Legislating Authority: Sin and Crime in the Ottoman Empire and Turkey by Ruth Miller

Author:Ruth Miller [Miller, Ruth]
Language: eng
Format: epub, pdf
Tags: Religion, History & Theory, Islam, Middle East, Political Science, History, General
ISBN: 9780415655422
Google: Lo_cLwEACAAJ
Goodreads: 16218607
Publisher: Routledge
Published: 2012-12-15T00:00:00+00:00

"HARSH AND SCIENTIFIC": REPUBLICAN TURKISH LEGAL REFORM

It need hardly be noted that Turkey, like Italy, was hugely affected by the First World War. Mustafa Kemal's successful rejection of the Treaty of Sèvres was in fact something of an encouragement to contemporary political leaders who had felt similarly outraged by an unjust peace,44 if also something of a discouragement to their imperial aspirations.45 But other elements of Ottoman and Turkish legal development, including the way in which legal scholars understood "liberal reform," the increasingly nationalist nature of criminal law, and the presence of authoritarian ideologies in legal discourse appear to have followed the Italian model as well.

The ways in which liberalism and authoritarianism interacted in the Ottoman context, for example, were quite similar to the ways in which they interacted in Italy. Ottoman reformers rejected liberal individualism as a basis for their new legal culture, both by subordinating personal law to political law and also by eventually "adopting" the authoritarian Napoleonic code as their first import. Liberal secularism also received very little attention from Ottoman legal scholars. The religious establishment and its ideology formed a key component of modern Ottoman criminal law, and never was there a moment at which a secular separation of the two realms made any sense. Ottoman reformers were similarly indifferent to liberalism's reliance upon revolutionary change. In the Ottoman Empire, we see gradual, top down "conservative modernization" just as we saw in Italy. Indeed, even the purity of radical Republican reform comes into question when we consider the leftover Ottoman functionaries who were in charge of implementing it.

The government did, therefore, see the reform of criminal law as a route toward a radical, progressive modernity, especially to the extent that modernity would strengthen state authority. But they also, like their Italian counterparts, opposed the introduction of a culture of individual rights as opposed to responsibilities46 into their new system. Whenever a hint of liberal individualism does appear in the Ottoman codes, in fact, it is always in reference to the absolutist and eventually authoritarian state surrounding these individuals. Certain liberal structural elements thus did find their way into the Ottoman criminal law system—elements such as a specific and limited definition of the ruler/ruled relationship, the invocation of "rationality" or "organization" in creating the bureaucratic hierarchy of courts, and a circumscribing of some of the powers of traditional elites. But these liberal structures did not grow "deep roots" in the Ottoman Empire for the very logical reason that nobody had ever intended them to. The trajectory taken by Ottoman legal ideology, from the earliest Tanzimat era codes to the final 1938 text indeed involved the repeated acknowledgement of certain liberal concepts, and then the eventual rejection of these concepts in favor of a state-centered form of authoritarian nationalism.

This transformation of legal ideology could not have happened, however, without the support of the religious establishment. Once again, the primary difference between the Italian state/religion relationship and the Ottoman and Turkish state/religion relationship was the relative power and autonomy on the "religion" side of the former equation.

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