Balancing Sharia: The Ottoman Kanun

Balancing Sharia: The Ottoman Kanun

By Professor Edhem EldemBogazici University, Istanbul

Hagia SofiaHagia Sophia was used as a church for 916 years but, following the conquest of Istanbul by Fatih Sultan Mehmed, it was converted into mosque. In 1935 under the order of Atatürk it became a museum

The Ottoman Empire lasted 600 years, spreading from what is now Turkey to span three continents. Under Suleiman the Magnificent (1520-1566) it stretched across most of the Middle East and North Africa, as well as the Balkans, the Black Sea, and Eastern Europe, and came close to capturing the Austrian capital, Vienna.

The scale of the Ottoman empire’s achievements was made possible by reconciling secular politics with Islam – balancing the demands of the religious establishment with the ambitions of the sultans and the army. For the Ottomans this was the Kanun; a secular legal system that co-existed with religious law or Sharia.

Borrowed from the Arabic qānūn; the word originated from the ancient Greek kanôn (κανών), describing a measure, a norm, a standard, a rule, and by extension a law. In English, the same word is used to describe a high standard, as in a “canon of beauty”; it is also used to describe “canon law,” or the body of laws upheld by the Church.

Sharia is derived directly from the Koran and the Sunnah, or path, of the Prophet Muhammad. Originally designed to regulate a relatively small community of believers, as Islam spread and matured under increasingly complex state structures and ever growing diverse populations, it became difficult to address certain matters based on Sharia alone.

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The Ottoman Empire

The face of Sultan Suleiman the Magnificent
  • The Ottoman Empire was the one of the largest and longest lasting empires in history
  • It was an empire inspired and sustained by Islam and Islamic institutions
  • It reached its height under Suleiman the Magnificent (reigned 1520-66), when it expanded to cover the Balkans and Hungary, and reached the gates of Vienna
  • The Empire began to decline in the 16th Century and was effectively finished off by the WWI and the Balkan Wars
  • Why was the Ottoman Empire so successful?

The sultans of the Ottoman Empire realised this and used the Kanun to complement, supplement, and sometimes supplant religious law.

Sharia was simply not sufficient to deal with needs such as taxation, administration, financial matters, or penal law. The basic idea was to complement Sharia with a number of rules and decrees enforced by the secular authority.

Another disadvantage of Sharia was that its application depended greatly on the interpretation of sources by the ulema (scholars), making standardisation difficult. This was particularly true of the Sunnah, the path of the Prophet, best described as the way of life and deeds that he himself followed, advocated, or approved of, and which was recorded by his followers in a series of hadiths (traditions).

The value and meaning given to one tradition or another could vary according to context, and from one legal expert to another. What could satisfy the needs of a small community could easily fail to respond to the requirements of a state administration in terms of scope and predictability.

The Ottomans were not the first Islamic state to make use of secular Kanun; but they brought its use and implementation to an unprecedented level as their state rapidly developed from a frontier principality in the early 14th Century to a fully-fledged empire 200 years later.

This rapid growth had forced the Ottoman elite to develop an ideology of their own, focused on the pre-eminence of the sultan.

Having embraced Islam relatively late, and surrounded by a number of other Muslim states, stressing their own distinctive ideology acquired even greater importance. The initial Ottoman expansion had also taken place at the expense of Christian lands in western Anatolia and the Balkans, particularly the Byzantine Empire, which was reduced to a mere shadow of its past glory.

These contacts had exposed the conquering Ottomans to different legal practices, while at the same time forcing them to work out ways of integrating sizeable non-Muslim populations into the system.

Battle Scene from the Wars of the Ottoman Empire in Europe, Jan van HuchtenburghThe initial Ottoman expansion took place at the expense of Christian lands in western Anatolia and the Balkans, particularly the Byzantine Empire

The first concrete examples of the codification of Ottoman Kanun took form towards the end of the 15th Century. This was a period of consolidation of sultanic authority following the symbolically crucialconquest of Constantinople in 1453. By becoming a de facto heir to the Roman Empire, via the Byzantine, the Ottomans had progressed from a confederation of frontier warlords to the much more demanding role of an empire under a single and unchallenged rule.

The Kanun was one of the principal instruments of this transformation, by granting to the sultan the power he needed to exercise his authority to the full.

The first such codes, called Kanun-name, or literally “book of law”, had to do with financial and fiscal matters, which lay at the heart of state revenues. Based on custom (örf), these documents generally tried to reconcile previously existing practices with the priorities and needs of the Ottoman state.

The best examples are the numerous Kanun-names granted to individual provinces following their conquest. Typically, such a provincial book of law would maintain most of the taxes and dues existing under the previous rule, and simply adapt them to an Ottoman standard.

‘Fratricide’

One of the most decisive outcomes of the use of Kanun was the redefinition of Ottoman society in a two-tiered hierarchy. At the top, were the askeri, literally the “military,” a tax-exempt ruling class consisting of the “men of the sword,” the “men of the book,” and the “men of the pen.” At the bottom, the rest of the population, labeled as the reaya, the “flock,” whose duty was to produce and pay taxes.

One of the biggest challenges for the Ottomans was to impose secular law at the centre of the empire in order to consolidate the position of the sultan at the pinnacle of power. The most extreme example of this was the “law of fratricide” attributed to Sultan Mehmed II, known as the Conqueror after he took Constantinople in 1453.

The text of this law was brief but terrifying: “Whichever of my sons inherits the sultanate, it behooves (is necessary for) him to kill his brothers in the interest of the world order; most jurists have approved this; let action be taken accordingly.”

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Whichever of my sons inherits the sultanate, it behoves him to kill his brothers in the interest of the world order…”

The law of fratricideUsed in the time of Sultan Mehmed II

This was a perfect example of secular law permitting an act that Sharia would have never condoned – the assassination by a newly enthroned sultan of all his brothers for fear of a repetition of the fratricidal conflicts that had plagued the Ottoman system of succession.

This law was maintained and followed for about a century and a half, until popular reaction and fear of dynastic extinction led to the unfortunate brothers being held in captivity instead of killing them.

The mention in the law that “most jurists have approved this” suggests there was an effort to prove that this law was compatible with Sharia; and also, that this opinion was not unanimous and that there must have been a good deal of arm-twisting to obtain the approval of “most jurists”, unless this was entirely a legal fiction.

This potential tension between Kanun and Sharia provides precious insight into the dynamics of Ottoman power politics and state building during the same period.

These transformations of the Ottoman system present striking similarities with what was happening in Western Europe at the same time. The efforts deployed by all these states to control taxation in order to promote the growth of a central army and bureaucracy are at the very centre of the emergence of the early modern state.

SunsetAt its height the Ottoman lands stretched over more than one million square miles

Crown and Church were also pitted against each other in the struggle over resources and authority. By trying to exert increasing control over the religious hierarchy, the Ottomans hoped to force it into submission and turn it into yet another instrument of sultanic power.

The reign of Suleiman the Magnificent was a perfect example of this. Religion was gradually brought under state control by the setting up of a hierarchical structure centred in the capital, Istanbul. Any important member of the religious administration had to undergo a centralised process of formation and selection and would depend entirely on the state for any position and promotion.

A new office was also invented to top this structure: that of the sheikhulislam, literally the “leader of Islam”. This individual would oversee the whole system and answer to the sultan, much like the grand vizier would do for secular matters.

Ebussuud Efendi – Suleyman’s sheikhulislam saw to it that conformity between Kanun and Sharia was maintained, at least on paper. The flexibility of his jurisprudence was such that he managed to find ways of legalising interest-bearing loans, a most reprehensible practice by stricter standards of Sharia.

It is rather telling that Suleiman’s nickname in Turkish is not “Magnificent,” but Kanuni, the “Lawgiver,” for it was under his reign the use and formulation of secular law reached its institutional peak.

The initial Ottoman expansion took place at the expense of Christian lands in western Anatolia and the Balkans, particularly the Byzantine Empire
The initial Ottoman expansion took place at the expense of Christian lands in western Anatolia and the Balkans, particularly the Byzantine Empire

The Ottomans: Europe’s Muslim Emperors a three-part television series presented by Rageh Omaar can be seen on BBC Two on Sunday from 6 October.

Is Turkey Headed for Shariah Rule?

Seagulls fly over Golden Horn as the sun sets over the Ottoman-era Suleymaniye Mosque in Istanbul, Nov. 26, 2012. (photo by REUTERS/Murad Sezer)

Seagulls fly over Golden Horn as the sun sets over the Ottoman-era Suleymaniye Mosque in Istanbul

By: Mustafa Akyol for Al-Monitor Turkey Pulse Posted on May 9.

One of the most toxic words in Turkey’s never-ending political wars is “Shariah.” The word, which stands for “Islamic law,” has been a constant fear factor in the secularist narrative. Accordingly, the country’s “Islamists,” such as Prime Minister Recep Tayyip Erdogan and the incumbent AKP (Justice and Development Party), are determined to introduce Shariah to a Turkey whose laws have been resolutely secular since the 1920s. They will, sooner or later, make Turkey “another Iran.”

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Summary :

Mustafa Akyol argues that even if Turkey’s Islamists have a “hidden agenda” of imposing Shariah law, they don’t have much chance because of societal trends.

Author: Mustafa Akyol

Posted on : May 9 2013

Categories : Originals Turkey

In return, both the AKP and other “Islamists” parties in Turkey — including even the marginal Felicity Party, which uses a more explicitly Islamist rhetoric than the AKP — have always denied this accusation. They have, in fact, often taken great pains to explain that they do not oppose the secular state, but only ask for a more religion-friendly secularism, which will, for example, tolerate Islamic headscarves in public spaces. Most secularists, however, refuse to believe in these reassurances. They argue instead that the “Islamists” are doing nothing but taqiyyah, an Islamic concept which implies a strategic denial of a hidden agenda.

But hidden agendas are often impossible to prove or disprove. Therefore, the better method of foretelling Turkey’s future is perhaps not to engage in endless discussions about the deepest corners of Islamist minds, but to figure out what the Turkish society really wants: Is this really a nation that is apt to re-establish Islamic law after almost a century of secular rule?

To find an answer, we can look at the recent survey The World’s Muslims: Religion, Politics and Society, published by the Pew Research Center on April 30. The extensive poll aims at mapping Muslim attitudes across the world on issues such as democracy, religious freedom, women’s rights or science and faith. One section of the study is focused on the Shariah, and it shows how Muslim attitudes on this issue differ immensely from country to country.

The findings in Turkey, based on interviews with some 1,500 individuals who are statistically representative, are particularly interesting. Those Muslims “who favor making Shariah the official law in their country” make up only 12% of the population of Turkey, which is one of the lowest points in all the 37 countries that are surveyed. Notably, the same group is 84% in Pakistan, 86% in Malaysia and 74% in Egypt. The Turkish case is rather similar to Bosnia-Herzegovina or Albania, where only 15% and 12% of the populations, respectively, want to see Shariah as official law.

But what do we exactly mean by Shariah? It is imperative to note that not every Muslim who supports Shariah as a beacon of justice also supports its extreme measures, such as corporal punishments. The Pew survey shows that this nuance exists in every country, although to varying degrees. In Pakistan, for example, 88% of all those who say Shariah should be the law of the land also favor corporal punishments. The same number is 70% in Egypt, 66% in Malaysia and 76% in the Palestinian territories. In Turkey, it is only 35%, similar to the 32% in Bosnia-Herzegovina and 31% in Kazakhstan.

In other words, those Turks who favor corporal punishments make up only 35% of the 12% who want Shariah in the first place — which makes a total 4% of the whole society.

When asked about “death penalty for leaving Islam” — the non-Quranic yet traditional verdict on apostasy — the number of Turks who are supportive comes down even more: 2% of the whole population. In Egypt, however, those who support the execution of apostates make up 63% of the whole society. In Afghanistan, they make up 79%.

These Pew figures about Turkey looked pretty convincing to me, because they resonate with the findings of Turkish political scientists who made surveys on the same matter in the recent past. In 2006, for example, two secular academics supported by TESEV, a prominent liberal think tank, had found that only 8% of Turkish society demanded a “Shariah-based religious regime.” When extreme measures such as stoning were asked about, they noted, the support “even zeroed.”

None of this means that Muslim religiosity is weak in Turkey. Quite the contrary, other polls show that at least 70% of Turks are fairly observant, with visits to a mosque at least once a week and the observation of the Ramadan fast. Yet, the majority of these pious Turks are used to seeing religion as a matter of personal faith, family and the community — just not state and law. Their moral conservatism also leads to some cultural tensions with more secular Turks, on issues such as public intoxication, abortion or Darwinism in education. But these are the “culture wars” that exist in modern societies such as the United States, as well. They are fundamentally different from the Shariah wars in Egypt, Pakistan or even Tunisia.

Hence, here is my answer to the question in the headline of this piece: No, Turkey is not heading toward Shariah rule, because whatever conspiracy “Islamists” might have in mind, there is very little societal support for it. This does not mean that the conservative-secularist tension will fade away, because opposing views on the role of religion in public life are likely to keep Turks busy with bitter disputes. But, in the end, they will not give you another Iran, Sudan or Afghanistan.

Mustafa Akyol is a contributing writer for Al-Monitor’s Turkey Pulse and a columnist for Turkish newspapers Hürriyet Daily News and Star. His articles have also appeared in Foreign Affairs, Newsweek, The New York Times, The Washington Post, The Wall Street Journal and The Guardian. He is the author of Islam Without Extremes: A Muslim Case for Liberty, an argument for “Muslim liberalism.” On Twitter: @AkyolinEnglish

 

 

Read more: http://www.al-monitor.com/pulse/originals/2013/05/turkey-shariah-law-islamists-paranoia.html#ixzz2SrijVJlS

Atefeh Rajabi Sahaaleh

English version below

15251_459244600826100_1389589131_nATEFAH SAHAALEY KİM Mİ ? OKUYUN

İslamiyet öylesine özgürlüklerin yaşandıgı bir din ki (!)

Atefah daha 13 yasindayken bir erkekle tek basina ayni arabada görüldügü icin hapis cezasina carptiriliyor, suçu iffetsizlik. Hapisten cikar cikmaz 51 yasindaki evli ve cocuk sahibi bir taksi şöförü tarafindan tecavüze ugruyor (Hüseyin Üzmez geliyor akla).

Sonra mı ?

İmzasiz bir sikayet üzerine yeniden tutuklaniyor Atefah iskence ile sorgulaniyor, sorgulayici, hakim ve savci ayni kisi bu arada, tamamen İslami usül sorgu sirasinda tecavüze ugradigini “itiraf” ediyor. Bunun uzerine, 16 yasinda, idama mahkum ediliyor .Atefah. 2 gün icinde yüksek mahkemeden izin aliniyor ve halka ibret olmasi icin kendi sehrinin, tanidigi insanlarin oldugu sehrin meydaninda idam edilmesine karar veriliyor.

Ailesini son kez görmesine bile izin verilmiyor, acelesi var cünkü müslümanların. Acilen öldürülmesi gerek bu iffetsiz kizin ve öldürüyorlar da, 40 dakika boyunca asiyorlar Atefah’yi, müslüman tanidiklarinin alkislari ile birlikte.

Bir sehrin daha iffeti kurtuluyor.

Sonra 22 yasinda oldugu iddia edilen Atefah’nin 16 yasinda oldugu anlasiliyor,cesedi caliniyor ertesi gün, mezarindan, büyük ihtimalle ahlakli müslümanlar (!) tarafindan…

Tecavüzcüler ise serbest, kirbaçla atlatiyorlar , tam da islam’a yakisir sekilde, iffetlice.

Türkiye’de de iffetli müslümanlarımız kara carsafla Nisantasi’nda yürüyememekten dem vuruyorlar.

Kafalarini dünyaya kapadiklari basörtusüyle, amaci insanin kafasini acmak olan Üniversitelere girememeyi elestiriyorlar,amaçları imam yetistirmek olan imam hatiplerden mezun olup, amaci bilim insanı üretmek olan Üniversitelere girememeyi anlamsiz buluyorlar.

Müslümanca yaşanacak bir ülke özlemi içinde olanlar, bilin ki karsinizda her zaman sizden daha fazla sayida, sizin pisliklerinize karsi koyacak bir kitle olacak, kendi pisliginiz icinde bogulmaniz dilegiyle…

_Eos

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Erdogan dreams of full sharia law in Turkey

Daniel Pipes

From: The Australian

THE menu for meals on my Turkish Airlines flight this month assured passengers that food selections “do not contain pork”. The menu also offered a serious selection of alcoholic drinks, including champagne, whisky, gin, vodka, raki, wine, beer, liqueur and cognac.

This oddity of simultaneously adhering to and ignoring Islamic law, the sharia, symbolises the uniquely complex public role of Islam in today’s Turkey, as well as the challenge of understanding the Justice and Development Party (known by its Turkish abbreviation, AKP) which has dominated the country’s national government since 2002.

Political discussions about Turkey tend to dwell on whether the AKP is Islamist or not: In 2007, for example, I asked “what are the AKP leadership’s intentions? Did it retain a secret Islamist program and simply learn to disguise its Islamist goals? Or did it actually give up on those goals and accept secularism?”

During recent discussions in Istanbul, I learned that Turks of many viewpoints have reached a consensus about Prime Minister Recep Tayyip Erdogan: they worry less about his Islamic aspirations than his nationalist and dictatorial tendencies.

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Applying the sharia in full, they say, is not a feasible goal in Turkey because of the country’s secular and democratic nature, something distinguishing it from other Muslim-majority countries (except Albania, Kosovo and Kyrgyzstan). Accepting this reality, the AKP wins ever-greater electoral support by softly coercing the population to be more virtuous, traditional, pious, religious, conservative, and moral.

Thus, it encourages fasting during Ramadan and female modesty, discourages alcohol consumption, attempted to criminalise adultery, indicted an anti-Islamist artist, increased the number of religious schools, added Islam to the public school curriculum, and introduced questions about Islam to university entrance exams. Put in terms of Turkish Airlines, pork is already gone and it’s a matter of time until the alcohol also disappears.

Islamic practice, not Islamic law, is the goal, my interlocutors told me. Hand chopping, burkas, slavery and jihad are not in the picture, and all the less so after the past decade’s economic growth which empowered an Islamically oriented middle class that rejects Saudi-style Islam.

An opposition leader noted that five districts of Istanbul “look like Afghanistan,” but these are the exception. The AKP seeks to reverse the anti-religiousness of Ataturk’s state without undermining that state, aspiring to create a post-Ataturk order more than an anti-Ataturk order.

It seeks, for example, to dominate the existing legal system rather than create an Islamic one. The columnist Mustafa Akyol even holds the AKP is not trying to abolish secularism but that it “argues for a more liberal interpretation of secularism”. The AKP, they say, emulates the 623-year-old Ottoman state Ataturk terminated in 1922, admiring both its Islamic orientation and its dominance of the Balkans and the Middle East.

This neo-Ottoman orientation can be seen in the Prime Minister’s aspiration to serve as informal caliph, by his change in emphasis from Europe to the Middle East (where he is an unlikely hero of the Arab street), and his offering the AKP’s political and economic formula to other Muslim countries, notably Egypt. (Erdogan staunchly argued for secularism during a visit there, to the Muslim Brotherhood’s dismay, and looks askance at Mohamed Morsi’s ramming sharia down Egyptians’ throats.)

In addition, Ankara helps the Iranian regime avoid sanctions, sponsors the Sunni opposition against Syria’s Bashar al-Assad, picked a noisy, gratuitous fight with Israel, threatened Cyprus over its underwater gas finds, and even intervened in the trial of a Bangladeshi Islamist leader.

Having outmanoeuvred the “deep state,” especially the military officer corps, in mid-2011, the AKP adopted an increasingly authoritarian cast, to the point that many Turks fear dictatorship more than Islamisation.

They watch as an Erdogan “intoxicated with power” imprisons opponents on the basis of conspiracy theories and wiretaps, stages show trials, threatens to suppress a costume television soap opera, seeks to impose his personal tastes on the country, fosters antisemitism, suppresses political criticism, justifies forceful measures against students protesting him, manipulates media companies, leans on the judiciary, and blasts the concept of the separation of powers. Columnist Burak Bekdil ridicules him as “Turkey’s elected chief social engineer”. More darkly, others see him becoming Turkey’s answer to Vladimir Putin, an arrogant semi-democrat who remains in power for decades.

Freed of the military’s oversight only in mid-2011, I see Erdogan possibly winning enough dictatorial power for him (or a successor) to achieve his dream and fully implement the sharia.

Daniel Pipes is president of the Middle East Forum.

via Erdogan dreams of full sharia law in Turkey | The Australian.