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Modernization in the Legal Field During the Late Ottoman Era and Its Impact on the State Perception of Women on the Margins

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Modernization in the Legal Field During the Late Ottoman Era and Its Impact on the State Perception of Women on the Margins MODERNIZATION IN THE LEGAL FIELD DURING THE LATE OTTOMAN ERA AND ITS IMPACT ON THE STATE PERCEPTION OF WOMEN ON THE MARGINS By BÜŞRA DEMİRKOL Submitted to the Institute of Social Sciences in partial fulfilment of the requirements for the degree of Master of Arts Sabancı University October 2017 © Büşra Demirkol 2017 All rights reserved ABSTRACT MODERNIZATION IN THE LEGAL FIELD DURING THE LATE OTTOMAN ERA AND ITS IMPACT ON THE STATE PERCEPTION OF WOMEN ON THE MARGINS Büşra Demirkol Turkish Studies, M.A. Thesis, October 2017 Thesis Supervisor: Assoc. Prof. Selçuk Akşin Somel The main aim of this study is to try to understand modernization attempts of the Ottoman Empire during the nineteenth and twentieth centuries through reforms in the legal field and to reveal reforms’ effects on the state-society relationship through state perception of the women marginality. Although questioned reforms in the legal field was covering a range of changes from new courts to the constitution of police service, limited scope of the study is restricted to focus on reforms in the penal law. By examining 1840, 1851 and 1858 penal codes, the study aimed to focus on changing state mindset which lies behind the codification activities during the questioned terms. In order to understand how reforms in the legal structure and formal law change the relationship between the state and society, state perception of the women marginality is taken as an epitomic case. In a more detailed way, the questions of abortion, prostitution and incarceration practices of women inmates are taken as specific case studies. At this point this study mainly argues that, while until the nineteenth century the Ottoman sui generis legal structure and culture was recognizing a legal freedom to women marginality in a quite extensive private manner, during the modernization attempts of the empire, legitimately private women marginality was redefined and repositioning within the boundaries of public and subjected to state intervention through reforms in the penal field. In other words, the women marginality and criminality was redefined and constructed through reforms in the legal and especially penal field during the late Ottoman era. Keywords: Modernization, Tanzimat Era, legal system, the Islamic law, women, criminality. IV ÖZET GEÇ OSMANLI DÖNEMİ BOYUNCA HUKUKİ ALANDA MODERNLEŞME VE BUNUN KADIN MARJİNALLERE DAİR DEVLET ALGISINA ETKİSİ Büşra Demirkol Türkiye Çalışmaları Yüksek Lisans Programı, Yüksek Lisans Tezi, Ekim 2017 Tez Danışmanı: Doç. Dr. Selçuk Akşin Somel Bu çalışmanın temel amacı, Osmanlı Devleti’nin 19 ve 20. yüzyıldaki modernleşme çabasını hukuki reformlar üzerinden ele almak ve bu dönüşümün devlet-toplum ilişkisindeki yansımalarını devletin kadın suçlulara yaklaşımı üzerinden incelemektir. Her ne kadar bahsedilen hukuki reformlar, yeni mahkemelerden polis teşkilatının yapılandırılmasına kadar çok çeşitli alanlarda gerçekleşen şumüllü bir dönüşümü kapsıyor olsa da, bu çalışmanın sınırlı kapasitesi ceza hukuku alanındaki reformlara yoğunlaşmıştır. Özellikle 1840, 1851 ve 1858 kanunları incelenerek dönemin kodifikasyon çalışmalarının ardındaki devletin değişen zihniyetine yoğunlaşılmıştır. Yapısal anlamdaki ve formal hukuktaki bu değişikliklerin pratik alanda devlet ve toplum arasındaki ilişkiyi nasıl dönüştürdüğünü incelemek amacıyla dönemin ceza hukukunun kadınların failleştiği suçlara dair tutumu ele alınmıştır. Vaka çalışmalarının alanları kürtaj, fuhuş ve kadın mahkumların hapsedilme pratikleri olarak sınırlandırılmıştır. Zira kadın marjinalitesi, kadının doğurgan kapasitesi nedeniyle nüfus ve cinsellik tartışmalarının odağında olmuştur. Bu noktada bu çalışmanın temel iddiası, 19. yüzyıla gelene kadar Osmanlı’nın kendine özgü hukuki yapı ve kültüründe oldukça geniş bir mahrem alanda kendisine meşru bir özgürlük tanınmış olan kadın marjinalitesinin, modernleşen devlet zihniyeti tarafından müdahaleci bir biçimde hukuk yoluyla mahremden kamusala geçirilmiş olduğudur. Bir diğer deyişle, ceza hukuku alanındaki reformlar, çeşitli düzenlemeler ve kodifikasyon çalışmaları yoluyla kadın cinselliği, marjinalliği ve suçluluğu yeniden biçimlendirilip kurgulanmıştır. Anahtar Kelimeler: Modernleşme, Tanzimat Dönemi, hukuk sistemi, İslam hukuku, kadın, suç. V ACKNOWLEDGEMENTS “Shadowfax. He is the lord of all horses and has been my friend through many dangers.” -Gandalf First of all, I am grateful to all shadowfaxes in my life. Secondly, I would like to express my gratitude to my thesis advisor Professor Akşin Somel for his conscientious helps and his stimulating studies which clarify so many points in my mind about Ottoman women history, and I am grateful to Professor Hakan Erdem for his perceptive criticism which pushes a fledgling student to go beyond the call of duty and ultimately causes to feel satisfied. I am also indebted to Murat Can from Boğaziçi University for his meticulous translation of all used Ottoman quotations in this study. All these people contributed much to my study for its betterment, but I am wholly responsible for all errors and omissions in this thesis. VI TABLE OF CONTENTS ABSTRACT…………………………………………………………………………….IV ÖZET…………………………………………………………………………………….V ACKNOWLEDGEMENTS…………………………………………………………….VI 1. Introduction……………………………………………………………………………1 2. Theoretical Approach to the Relationship Between Law, Policy and Modernization…7 2.1. Law as Constitutive Force in a State on the Verge of Modernity…………………7 3. Components of Ottoman Law and Legal Thought ...................................................... 14 3.1. General Approach to the Islamic Law Through A Historical Sketch…………...14 3.2. Modern Approaches to the Shari’a ....................................................................... 18 3.3. The Relationship Between the Statute Law and the Shari’a................................. 23 3.4. From Statute Law to Codification. ....................................................................... 34 4. The Transformation of the Law During The Tanzimat Era ......................................... 41 4.1. General Approach to the Tanzimat Era .................................................................. 41 4.2. Modernization In Legal Field ............................................................................... 44 4.3. Codification Activities in the Penal Field .............................................................. 47 4.3.1. The 1840 Penal Code ................................................................................. 48 4.3.2. The 1851 Penal Code ................................................................................. 50 4.3.3. The 1858 Penal Code ................................................................................. 54 5. Case Studies: Reshaping Women on the Margins ....................................................... 60 5.1. Criminalization of Abortion .................................................................................. 60 5.2. Relimitation of the Question of Prostitution ......................................................... 75 5.3. Incarceration of Criminal Women, A Simple Ignorance or Governance Through Precarity? ............................................................................................................... 91 6. Conclusion ............................................................................................................... 103 VII CHAPTER I Introduction This thesis aims to examine reforms and transformations in the legal field during the late 19th and early 20th centuries in the Ottoman Empire through case studies of criminalization of certain acts in which women become agents and their penal execution. Although, the change in the legal field was a comprehensive transformation which covered from the creation of a new court system (nizâmiye) to a fundamentally new prison system, restricted scope of this study is the legal transformation in the criminal field which consists of various legislation activities, codifications, measurements and regulations. The transformation in the Ottoman state mind itself brought along a different state-society relationship. But how can we understand such an abstract concept of relationship between two huge and intangible notions? I think that is possible to overcome this problem through an examination of changing in criminal law. Since, in the scope of criminal law, one can find both the state’s self-positioning and perception and its approach to society. Consequently, reforms in the legal field became a fertile zone in which it can be scrutinized indicators of the changing in the relationship between state and society. As Avi Rubin states, until recent years, predominant approach to change in the legal field in the Ottoman Empire was based on a limited prescription of Westernization and imitation.1 However the process of legal change was not as superficial as suggested. By originating an amalgamation of the shar’ia and ‘urf, the Ottoman legal culture transformed and embraced modern legal structure in an idiosynratic way. In order to have an appropriate understanding on the nature of this change, it must be understood firstly legal sources of the Ottoman legal thought, their historical development and the inner relationship between their coexistence. In this study, it is argued that one of the main sources of Ottoman law, the shari’a was developed based on a flexible legal culture with independent and autonomous scholars. For this reason, contrarily to the modern state’s interventionist legislation role which reshapes the
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