Introduction 1

Notes Introduction 1. Michael Baye, Dan Kovenock, and Caspar de Vries, “Comparative Analysis of Litigation Systems: An Auction- Theoretic Approach,” The Economic Journal 115 (2005): 583–601. On the differences between costs of litigation in the United States and Britain, see Richard Posner, “Explaining the Variance in the Number of Tort Suits across U.S. States and between the United States and England,” Journal of Legal Studies 26 (1997): 477–90. 2. For a thoughtful discussion on the history of “the West” as a descriptive category while questioning the analytical validity of this homogenizing category, see Zachary Lockman, Contending Visions of the Middle East: The History and Politics of Orientalism (Cambridge, UK: Cambridge University Press, 2004). On studies that demonstrate the impact-of- the- West genre, see Ed Engelhardt, Turquie et le Tanzimat ou Histoire des rèformes dans l’Empire ottoman depuis 1826 jusqu’a nos jours (Paris: Librairie Cottilon, 1884); H. A. R. Gibb and H. Bowen, Islamic Society and the West: A Study of the Impact of Western Civilization on Moslem Culture in the Near East (two volumes) (London, New York: Oxford University Press, 1950–7); Roderic H. Davison, Reform in the Ottoman Empire, 1856–1876 (Princeton, NJ: Princeton University Press, 1963); Bernard Lewis, The Emergence of Modern Turkey (London, New York: Oxford University Press, 1965); Şerif Mardin, The Genesis of Young Ottoman Thought: A Study of the Modernisation of Turkish Political Ideas, 1856–1876 (Princeton: Princeton University Press, 1962). On a critique on the Turkish historiography of the Tanzimat, see Bülent Özdemir, Ottoman Reforms and Social Life: Reflections from Salonica, 1830–1850 (Istanbul: Isis, 2003), 21–51. For critical analysis of the Declinist discourse, see Cemal Kafadar, “The Question of Ottoman Decline,” Harvard Middle Eastern and Islamic Review 4 (1997–8): 30–75; Donald Quataert, “Ottoman History Writing and Changing Attitudes Towards the Notion of ‘Decline,’ ” History Compass 1 (2003). 3. Suraiya Faroqhi and Fikret Adanır (eds.), The Ottomans and the Balkans: A Discussion of Historiography (Leiden: Brill, 2002). On the early Turkish historiography, see Buşra Ersanlı, “The Ottoman Empire in the Historiography of the Kemalist Era: A Theory of Fatal 160 Notes Decline,” in The Ottomans and the Balkans, 115–54. For the Egyptian representation of its Ottoman past, see Ehud R. Toledano, “Forgetting Egypt’s Ottoman Past,” in Cultural Horizons: A Festschrift in Honor of Talat S. Halman, ed. Jayne L. Warner, vol. 1 (Syracuse: Syracuse University Press, 2001), 150–67. 4. For a detailed survey of the scholarship on Abdülhamid II, see Kemal H. Karpat, The Politicization of Islam: Reconstructing Identity, State, Faith, and Community in the Late Ottoman State (Oxford, New York: Oxford University Press, 2001), 444–7. 5. An indication of this shift is Stanford Shaw’s textbook, still valuable after more than thirty years, which includes a good deal of social and economic history. See Stanford J. Shaw, History of the Ottoman Empire and Modern Turkey (Cambridge, New York: Cambridge University Press, 1976–1977). As Quataert recently wrote, this book “saved Ottoman history from always being reduced to the ‘Eastern Question’ and gave it a life that facilitated the emergence of studies compar- ing and contrasting Ottoman experiences with those of other great political systems.” Donald Quataert, “Remembering Stanford Jay Shaw, 1930–2006,” in H-Net Discussion Networks: H- Turk (posted December 18, 2009), http://h- net.msu.edu/cgi- bin/ logbrowse. pl?trx=vx&list=H- Turk&month=0912&week=c&msg=tWe/ g%2BnFkWuD4oQ%2BN8MuoA&user=&pw=. 6. See, for instance, Albert Hourani, A Vision of History: Near Eastern and Other Essays (Beirut: Khayats, 1961). Roger Owen, “The Middle East in the Eighteenth Century- An ‘Islamic’ Society in Decline? A Critique of Gibb and Bowen’s Islamic Society and the West,” Bulletin (British Society for Middle Eastern Studies) 3 (1976): 110–17. 7. Ursula Wokoeck attributes the success of Orientalism mainly to two factors: first, the timing of Orientalism, namely, its role in the post- structuralist trends that have affected the humanities and the social sciences as a whole, as well as its relevance to contemporary political issues. The moral position that Said takes up with regard to Middle East studies as a product of prejudice and political aspirations is an additional factor. For an analysis of the various aspects of the impact of Orientalism, see Ursula Wokoeck, German Orientalism: The Study of the Middle East and Islam from 1800 to 1945 (London, New York: Routledge, 2009). 8. Ehud R. Toledano, “Social and Economic Change in ‘the Long Nineteenth Century,’ ” in The Cambridge History of Egypt, vol. 2, ed. M. W. Daly (Cambridge, UK: Cambridge University Press, 1998), 252–83. 9. For a theoretical discussion of the conservative and revisionist approaches to the passage to modernity in the Middle East, see Dror Ze’evi, “Back to Napoleon? Thoughts on the Beginning of the Modern Era in the Middle East,” Mediterranean Historical Review 19 (2004): 73–94. Notes 161 10. Juan R. Cole, Napoleon’s Egypt: Invading the Middle East (New York: Palgrave Macmillan, 2007). 11. For a reevaluation of the world-system approach, see Huri İslamoğlu İnan, “Introduction: ‘Oriental Despotism’ in World-System Perspective,” in The Ottoman Empire and the World Economy, ed. Huri İslamoğlu İnan (Cambridge: Cambridge University Press, 1987), 1–24. 12. S. N. Eisenstadt, “Multiple Modernities,” Daedalus 129 (2000): 15. 13. Dipesh Chakrabarty, Provincializing Europe: Postcolonial Thought and Historical Difference (Princeton, NJ: Princeton University Press, 2000). 14. Harry Harootunian, “Ghostly Comparisons,” in Impacts of Modernities, eds. Thomas Lamarre and Kang Nae-hui (Hong Kong: Hong Kong University Press, 2004), 39–40. On the constitution of an evolutionary time and space as a means of empowering the West, see Johannes Fabian, Time and the Other: How Anthropology Makes its Object (New York: Columbia University Press, 1983). 15. Harootunian, “Ghostly Comparisons,” 41. 16. This call echoes Michel De-Certeau’s theorizing in The Practice of Everyday Life (Berkeley: University of California Press, 1984), yet De-Certeau does not deal with non-Western modernities. 17. To my mind, Giddens offers one of the most effective portrayals of modernity as a specific epoch and a state of mind. His analysis con- tains both the institutional and ontological aspects of modernity. He provides a series of characteristics of modernity, some of which may have existed in premodern times, yet they increased in intensity during modern times; among these features are unprecedented reflexiv- ity, separation of time and space, separation of social relations from local contexts of interaction (disembedding), and the rising social function of trust. Anthony Giddens, The Consequences of Modernity (Stanford: Stanford University Press, 1990). 18. For a recent study that explores Ottoman modernity as exhibited and constructed through state prisons during the second Constitutional period (1908–18), see K. F. Schull, “Penal Institutions, Nation- State Construction, and Modernity in the Late Ottoman Empire, 1908–1919” (PhD diss., University of California, Los Angeles, 2007). 19. Max Weber argued that rational legal systems emerged in Europe (and nowhere else) in order to sustain industrial capitalism, which required predictability in judicial decisions concerning contracts. Employing a somewhat circular logic, he argued that the existence of legal ratio- nality in Europe was a major reason that capitalism emerged first in Europe. Max Weber, Economy and Society, two volumes (Berkeley: University of California Press, 1978). Weber’s optimism concerning the relations between capitalism and the rule of law has been subject to extensive criticism, mostly neo- Marxian, that advanced a critical approach to the intersection of law, modernity, and capitalism, overall 162 Notes arguing that concepts such as the rule of law and legal equality are myths meant to conceal the fact that modern legal systems serve the capitalist interests of the wealthier classes. One of the brightest cri- tiques is offered in Neumann’s legal theory, first introduced in 1936, in his PhD dissertation. Franz Neumann, The Rule of Law: Political Theory and the Legal System in Modern Society (Leamington Spa, UK: Berg, 1986). For an analysis of neo-Marxian critique on the con- cept of the rule of law, see William E. Scheuerman, Frankfurt School Perspectives on Globalization, Democracy, and the Law (New York: Routledge, 2007). 20. For a review of this literature, see Mustafa Şentop, “Tanzimat Dönemi Kanunlaştırma Faaliyetleri Literatürü,” Türkiye Araştırmaları Liteatür Dergisi 3 (2005): 647–72. 21. Sedat Bingöl, Tanzimat Devrinde Osmanlı’da. Yargı Reformu: Nizamiye Mahkemelerinin Kuruluşu ve Işleyisi 1840–1876 (Eskişehir: Anadolu Üniversitesi, 2004); Ekrem Buğra Ekinci, Osmanlı Mahkemeleri (Istanbul: Arı Sanat, 2004); Fatmagül Demirel, Adliye Nezareti: Kuruluşu ve Faaliyetleri, 1876–1914 (Istanbul: Boğaziçi Üniversitesi, 2007). 22. Ruth A. Miller, Legislating Authority: Sin and Crime in the Ottoman Empire and Turkey (New York, London: Routledge, 2005), 1. 23. One rare exception is a register of some sixty cases that were addressed in 1887 at the criminal Nizamiye court of f irst instance in Jaffa. Haim Gerber analyzed this register and reached interesting conclusions regarding the performance of this court, which also serve the pres- ent study (chapter one). Haim Gerber, Ottoman Rule in Jerusalem, 1890–1914 (Berlin: Klaus Schwarz, 1985). 24. This is not to underestimate the distortions resulting from the ten- dency to treat the sicil as a transparent source. In recent years, sicil specialists have emphasized the need to read the sicil as a constructed, rather than a transparent, artifact. See Dror Ze’evi, “The Use of Ottoman Shari’a Court Records as a Source for Middle Eastern Social History: A Reappraisal,” Islamic Law and Society 5 (1998): 35–57; Najwa al- Qattan, “Textual Differentiation in the Damascus Sijil: Religious Discrimination or Politics of Gender?” in Women, the Family, and Divorce Laws in Islamic History, ed.

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