An eminent Ottoman Scholar had drawn our attention to this point:

'Sacred laws change according to the ages. Indeed, in one age different prophets may come, and they have come. Since subsequent to Islamic Law is sufficient for all peoples in every age, no need has remained for different laws. However, in secondary matters, the need for different schools of law has persisted to a degree. Just as clothes change with the change of the seasons and medicines change according to dispositions, so sacred laws change according to the ages, and their ordinances change according to the capacities of peoples. Because the secondary matters of the ordinances of the Islamic Law look to human circumstances; they come according to them, and are like medicine.

At the early times, since social classes were far apart and men's characters were both somewhat coarse and violent, and their minds, primitive and close to nomadism, the laws at that time came all in different forms, appropriate to their conditions. There were even different prophets and laws in the same continent in the same century. If, like students of a school of higher education, the vast majority of mankind were clothed in the same sort of social life and attained the same level, then all the schools could be united.' (Bediuzzzaman, Said Nursi, The Words, 27th Word)

The Ottoman State has solved this problem and used restricted power of legislation during the period. The provisions of regulations in the Ottoman Legislation are divided into two groups:

A) Such decrees as were directly based upon the Holy Qur'an and Sunnah and codified in books of Fiqh (Islamic Jurisprudence) were called Shariah decrees, Shar al-Sharif or Shariah Legislation, which decrees formed most of the Ottoman Legislation. Accordingly, 'Duerar wa Gurar' by Molla Husraw and 'Multaqah' by Ibrahim of Aleppo were regarded as the Civil Code of the Ottoman State. The sources of Shariah Law were classified into two groups: a) primary sources, also called Adillah al-Shar'iyyah, which are four: the Noble Qur'an, Sunnah, Ijmah (the general concurrence and agreement in opinion and decision of the legalists) and Qiyas (analogy); b) Secondary sources, which are the rules of traditions and customs, istislah (rendering easy), istihsan (commendation), ancient regulations of law, narrations of Ashab al-Qiram (the Exalted Prophet's Companions) and the like sources.

These decrees bind all the Muslims without requirement for the approval of any person or institution. In other words, all the Muslims, also including Sultan and Caliph, are liable to observe the said decrees. The principles of Shariah Legislation have been codified with books of Islamic Jurisprudence.

B) Particularly financial law, territorial law, penalties of ta'dhir, arrangements on military law and administrative law based upon the restricted legislative authority vested by Shariah decrees and those jurisprudential decrees the foundation whereof were such secondary sources as customs and traditions and public good, which were such titles as public law, Siyasah al-Shar'iyyah (Shariah Politics), Qanun (Code), Qanunnamah (Legislation) and the like. As the said could not exceed the limits of Shariah principles either, they may not be regarded as a legal order outside the Islamic Legislation.

Decrees of Ijtihad (Jurisprudence) wherefore there exists no obvious mention in the Holy Qur'an or Sunnah, the sources whereof are istihsan (commendation), public good or the like secondary sources, the most noteworthy characteristics whereof is that they are not binding unlike the former. This being the case, those who reveal or determine by Shariah evidences such decrees are legists of ijtihad, Sultans, Caliphs or Legislative Councils[4].

In Ottoman State before Tanzimah (Reforms) that legislative power of Ulu al-Amr, the limits whereof have been defined in law books, was generally used by Sultans and Padishahs. As and when it was so required for public good, some ijtihads (jurisprudences) were preferred; decrees were issued upon the fatwahs received from the Shaikhulislam in face of newly emerging legal matters; particularly the regime of the conquered lands was arranged in conformity to public interest; and ta'dhir penalties were arranged in divers fashions according to the changing time. Thus such legal arrangements as were issued in administrative, financial, penal and different legal fields, at various intervals and on several occasions, with the Sultan's orders and edicts based upon the fatwahs of the theme's Shaikhulislam were compiled either exactly or in summary or were collected upon Sultan's demand under the title of 'Qanunname' (Legal Code). Though we have in hand legal codes transmitted from earlier times pertaining to the Dulqadirids and Aqqoyunids, the majority of those codes numbering 700 belonged to the Ottoman Sultans and especially Sultan Sulaiman the Lawmaker. Again do we witness that legal codes were divided into two parts among themselves:

A) General Codes: They contained sovereign legal rules valid for the whole Ottoman land, as instances whereof were two legal codes pertaining to the Conqueror – one concerning State organization and the other penal legislation; general legislation belonging to Sultan Selim the Excellent; general legislation pertaining to the Lawmaker; Legislation of Tawqii Abdurrahman Pasha (Ottoman State Organization); Legislation of Ahmed III; and two legal codes belonging to the Dulqadirids.

B) Private and local legal codes: Ottoman administrators did the survey and registry of every land they annexed to the country through conquest and entered special codes at the beginning of the written survey of the concerned province in consideration of the legal status of the land, the ancient customs and traditions prevalent in that region, ancient orders, the fertility of the land and the population. The majority of those legal codes were such whose decrees had been adapted forms of those decrees in the general codes to the concerned regions. In the legal codes were found some special provisions that concerned those regions whereto they pertained. For instance, while the Cretan Legal Codes included such decrees as were related to private land and kharaj, the Budin Legal Codes was composed of decrees that were related to miri land. We shall have published 760-odd Legal Codes, both general and private, in our work called the Ottoman Legal Codes.

The Ottoman Legal Codes bear such importance that they would require re-writing of the 6-century-long history of the Ottoman State, which form the longest period of the Turkish – Islamic History, for law is such a real mirror that it reflects all the aspects of human life. In fact, it cannot be gainsaid that law forms an indispensable element of human societies and even – with the expressions of a legist - "it is the very self of human life". The Ottoman Legal Codes were sources of first instance not only for the Ottoman Law, but also for the Ottoman history, the Ottoman civilization as well as the military, economic, religious and social history thereof.

Another thorny issue is the problem of constitution. Abdulhamid II, who took the issues of the constitutional regime and Qanun al-Asasi on his agenda with the vehement wishes of the Grand Vizier of the time, Ahmed Midhat Pasha, ordered the authorized Islamic jurists of the time to prepare their explanatory reports on whether in the first place the preparation of such a constitution and the formation of a Parliament to be vested with legislative authority in certain matters would be in discordance to 'Shar al-Sharif', which was the basis of the Ottoman legislation. The views on that issue could be summarized in two points:

Firstly: It is contrary to the Islamic Legislation to prepare such a constitution called 'Qawanin al-Siyasah' (Political Codes) or 'usul' (manner) and to abide by the laws to be introduced by a Parliament to be formed by such a constitution. The holders of that view had thought that the constitution to be prepared was going to lead to the introduction of such laws as would be overtly in discord with Shariah decrees and they were disagreed with by the majority. The most significant point whereon they were based was the issue that Majlis al-Shurah (Advisory Council) was to be composed of solely Muslims, not non-Muslims. Fatwah Emini Kara Khalil Effendi ranked first among the holders of that view.

Secondly: It is permissible to establish a legislative body in nature of a 'Shurah Council' (Advisory Council) on condition that it should remain within the frame of restricted legislative power granted to Ulu al-Amr (senior administration staff) the limits whereof have been determined in Islamic Legislation and that it should not contradict the existing Shariah decrees; and yet it is legal to prepare a Qanun al-Asasi (Constitution), called Usul, to arrange the principles thereof. As a matter of fact, it is necessary. The leader of those who defended this view was Saifuddin Effendi, of the members of the State Council, who had convinced the senior officers of the State through his speech.

There have been eminent scholars of Islam who have stated that it is permissible by Islamic Legislation to prepare a fundamental law, i.e. Constitution, also called 'Dustur or Usul'. We can mention an explanation about this issue for a big Ottoman Scholar

"Mashrutiyyah (Constitutional regime) comes to mean the accumulation of consultation, justice and power in legislation. Constitutional regime and Constitution are made up of real justice and Shariah consultation. Our worldly felicity is based on the Constitutional regime. The enemies of the Constitutional regime increase the enemies of consultation by showing the Constitutional regime as cruel, ugly, and contrary to Islamic Legislation. Truths do not change by changing their names. As social ties, means of earning the living, and favors of civilization were not so profuse in the past, the views of few people sufficed for the administration of the State. Nevertheless, social relationships have increased and necessaries have diversified so greatly that only a Parliament, the heart of the nation, can administer the State with Shariah consultation, which means the opinion of the Islamic nation, and intellectual freedom, which means the sword of civilization".

Though the precise date thereof is unknown, the eminent jurists of the four mazhabs (schools) in Cairo sent an explicatory report to Abdulhamid II in support of the Parliament, which is the heart of the Islamic nation. This document is also found in the Ottoman Archives. Yet some other explanatory reports are available in the Ottoman Archives on behalf of the Constitution (Kanun al-Asasi) and the Parliament that had been conveyed to Abdulhamid II. We would not like to go into further details here.

Abdulhamid II, who regarded those opinions on behalf of the Constitution as basis, took the Advisory Council (Majlis al-Shura) in the Islamic Legislation as fundamental and made some modifications in the explicatory report prepared by the State Council (Shura al-Dawlah) chaired by Ahmed Midhat Pasha, and then on 23 December, 1876/ 7 Dhilhajjah 1293 issued permission for the promulgation of Qanun al-Asasi (the Constitution). Thus the Ottoman State became a Constitutional regime and a Legislative Council was first accepted so that it should carry out its legislative task within the limits of sovereign legislation.[5].

5. Conclusion

As long as the West looks upon its culture as the superior culture in all aspects –endeavoring to humiliate other cultures without making efforts to understand them, and tries to globalize one, and only one, culture- the world will not come out of its present difficulties. Muslims and amid them Ottoman State have tried their best to adopt new scientific, social and philosophical ideas from other cultures, especially from the West, and adapt it to their own value system. They have not, generally, treated their shari'a as an invariable, rigid command, but as a guide to walk towards God, with the adaptations required by each historical and social content. It is now West which should participate in this mutual effort of understanding and cultural interchange.

 The Decree of Rights of Minorities Granted to Galata Christians

 The Decree of Rights of Minorities Granted to Galata Christians

The most noble decree of Muhammad the Conqueror he granted with his Imperial Rescript (Prime Ministerial Ottoman Archives, Books of Churches, Book of Kamamah, No: 8).

Is it possible to consider 1915 Armenian Deportation as an Armenian genocide? How can we reply the allegations of Armenians and Western authors on this subject?

The matter is to be explicated from various perspectives:

Firstly; throughout the history Armenians lived in the Ottoman land as a Millah al-Sadiqah (Loyal Nation) in the status called dhimmi, viz. non-Muslim citizens of a Muslim country, and the Ottoman State granted them all the rights and freedoms it did to its Muslim citizens. I ought here to mention that if we the Muslim Turks had not respected the rights and freedoms of the minorities ever since 1071, that is for 909 years, a long period in history, would it be possible to mention today of the existence of minorities in Turkey, even in a small quantity? The fact that no trace of Muslim minorities survived in Spain in the simultaneous period of time clearly evidence the real attitudes of Europeans, rather the Christian nations, and us the Muslims on this subject. The Armenians were granted not only basic rights and freedoms but also the religious freedoms in light of the principles introduced by the Religion of Islam. After Tanzimah (Reforms), particularly during the time of the Unionists, political rights were accepted for Armenians as well as for the Muslims, to such an extent that Abdulhamid II was even accused of being a killer of Armenians. During the reign of Abdulhamid II, Agop Pasha was Chancellor of Exchequer. Yet the Unionists got so imprudent that they appointed Gabriel Noradungiyan, who had betrayed the Ottoman State, as Foreign Minister.

In return for the Ottoman State's mentioned acts, the Armenians, having been provoked by Russia and based on Provision 61 of the Treaty of Berlin, began to rebel against the State and massacre the Muslim people and especially the Muslim Turks in the Eastern and South Eastern cities, where they never managed to form the majority. The members of Hýnchaq Association, which was formed in 1886, and the members of Tashnaq Association, which was an Armenian committee likewise, started terrorizing the Ottoman land. Abdulhamid II, who stopped that terror with the help of the Hamidiyyah Regiments, was accused as Kýzýl Sultan (Sultan the Crimson). On the other hand, Hamparsum Boyajiyan, who had rebelled in 1894, was elected by the Unionists into the Parliament as Minister of Harput. The conspiracy wherein they attempted to murder Abdulhamid with a bomb, the consecutive Armenian riots in Istanbul, etc. clearly evidence that they followed the orders of foreign powers.

Ad extremism, the Armenians in the East began to hit the Ottoman State from behind, which entered the First World War on 29 October, 1914, together with Russians. As a matter of fact, when the Russians who evacuated Van delivered the city to Armenians, the Armenians started massacring Muslims in the East (3.8.1915). 1.300.000 Armenians were living in Eastern and South-Eastern Anatolia at the time, which constituted only 5 % of the population. When the massacres by the Armenians of Muslims could not be prevented despite of all the measures, in April 1915 Minister of Interuor, Tal'at Bey, issued a decree that 500.000 Armenians in the Eastern and South Eastern Anatolia should be deported (tahjir), with an objective to driving Armenians away from the ways of Russian troops. While some of the Armanians, who were deported to Iraq, Syria and Lebanon under the protection of soldiers, died on their way owing to heavy traveling conditions and starvation, some others were killed by some civilian dwellers of the region whose relatives had been earlier massacred by Armenians. Yet the number of Muslims that had been massacred by Armanians total around 1.000.000. Yet on the other hand, American authorities and army officers who had lived amidst the events refused the allegations of Armenian Genocide in spite of all the clamours of the European countries; au contraire, they authenticated the verity of the massacring of Muslims. These reports are found in the American archives.

Secondly; all the Muslim Turkish States, especially the Ottoman State, materialized all their military operations completely within the limits of Islamic Legislation. According to Islamic Legislation, even in a situation of actual war Islamic armies are banned from committing certain acts against the people and goods of the enemy and particularly massacres. One of the most significant reasons that enabled our ancestors to run from a victory to another was their verbatim ac litteratim observance to those principles. In fact, their victories were proportionate to their obedience to those essentials. Let us summarize the banned acts and explain why the alleged massacre was impossible: killing enemy soldiers through tortures and tyranny and murdering such unwarring people as women, children, slaves who had come to serve their masters, the disabled and the chronic, the old, the sick, the mad, and the ecclesiastic who gave up mundane life were forbidden. Nevertheless, if any one of the heretofore listed people participated in a battle with his/her body, intellect or goods, it would be permissible that they be killed. Again, it was illegal that any parts of the body of either human beings or animals be mutilated (muslah). It was unlawful to act against a given promise or a signed treaty. Agricultural produces, forests or trees could not be cut down without any belligerent necessity. Adultery or illegitimate relations were prohibited. Hostages could not be killed. The head or body organs of the dead could not be mutilated; and no massacre could be committed. Close relatives – and particularly the father, tradesmen and merchants, who had nothing to do with war, could not be murdered. Whereas there happened to be further inhibitions, we here suffice with the ones mentioned heretofore.

The above-said provisions were also known by Tal'at Pasha, who issued the decree of deportation. In fact, although the documents in the Ottoman Archives have been divulged to researchers and the accusers have been challenged to prove their allegations ever since 1986, no jurist – be they Muslims or non-Muslims – has come across a single document to prove that the Ottoman State committed a massacre.

Thirdly; as for the legal basis of Tahjir, viz. Deportation, the Exalted Prophet Muhammad deported the Jews of Quraizids from Madinah, for they betrayed although they had promised to protect the city as their common land against the foes. Thus it is permissible to carry out deportation with the same reason, as was in the case of the Ottoman State in April 1915.

Consequently, although there is no truth in it, that the Muslim Turkish nation has been continuously accused for almost a century of having committed an Armenian genocide is neither historical nor scientific but solely political. By opening the Ottoman Archives the Turkish Republic has given the best reply to such allegations [6].

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[1] Prime Ministerial Ottoman Archives, Books of Churches, Book of Kamamah, No: 8.
[2] BA, Book of Muhimmah, no. 5, pg. 70, Decree 161; no. 7, pg. 258, Decree 721; no. 70, Decree 416; no. 72, Decree 264, 903; BA, Imperial Rescript, no. 36515-A; The Archives of Topkapý Palace Museum, no. E. 9297/13; Ergin, Al-Majallah al-Umur al-Baladiyyah, v. I, pg. 217; Paris Bib. Nat. msh. Fonds turc anc. n. 130, doc. 78; Ýskender Hoçi Yanko, "Delivery of Galata to the Ottomans", TOEM, no. 25, pgs. 49-53; Saffet, "The Ottoman Banners in the Caspian Sea", TOEM, no. 14, pgs. 857-861; Ahmed Refik, "The Caspian Bea – Black Sea Canal and the Campaign of Ejderhan", pgs. 1-14; Ahmed Refik, "The Issue of Open Sea in the Tenth Century and the Battle of Azov", TOEM, no. 17(94), pgs. 261-275; Ýnalcýk, Halil, "The Origin of Ottoman-Russian Rivalry and Attempts for Don-Volga Canal (1569)", pgs. 349-402; Wittek, Paul, "From the Defeat of Ankara to the Conquest of Istanbul (1402-1455)", pg. 566; Akgündüz, The Ottoman Codes, v. I, pgs. 476-479; Akgündüz, Ahmed, Documents Speak the Truth, Izmir 1990, v. 2, pgs. 10-13; Meriç, Cemil, From Prosperity to Civilization, Istanbul 1979, pg. 197; De La Jonquiere, Histoire de I'Empire Ottoman, sh. 164; Kantemir, v. 1, pg. 154; Downey, Fairfax, Sultan Sulaiman the Lawmaker , trans. Enis Behiç Koryürek, Istanbul 1975, pg. 99; Emecen, Feridun, "The Political History of the Ottomans", History of the Ottoman State and its Civilization, v. 1, pgs. 33-45; Board, Illustrated and Mapped History of the Ottoman State, v. 2, pg. 788; Uzunçarþýlý, Ýsmail Hakký, "Documents and Investigation Reports concerning the flowing of the River Sakarya into the Bay of Izmit thus joining the Sea of Marmara with the Black Sea", Belleten, v. IV, no. 14-15 (1940), pgs. 149-174; Kuznetzova, N.A., "Russian – Persian Trade in the XVI. Century and the Ottoman State", Belleten, v. LII, no. 202 (1988), pgs. 246-256; Beydilli, Kemal, "The Small States of Europe in face of the Closure of the Black Sea and "the Attempts for State Trade", Belleten, v. LV, no. 212-214(1991), pg. 687 et seq.; Çubukçu, Ýbrahim Agâh, "Religion in our Cultural History", Belleten, v. LIV, no. 210 (1990), pgs. 772-803; Yücel, Ya'þâr, "A Reformist Sultan: Sultan Muhammad the Conqueror", pgs. 79-86.
[3] Legal Reforms, BA, YEE, no. 14-1540, pg. 4 et seq.; Kasani, Bedâyi', v. VII, pg. 100; A Guide to Procedures, Bend, 213 et seq.; Taqwim al-Wakayi (Ottoman Official Gazette), no. 1044; Ahmed Refik, Life in Istanbul in the Twelfth Century, A.H., Istanbul 1988, pgs. 53-54, 83-84, 157, 105, 227 et seq.; Zeydan, The Decrees on Dhimmis (non-Muslim citizens), pg. 10 et seq.; 95 et seq.; Cin-Akgündüz, Turkish Legal History, v. II, pg. 310 et seq.

[4] Ibn'ul-Qayyim Al-Jawzi, Ý'lam-ul-Muwaqqýîn, v. IV. pgs. 372-378; BA, YEE, no. 14-1540, pg. 12 et seq.; Cin-Akgündüz, Turkish Legal History, v. I, Konya 1989, pgs. 140, 157.
[5] BA, YEE- 23-1515; 14-1540, 1610; BA, YEE, nr. 23-1516, sh. 2 vd.; BA, YEE, nr. 23-1421-11-71; YEE, 23-1515; BA, YEE, nr. 14-1610; Alûsî, Mahmûd, Ruh'ul-Maanî I-XXX, Beyrut, c. 28, sh. 20 vd. Ayrýca bkz. Ýbn'ül-Kayyým, Ý'lâm'ül Muvakkýîn, an Rabbi'l-Âlemîn I-IV, Beyrut 1973, c. 4, sh. 372-377; Baykal, Bekir Sýtký, "93 Meþrutiyeti", sh. 45-83; Baykal, Bekir Sýtký, "Birinci Meþrutiyete Dair Belgeler", Belleten, c. XXIV, sayý 96(1960), sh. 601-636; Pakalýn, Mehmed Zeki, Son Sadrazamlar ve Baþvekiller, Ýstanbul 1940, c. I, sh. 325 vd.; Said Nursî, Divan-ý Harb-ý Örfî, 66-67; Münâzarât, Teksir, 10 vd.; Mürsel, Safa, Devlet Felsefesi, 259 vd.; Akgündüz, Ahmed, Eski Anayasa Hukukumuz ve Ýslâm Anayasasý, Ýstanbul 1997; Ebül-Ülâ, Mardin, Medenî Hukuk Cephesinden Ahmed Cevdet Paþa, Ýstanbul 1946, sh. 8-10, 143; Karakoç, Tahþiyeli Kavanin, c. II, sh. 29 vd.; Okandan, Âmme Hukukumuzun Anahatlarý, c. I, sh. 134 vd.; Düstur, I. Ter. 4/2-3; 1293/1876 tarihli Kanun-i Esasi, md. 42-78; md. 3, 7, 11 (Düstur, I. Ter. 4/4-58); Ýbn'ül-Emin Mahmut Kemal, Son Sadrazamlar, c. I, sh. 325 vd. (II. Abdülhamit'in takdim nutku); Okandan, Âmme Hukukumuzun Anahatlarý, c. I, sh. 143 vd.; 150-151; Osman Nuri, Abdülhamid-i Sâni ve Devr-i Saltanatý, Ýstanbul 1327, sh. 30-100; Okandan, Âmme Hukukumuzun Anahatlarý, c. I, sh. 116-134; Mahmûd Celâleddin Paþa, Mir'ât-ý Kâinât, c. I, sh. 188-200, 220-224; Karal, Osmanlý Tarihi, c. VIII, sh. 215-230.
[6] Kur'ân, Haþr, Âyet 1-2; Elmalý, Muhammed Hamdi, Hak Dini Kur'ân Dili, sh. 4806-4819; Süslü, Azmi, Ermeniler ve 1915 Tehcir Olayý, Ankara 1990, sh. 61-177; Öztuna, Osmanlý Devleti Tarihi, c. I, sh. 659-662; Uras, Esat, Tarihte Ermeniler ve Ermeni Meselesi, Ýstanbul 1987, sh. 149-639; Sonyel, Salâhi R., "Yeni Belgelerin Iþýðý Altýnda Ermeni Tehcirleri", Belleten, c. XXVI, sayý 141(1972), sh. 31-49; Sonyel, Salâhi R., "Tehcir ve "Kýrýmlar" Konusunda Ermeni Propogandasý Hýristiyanlýk Dünyasýný Nasýl Aldattý?", Belleten, c. XLI, sayý 161(1977), sh. 137-175.

 

* Prof. Dr. Ahmed Akgündüz - Rector, The Islamic University of Rotterdam

Güncelleme Tarihi: 20 Eylül 2018, 18:16
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