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.
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The
Decree of Rights of Minorities Granted to Galata Christians |
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The
Decree of Rights of Minorities Granted to Galata Christians |
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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). |
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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 Hınchaq 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 Kızıl 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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[4] Ibn’ul-Qayyim Al-Jawzi, İ’lam-ul-Muwaqqıîn, 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. Ayrıca bkz. İbn'ül-Kayyım,
İ'lâm'ül Muvakkıîn, an Rabbi'l-Âlemîn I-IV, Beyrut 1973, c. 4, sh. 372-377;
Baykal, Bekir Sıtkı, “93 Meşrutiyeti”, sh. 45-83; Baykal, Bekir Sıtkı, “Birinci
Meşrutiyete Dair Belgeler”, Belleten, c. XXIV, sayı 96(1960), sh. 601-636;
Pakalın, Mehmed Zeki, Son Sadrazamlar ve Başvekiller, İstanbul 1940, c. I, sh.
325 vd.; Said Nursî, Divan-ı Harb-ı Örfî, 66-67; Münâzarât, Teksir, 10 vd.;
Mürsel, Safa, Devlet Felsefesi, 259 vd.; Akgündüz, Ahmed, Eski Anayasa Hukukumuz
ve İslâm Anayasası, İstanbul 1997; Ebül-Ülâ, Mardin, Medenî Hukuk Cephesinden
Ahmed Cevdet Paşa, İstanbul 1946, sh. 8-10, 143; Karakoç, Tahşiyeli Kavanin, c.
II, sh. 29 vd.; Okandan, Âmme Hukukumuzun Anahatları, 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); İbn'ül-Emin Mahmut Kemal, Son Sadrazamlar, c. I, sh. 325 vd.
(II. Abdülhamit'in takdim nutku); Okandan, Âmme Hukukumuzun Anahatları, c. I,
sh. 143 vd.; 150-151; Osman Nuri, Abdülhamid-i Sâni ve Devr-i Saltanatı,
İstanbul 1327, sh. 30-100; Okandan, Âmme Hukukumuzun Anahatları, c. I, sh.
116-134; Mahmûd Celâleddin Paşa, Mir’ât-ı Kâinât, c. I, sh. 188-200, 220-224;
Karal, Osmanlı Tarihi, c. VIII, sh. 215-230.
[6] Kur’ân, Haşr, Âyet 1-2; Elmalı, Muhammed Hamdi, Hak Dini Kur’ân
Dili, sh. 4806-4819; Süslü, Azmi, Ermeniler ve 1915 Tehcir Olayı,
Ankara 1990, sh. 61-177; Öztuna, Osmanlı Devleti Tarihi, c. I, sh.
659-662; Uras, Esat, Tarihte Ermeniler ve Ermeni Meselesi, İstanbul
1987, sh. 149-639; Sonyel, Salâhi R., “Yeni Belgelerin Işığı Altında
Ermeni Tehcirleri”, Belleten, c. XXVI, sayı 141(1972), sh. 31-49;
Sonyel, Salâhi R., “Tehcir ve “Kırımlar” Konusunda Ermeni
Propogandası Hıristiyanlık Dünyasını Nasıl Aldattı?”, Belleten, c.
XLI, sayı 161(1977), sh. 137-175.
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