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 tımars (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].
 

[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 Topkapı 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; İskender 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; İnalcık, 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; Uzunçarşılı, İsmail Hakkı, “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, İbrahim Agâh, “Religion in our Cultural History”, Belleten, v. LIV, no. 210 (1990), pgs. 772-803; Yücel, Ya’şâr, “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.