The redaction of case documents during the modernization period (1879-1924) in the Ottoman Empire

In this study, documents from two different courts that resolved conflict based on different legal systems in the Ottoman Empire during the modernization period have been examined. The courts that are the subject of this study are the sharia and nizamiye courts. Sharia courts are the courts where cases are settled with the rules that originate from the science of "fiqh", and the nizamiye courts are based on modern "law". Legal systems applied in both courts were described, and the teaching of the legal system has been discussed in this thesis. By using primary and secondary sources, judicial styles of documents prepared during the trial of a case and registers in sharia and nizamiye courts were discussed. This discussion was conducted in separate chapters. This thesis consists of an introduction, three main chapters, and a conclusion part. In the first chapter, the legal systems of the Ottoman Empire during the modernization period were discussed. After the declaration of the Edict of Gülhane, legal thought and institutions of western law influenced the Ottoman legal system. Therefore, in this work, the term modernization is used as synonymous with the concept of "Westernization". While we explain the legal systems in force in the Empire during the modernization period, firstly, the rules used in the sharia courts are examined. What makes this period unique in terms of sharia courts is that the rules applied in cases are codified in the text called Mecelle-yi Ahkâm-ı Adliye. Therefore, when approaching the rules applied in sharia courts, we examined the period before and after the promulgation of the Mecelle-yi Ahkâm-ı Adliye separately. Since we believe there is a close relationship between the legal system in effect and the education provided to legists who will hear according to these rules, the higher education provided to kadıs during the modernization period was examined in the first section of the first chapter. In the second section of the first chapter, the legal system applied in nizamiye courts is introduced. In this part, firstly, the historical development of the civil part of the nizamiye courts, that have become part of the Ottoman judicial organization during the modernization period, was explained. Then the distinctive character of these courts was emphasized, information was given about the jurists who will be in charge of the nizamiye courts, and the education of these jurists was examined. Mekteb-i Hukuk is the most important school where institutional, modern legal education is given during this period. This school opened in İstanbul to train jurists who will serve in nizamiye courts. Hence, while examining the training of jurists, we focused on the Mekteb-i Hukuk. We discussed how the concept of "law" was defined during the modernization period, and how it was classified and examined, based on the lectures given at Mekteb- i Hukuk and the books published by the teachers or graduates of this school. In the second chapter, the manner of registration of cases in sharia courts is examined, and the documents prepared in sharia courts during the dispute resolution are explained. While making an explanation, we consider the situation before and after the modernization period. As far as we know, before the modernization period, court document that contain information about a case which had been resolved in sharia courts is the judgment of the kadı. These documents are kept in sharia court registers. Since the last quarter of the 19th. century, there is an obligation to keep "minutes of the hearing" in all sharia courts. It is noticed that, as a result of this obligation, the new official register called "Zabt-ı Dava Cerîdesi" was kept in these courts. Hence, in the second section of the second chapter, we explained the process of preparing minutes of the hearing and judgments of the sharia courts. In the second section of the second chapter, the case documents prepared before the promulgation of the Mecelle-yi Ahkâm-ı Adliye are assessed. It is understood that, from the beginning to the end of a case, the document in sharia court registers from which information can be obtained about the actions was the documents called "ilâm", which means "the judgment of the kadı". The manner of the redaction of sharia court judgment is determined by the discipline of fiqh called "sakk ilmi". The corrected and reviewed examples of sharia court judgment are collected in sakk collections. Kadıs have written the judgment of the case, based on these collections. In our study, we detected firstly, the sakk collections exemplified by the Ottoman Sultan to kadıs with the object of the writing of the judgments in 19th. century. Then, we determined two different sharia court judgments containing similar case subjects from these collections and examined these judgments. After this examination, we asked whether the examples in sakk collections are binding for the kadı. To answer this question, it has been investigated if there was a regular/systematic control of sharia court judgment according to the samples in sakk collections by a central institution of the Ottoman Empire. As a result of our research, we concluded that the regular/systematic control of sharia court judgments by a central institution of the Ottoman Empire was not carried out before the promulgation of 16th. chapter of the Mecelle-yi Ahkâm-ı Adliye's which was about the administration of justice. In the 16th chapter of the Mecelle-yi Ahkâm-ı Adliye's, the supervision of judgment is regulated. As a result, during the modernization period, regular/systematic control of sharia court judgment became possible. Appellate divisions for sharia court judgments are Fetvahâne and Meclis-i Tetkîkât-ı Şeriye. They are affiliated with Şeyhülislamlık, one of the central institutions of the Ottoman Empire during the modernization period. To understand the substance of the case documents prepared by the sharia courts, it is important to know the essence of regular/systematic control of the sharia court judgment. Therefore, in the third section of the second chapter, appellate review for sharia court judgments during the modernization period was described. While explaining the appeal procedure applied in the Sharia courts, firstly the legislation was used; but official sources were not sufficient. To understand the appellate review of the sharia court judgment in the Ottoman Empire, we researched books on the issue of preparing case documents. In this scope, the books of Ali Haydar Efendi, who served as a kadı in various places of the Ottoman Empire and also served as the president of the Fetvahâne, one of the appellate divisions for sharia court judgment, were used. Based on the books of Ali Haydar Efendi, we revealed the nature of appellate review for sharia court judgments during the modernization period. In the fourth section of the second chapter, the sharia case documents prepared after the enactment of the Mecelle-yi Ahkâm-ı Adliye are examined. In this part, we used zabt-ı dava cerîdes and sharia court registers. While examining judicial styles of the sharia court judgment, the official publication of Şeyhülislamlık that sharia courts are affiliated with, called Cerîde-yi İlmiye, was used. In this bulletin, the sharia court judgments were published as an example for kadıs while writing their judgment. We followed the structure of the judgments published in Cerîde-yi İlmiye and also used their context. We have determined that the parties of the case, the contest-response statements, and the evidence, in short, both the reasoning and the decision of the kadı are written in detail in judgments during the modernization period. After the promulgation of the provisions of 16th. chapter of Mecelle-yi Ahkâm-ı Adliye's, the appeal procedure for sharia court judgment has been officially adopted. The proceeding that took place in the sharia court must be shown in the sharia court judgment so that it can be examined whether the cases were duly heard. It has been concluded that, from the last quarter of 19th. century, the necessity of recording every stage of the sharia procedure in zabt-ı dava cerîdes, and the fact that the sharia court judgments became longer and more detailed during this period are related to the promulgation of Mecelle-yi Ahkâm-ı Adliye's appellate provisions. The rules of fiqh applied in the sharia courts have been created and developed by the activities of Muslim jurists. Depending on the methodology followed by Muslim jurists, different rules were formulated and these rules were expanded. With Mecelle-yi Ahkâm-ı Adliye, the Ottoman Sultan chose from the rules of fıqh those that will be applied to procedures and principles of actions. This choice applied by the Sultan's edict and materialised in Mecelle-yi Ahkâm-ı Adliye, caused the rules of fiqh to become as an act. Kadıs were obliged to consider by the rules codified in Mecelle- yi Ahkâm-ı Adliye during the trial and when making their judgement. In the last section of the second chapter, we aimed to determine whether the Mecelle-yi Ahkâm-ı Adliye is binding in terms of the fatwa of muftis as well as kadıs and whether it leaded changes in the fatwas. For this purpose, at the stage of the hearing, fatwas requested by the kadıs from the muftis were examined. It has been noticed from the fatwas contained in the court records examined in this study, references to Mecelle-yi Ahkâm-ı Adliye's articles are made, and sometimes fatwas were formulated only as a reference to Mecelle-yi Ahkâm-ı Adliye's articles. Consequently, according to official records prepared in the sharia courts during the modernization period, we have reached that Mecelle-yi Ahkâm-ı Adliye is the main text which determines the judicial styles of the case records. Mecelle-yi Ahkâm-ı Adliye engendered a change from the application of the rules contained in the fiqh books to the application of legislation. In the third chapter, the registration of cases handled in the first instance nizamiye courts after 1879 has been examined. In the first section of the third chapter, nizamiye court registers qualified through legislation. Classification of the documents and registres of the nizamiye courts has not yet been made in our archives. Therefore, we described the sources that will be used in our thesis. We used, Cerîde-yi Adliye, the official publication of Adliye Nezareti that nizamiye courts are affiliated. Besides the Cerîde-yi Adliye, we used the nizamiye court registers and the books called "sakk- i adlî" to explain the judicial styles of the case documents of nizamiye courts. The binding rule is called sakk-i adlî regardless of the writing of the documents that will prepare both the parties to the case and the court. In these books, documents which have to be prepared by either the plaintiff and the defendant or the court are introduced and they contain many examples of it. The most important among sakk-i adlî books are the works that belonged to one of the judges of the court of cassation, Şevki Efendi. When he was a judge in Court of Cassation, Şevki Efendi lectured preparation of documents of cases which handled in nizamiye courts. After explaining the sources to be used, we gave information about the nizamiye court registers, and the preparation process of these registers. The rules applied in nizamiye courts, that is law, were made by Ottoman Sultan/parliament or these rules were codified by Sultan. In these courts, principles of the procedure such as how the parties will declare their claims and defenses, and which rules the parties and judges must follow during the case are determined by the official legislations. The essential regulation determining the types of documents to be prepared for cases is the Civil Procedure Law which was promulgated in 1879. Due to these reasons, when we explain documents of cases, the provisions of the Civil Procedure Law are taken into account. To establish the relationship between legislation and court records, we gave examples from the nizamiye court records. While determining the type of nizamiye court records, we followed essentially provisions of the Civil Procedure Law. After clarifying the type of these registers, we examined legal documents relavent a civil case handled in first instance nizamiye courts. In this examination, three basic documents are discussed: petitions, minutes, and judgments. Afterward thirty years of application of the Civil Procedure Law, the result of this Law in terms of settlement of the dispute was discussed. Therefore, fundamental amendments were made to Civil Procedure Law with the Additional Articles (Zeyl) that entered into force in 1911. While keeping in mind that Civil Procedure Law is the most important legislation determines the judicial styles of case documents, it can be concluded that this amendment directly influenced legal documents. For this reason, the judicial styles of the legal documents prepared before and after the amendment in 1911 were discussed in separate sections. In the second and third sections of the third chapter, the procedure of bringing an action in nizamiye courts, the judicial styles of the petitions prepared by the plaintiff and the defendant are discussed with exemples. In these sections, the petitions were explained considering the 1911 Additional Articles which made amendments to Civil Procedure Law. In the fourth section of the third chapter, documents prepared during and after the trial were examined. We explained the procedure of minutes prepared and the method of writing judgment of the nizamiye courts of the first instance. Judicial styles of minutes and judgments were examined, and we included examples of these documents. Since the end of the 18th century, as a result of codification, codes in the modern sense were created in Continental Law. These codes were sometimes the models for the legislation prepared in the Tanzimat Period, and sometimes these were adapted by the Ottoman Empire. The main source of the rules that determine the procedure in the nizamiye courts is modern codes. This procedure applied in the nizamiye courts was new to the Ottoman Empire. Thereby, modern Continental law system affected the method of hearing and reasoning of the civil cases, application and interpretation of rules. These cases were resolved according to the logic of modern law. Western jurists were influenced modern law in action in Ottoman nizamiye courts by their books and opinions. Consequently, within the scope which we examined, we have reached that the main rules determining the judicial styles of nizamiye court documents originated from modern Continental Law.