Legal Change and Court Practice in Late 19th-century Ottoman Empire
Private Law Practice in Ottoman Nizamiye Courts
The late 19th-century Ottoman Empire witnessed significant legal changes in many fields of law. Two procedural codes and a criminal code were enacted during this period. Substantial private law was codified Islamic law. The jurisdictions of Sharia court’s became narrower and new Nizamiye courts were introduced, which resembled the French three-tier court system. These courts were trying the cases outside the jurisdiction of Sharia courts, i.e. cases other than family law, personal status and pious endowments. My work primarily deals with the court practice in first instance private law chambers of Nizamiye courts. Code of Civil Procedure, a French-Sharia amalgam, and Mecelle, codified Islamic law, provided the normative framework for the operation of courts as well as judgments. The judges of these courts were, in most of the cases, Sharia court judges trained in Islamic law.
Given that the code of civil procedure and the court system contained elements from both French and Islamic law, my research primarily asks how legal practice changed. Did the role of the judge change? Were judges vested with more power and obligations to observe legal and procedural points, even though they were not raised by the parties? Did the introduction of attorney profession and formal procedural culture of Nizamiye courts, as argued by Avi Rubin, put parties under more responsibility to raise issues? Was there a new mode of trial? Did the role, power and obligations of the parties’ change?
A specific aspect that I deal with is evidence and its application. According to the literature, at least in the Hanefite School of Islamic law, it is claimed that written evidence played only a marginal position in the legal practice. However, in late 19th-century Ottoman law, equal status was granted to written and oral evidence. Moreover, under the Ottoman Code of Civil Procedure, the submission of written evidence was obligatory to prove claims exceeding 5000 piasters. In addition, claims against written documents could only be carried out via written documents. How did parties use this different status of written evidence? What does such a change mean within the context of the commercial developments of the 19th-century Ottoman Empire and the world?
The primary sources I am using are the court records of first instance Nizamiye courts, where most of the cases involved debt collection. However, my research tries to answer the abovementioned questions by also considering developments within and around the legal practice. These developments include the introduction of public prosecutors, attorney profession and changes in the legal education. Teaching materials, commentaries, and bureaucratic correspondence will be utilised in order to address these research questions.