Comparative Criminal Justice in the Era of Modernity: A Template for Inquiry and the Ottoman Empire as Case Study

Abstract

This article lays out the broad transformations within the Ottoman criminal justice system over the course of the nineteenth century in order to demonstrate how the empire transformed its long-standing methods and approaches to criminal justice by adapting “modern” concepts and practices. In the end, it created an integrated system of justice that included new penal codes, police, courts, and corrections, thus demonstrating both its unique characteristics and its comparability with contemporary states. This article first discusses the problematic, but indispensable concept of modernity and how it has hindered comparative empire studies for the long nineteenth century. It then argues for an eclectic approach to comparative empire that adopts the concept of “improvisational blending” to understanding modernity and utilizes intermediate units of analysis in promoting the study of comparative empires. Finally, this article takes the transformation of the Ottoman criminal justice system during the late nineteenth and early twentieth centuries as an intermediate unit of analysis to illustrate a unique Ottoman modernity that is fully comparative on the trans-imperial level.

Acknowledgements

I wish to thank Sinan Ciddi and Paul Levin of the Institute of Turkish Studies for organizing the series of conferences leading to this special journal issue. I would also like to thank the Turkish Studies Journal for its editorial patience and hard work in preparing this article and the special issue as a whole for publication. This article builds directly off and mirrors many of the arguments of my recently published book, Prisons in the Late Ottoman Empire (Edinburgh University Press, 2014). In fact, some parts of the article, especially discussing Ottoman criminal justice transformations of the nineteenth century as case study, come directly from Chapters One and Two. That being said, this article clearly recasts these arguments in order to place them in a comparative imperial context.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Kent F. Schull is an Associate Professor of Ottoman and Modern Middle East history at SUNY Binghamton. He has earned graduate degrees in Jewish Studies (Oxon) and in Ottoman and Modern Middle East history (UCLA) and is a twice Fulbright scholar to Turkey. His publications include Prisons in the Late Ottoman Empire: Microcosms of Modernity (Edinburgh University Press, 2014), several articles, and other scholarly contributions. He also has a forthcoming co-edited volume entitled Living in the Ottoman Realm: Sultans, Subjects, and Elites (Indiana University Press, 2015).

Notes

1. See Schull, Prisons in the Late Ottoman Empire and Paz, “Crime, Criminals, and the Ottoman State.”

2. This article borrows the concept of “blended modernity” from Gluck, “The End of Elsewhere.” Taking Meiji Japan as her case study, Gluck convincingly argues for approaching modernity as a process where a particular society “blends” its current practices and institutions with new ones, thus creating a hybridization that is both modern and unique to that particular society. This undermines claims of Westernization since what was created in Japan was both comparable and unique to its particular context.

3. This article utilizes the phrase “end of empire” to signify the gradual or sudden dismantling of long-lived land-based multi-ethnic empires, such as the Ottoman, Russian, Qing, and Austro-Hungarian over the course of the nineteenth century as they faced internal and external threats to their sovereignty and territorial integrity. Arguably, World War I and the creation of the Mandates System marks the beginning of the end of formal empire when the League of Nations granted the Middle Eastern mandates to Britain and France with the explicit charge that there would be an end date to these imperial holdings. This stipulation, for the first time, made imperial possessions legally temporary in the arena of world opinion.

4. Common consensus stipulates that modern criminal justice systems are made up of three distinct, but interrelated parts: policing, courts, and corrections (Marsh, Criminal Justice, Introduction). Missing from this definition is the codification and development of penal codes that clearly delineate crimes and associated punishments. This key aspect is discussed in detail below, particularly in the Ottoman case.

5. For an excellent discussion about the benefits, limitations, and pitfalls of the theoretical concept of modernity, see “AHR Roundtable: Historians and the Question of ‘Modernity.’” This roundtable includes excellent thought-provoking articles by Zvi Ben-Dor Benite, Dipesh Charabarty, Carol Gluck, Carol Symes, Lynn M. Thomas, and Richard Wolin.

6. For a clear distinction between “categories of practice” and “categories of analysis,” see Brubaker and Cooper, “Beyond ‘Identity’”, 4–6. Similar to how Brubaker and Cooper argue that “identity” is utilized as both a “category of practice” and a “category of analysis,” this article asserts that “modernity” is likewise used.

7. Gluck, “The End of Elsewhere,” 676–7.

8. Rengger, Political Theory, 39–42.

9. Ulrichson's The First World War in the Middle East is a typical example of a study that conflates “modernity” as a category of analysis and a category of practice, relies solely on British source materials to discuss the state of the Middle East during the long nineteenth century through World War I, and readily adopts official British views of the Ottoman Empire as fact, not acknowledging their biases and propagandistic purpose to promote British imperial interests. See Chapter One specifically. This book is not the rare exception, but often the rule when non-Middle East specialists deal with Middle Eastern topics associated with the modern period.

10. The only area of research where comparative empires has fruitful traction for the modern period seems to be those works that utilize diverse multi-ethnic populations within empires as their units of analysis. Examples of such works include Leonhard and Hirschhausen, Comparing Empires, Reynolds, Shattering Empires, and Bartov and Weitz, Shatterzone of Empires. It should be noted that all of these comparisons are between multi-ethnic land-based empires. None of them compare the British or French empires with the likes of the Russian or Ottoman, though. The field of pre- and early modern comparative empire research, however, is much more diverse and flourishing as evidenced by Benton and Ross' Legal Pluralisms and Empires and Barkey's Empire of Difference, among others. In my opinion, this field is more developed mainly because it is not burdened by the overpowering Eurocentric prejudice that “modernity” often brings with it.

11. Gluck, “The End of Elsewhere” and Thomas, “Modernity's Failings.”

12. Gluck, “The End of Elsewhere,” 676–87.

13. Thomas, “Modernity's Failings,” 733–7.

14. Weber, Economy and Society, 976–8.

15. Imber, Ebu's-Su'ud, 75–6.

16. Imber, The Ottoman Empire, 216–51; Peters, Crime and Punishment, 69–102; Inalcik, The Ottoman Empire, 71–5; and Pierce, Morality Tales, 1–125.

17. Ergene, Local Court, Provincial Society, 43–55, 99–124; Gerber, State, Society, and Law, 25–78; Imber, Ebu's-Su'ud, 3–8; Pierce, Morality Tales, 86–125; and Peters, Crime and Punishment, 69–102.

18. Collective responsibility is the principle of holding accountable a community or group for a crime when an investigation produces no guilty party, such as a murder committed in a city quarter or village. It is the community or village that becomes responsible to produce the perpetrator or make restitution for the crime. See Baer, “The Transition from Traditional,” 151; and Zarinebaf, Crime and Punishment in Istanbul, 125–40.

19. Başaran, “Remaking the Gate of Felicity, 120–56; Paz, “Crime, Criminals, and the Ottoman State,” 15–21; Peters, Crime and Punishment, 8–19, 30–8, 75–9, 96–102; and Zarinebaf, Crime and Punishment in Istanbul, 73–80, 128–40, 164–77.

20. Peters, Crime and Punishment, 30–1, 96–102.

21. Başaran, “Remaking the Gate of Felicity, 120–56; Paz, “Crime, Criminals, and the Ottoman State,” 15–21; Peters, Crime and Punishment, 8–19, 30–8, 75–9, 96–102; and Zarinebaf, Crime and Punishment in Istanbul, 73–80, 128–33, 164–77.

22. Imber, Ebu's-Su'ud, 210–13 and Peters, Crime and Punishment, 125–33, 195–6.

23. For Sultan Selim III's reign, see Başaran, “Remaking the Gate of Felicity,” 106–16, 137, 150–6; and Zarinebaff, Crime and Punishment in Istanbul, 74–5, 126–40. For a discussion about the relationship between the guilds and Janissaries, see Quataert, The Ottoman Empire, 134–40. Regarding the Nizam-i Cedid Kanunları see Koç and Yeşil, Nizâm-i Cedîd Kanunları.

24. Ergut, Modern Devlet ve Polis; Özbek, “Policing the Countryside”; Swanson, “The Ottoman Police”; and Fahmy, “The Police and the People.”

25. Özbek, “Policing the Countryside.”

26. Peters, Crime and Punishment, 8–11.

27. Adopted as the empire's official civil code in 1877, the Mecelle represents the first systematic attempt to codify and modernize Islamic civil law (shari'a) according to Hanafi jurisprudence. It was prepared and written from 1869–76 by a commission directed by Ahmet Cevdet Pasha and consists of 16 volumes containing 1851 articles. For a detailed discussion of the creation of the Mecelle and its impact on the practice of Islamic law, see Messick, The Calligraphic State.

28. Peters defines siyaset punishments as “discretionary justice exercised by the head of state and executive officials, not restricted by the rules of the shari'a,” whereas ta'zir are “discretionary punishments” meted out by Islamic court judges and authorized by Islamic law in cases where the accused could not be convicted according to the stipulations of Islamic law, but who were obviously guilty. Ta'zir punishments, therefore, could not exceed shari’ punishments. Both siyaset and ta'zir consisted of corporal punishments, such as flogging or amputation, and could also include fines. See Peters, Crime and Punishment, 196, 127–33 and Baer, “The Transition from Traditional,” 147–8.

29. Bucknill and Utidjian, The Imperial Ottoman Penal Code, xii–xiii and Peters, Crime and Punishment, 127–33.

30. Miller, Legislating Authority, 25–40 and Darling, A History of Social Justice, 157–67.

31. Baer, “The Transition from Traditional,” 139–58.

32. Peters, Crime and Punishment, 127–33 and Baer, “The Transition from Traditional,” 143–4.

33. Peters, Crime and Punishment, 127–33 and Bucknill and Utidjian, The Imperial Ottoman Penal Code, xiii–xvi.

34. For a brief, but useful discussion of the source and significance of the initial 1858 IOPC, see Baer, “The Transition from Traditional,” 139–58 and Bucknill and Utidjian, The Imperial Ottoman Penal Code, ix–xvi.

35. Bozkurt, “The Reception of Western.”

36. Bucknill and Utidjian, The Imperial Ottoman Penal Code, 1.

37. Baer, “The Transition from Traditional,” 144–5.

38. Rubin, Ottoman Nizamiye Courts, 1–54 and Peters, Crime and Punishment, 131.

39. Rubin, Ottoman Nizamiye Courts, 1–54.

40. Bucknill and Utidjian's The Imperial Ottoman Penal Code reproduce the original 1858 IOPC and its subsequent changes in chronological order, thus enabling side-by-side comparison of all the code's articles.

41. Paz, “Crime, Criminals, and the Ottoman State,” 18.

42. Rubin, Ottoman Nizamiye Courts, 1–54.

43. Rubin, “Ottoman Judicial Change”; Peters, Crime and Punishment, 80, 90, 129; and Young, Corps de Droit Ottoman.

44. See Yıldız, Mapusane, 225–61, for a thorough discussion of the transformation of kürek punishment during the nineteenth century. Also see Zarinebaf, Crime and Punishment in Istanbul, Chapter Nine, for a discussion of the transformation of punishment in Istanbul during the eighteenth century.

45. See Schull, Prisons in the Late Ottoman Empire, Chapter 4.

46. For a thorough discussion of Ottoman prison reform, see Schull, Prisons in the Late Ottoman Empire, Chapters 1–6.

47. Paz, “Crime, Criminals, and the Ottoman State,” 20–1.

48. See Schull, Prisons in the Late Ottoman Empire, Chapter 5, for a comprehensive discussion of Ottoman state attempts to professionalize the prison cadre and investigate and punish prisoner abuse and corruption.

49. The edited volumes of Dikötter and Brown, Cultures of Confinement, Bernault, A History of Prisons and Confinement, and Salvatore and Aguirre, The Birth of the Penitentiary in Latin America are notable examples of comparative punishment and incarceration, but all of these works only focus on the prison in Africa, Asia, and Latin America. There are still no works as yet that compare prisons or criminal justice between Western and non-European states.