Academic literature on the topic 'Ottoman Penal Code'

In the XIX. century, Ottoman State has witnessed changes in many areas. Looking at the content of both the dated 1840 and the dated 1851 Penal Codes legislated in Tanzimat Era, it has seen that the transformation in criminal procedure, judicial system, administrative fields was attempted to be accommodated with penal codes.&nbsp;&nbsp;The aim of this study is to seek answers to the question of how the criminal law of the Ottoman State changed in the period starting with the 1858 Penal Code in the nineteenth century within scope of&nbsp;<em>ta&lsquo;zir</em>(discretionary punishment) and more particularly, crime of murder and complicity as one of special forms of crime. The discussions of the criminal law scholars of the period about the nature of Article 45 regarding complicity in the 1858 Penal Code and their seeking solutions and how they developed new rules due to need in the process and at this point how they benefited from European penal codes, commentaries and their scholars will be attempted to demonstrate. More importantly, it will be witnessed how Ottoman judges used the classical principles in their minds when implementing the article of code. However, when looking from a broad perspective, we will see how the Classical Law School, in which Ottoman State was included through it&rsquo;s 1858 Penal Code, and the crime policy of France and the French Penal Code have influenced Ottoman Criminal Law.

The penal code of 1858 was an important step in Ottoman legislation during the reform period (tanẓīmāt) and had a considerable impact on the concept of the state as the guardian of public order. Through the 20th century the penal code of 1858 was generally interpreted as a “(literal) translation” of the French Code Pénal of 1810 and as evidence for the “western influence” on Ottoman legislation. Recent research has started to question this interpretation, focussed more closely on the normative aspects of the Ottoman penal code and analysed the penal code of 1858 as an adaptation of French law within the context of the Ottoman legal concepts during the tanẓīmāt. In my article I analyse the text as a part of political communication, as a monologue by which the state adresses its subjects. Even if large parts of the Ottoman penal code are translations from the French, the rhetoric patterns and terminology have to be taken seriously. The amalgamation of traditional rhetorics and a new terminology turns out to be a successful strategy to legitimise new legal concepts, which include a new relation between ḳānūn and şerīʿat. In my article I will argue that the state’s traditional role as the guardian of public order is the starting point for the introduction of these new legal concepts.

While the Prophet was alive, the companions had consulted to him personally for the solution of every religious matter and to the Qur&#39;an and Sunnah after his death. On the issues that they could not find information in the two sources mentioned, they have made judgments by making ijtihad. Those who were not at the level to make ijtihad obtained information by consulting people who were experts in religious matters. The Muslims who came after them continued to follow the same path. Later, fatwa books were prepared, and these works began to be used in the field of qada as well as fatwa. Although the proposal for the codification of Islamic law was made by Ibn al-Muqaffaʿ (d. 142/759) at a very early period, the act of codification started too late. The legalization activity in the modern western world started at the end of the 18th century and spread to the whole European continent in the 19th century. The Ottoman Empire, influenced by the West, started the act of codification in the modern sense with the Penal Code of 1840. The codification of civil law in the Islamic world started with al-Majalla al Ahkam al Adliyyah (The Ottoman Courts Manual). Hukūk-i Aile Kararnamesi (the Family Law Decree) which was issued in 1917, followed al-Majalla in the field of codification. These two laws, which were prepared based on Islamic law, were applied in many countries under the rule of the Ottoman Empire. Even these two laws continued to be in force in some other Islamic countries a long time after they were declared abolished in the Republic of Turkey. With these works, the Ottoman Empire became a pioneer for other Islamic countries, and later, other Islamic countries took these as an example and prepared and put into effect their civil laws. One of these countries is Afghanistan. Although Afghanistan was not under Ottoman rule, it was directly or indirectly influenced by Ottoman law in enacting and took Ottoman law as an example. While the first penal code was being prepared in Afghanistan, the penal code (Ceza Kanunnāme-i H&uuml;māyunu), which was enacted by the Ottoman Empire in 1858, was taken as a basis. Some articles of the aforementioned Ottoman Penal Code of 1958 were incorporated into the Afghan penal code of 1921 (Nizamnāme-i Cezā-yı Umūmī), either as they are, with little or no change. It is stated that judges should be made according to al-Majalla and that the qadis should fill the gaps in the law with al-Majallaon some issues in the laws named &ldquo;Usūlnāme-i İdāri-yi Mahākim-i Adliye&rdquo; (Administration of Judicial Courts Law) of 1957 and &ldquo;Usūl-i İjraati Muhākimāt-ı Huqūqī-yi Adlī&rdquo; (the Practice of Judicial Jurisdiction) of 1958.When we look at the Afghan Civil Code, which came into force in 1977, we see that it was influenced by the Majalla and the Ottoman Hukūk-ı Āile Kararnamesi (Ottoman Law of the Family Decree). In the same way, Majalla and its annotations have been used in Afghan courts in addition to the Afghan Civil Code until today. It is seen that in the Afghan Civil Code, which was prepared based on Hanafī fiqh, some issues were out of Hanafī fiqh, and in this respect, the Ottoman Law of Family Decree was followed. In this article, the effects of Ottoman law on Afghan law will be discussed in the context of criminal law, family law, and law of obligations.

The defenses of Duress, Self-Defense (or private defense) and Necessity are today set forth in sections 21, 22 and 22A, respectively, of the Israel Penal Law, 1977. However, in order to understand these defenses fully, it is necessary to go back to the provisions of the Criminal Code Ordinance, 1936, wherein the ruling British Mandatory authorities replaced the Ottoman Penal Law which had prevailed in Palestine before the Mandate. For, its name to the contrary notwithstanding, the 1977 Penal Law was not primarily an original Israeli enactment. Rather, it was in considerable measure merely a Hebrew translation of the original Criminal Code Ordinance. This is especially the case in connection with the Ordinance's General Part, which includes the defenses that concern us here. It was only in 1992 that the Knesset enacted original Israeli legislation concerning these defenses.

AbstractIn 1349 Stefan Dušan enacted a code that was part of a tripartite codification with the Abridged syntagma and the so-called Law of Justinian. The Serbian emperor introduced in his empire a Byzantine legal system, even if elements of Slavic customary law were preserved. Physical mutilations and punishments, death penalty, public penal system, personal liability were unknown to the Slav populations and have to be connected to the Greek-Roman law influence. This influence is evident both in civil and criminal law and in this sense the dispositions of the Code of Dušan must be connected to the two other Byzantine compilations. Dušan's attempt failed just a few years after his death because of the fall of the Serbian empire due to the Ottoman advance.

The aim of this study is to challenge the stereotypes that non-heterosexual orientation and various gender identities are not manifestations of either a “decadent West” or a passing trend. On the contrary, heterosexism and homophobia intensified and became dominant doctrines during the 19th and 20th centuries, even in societies where same-sex relationships were not initially criminally persecuted. In my legal-historical analysis, I focus not only on the period after the restoration of Bulgarian statehood following the adoption of the First Constitution in 1879 but also on the time before that, when Bulgarian society existed within the boundaries of the Ottoman Empire during the Tanzimat era. An important moment for the analysis is the decriminalisation of same-sex relationships in 1858 in the Ottoman Penal Code. I will also provide examples from the development of Bulgarian criminal law, which often included provisions criminalising sexual contacts between individuals of the same sex.

Abstract This case study explores the experimentation phase of the Ottoman Tanzimat reforms on the criminal justice system in the city of Rusçuk from 1839-64. In particular, it investigates crime and punishment by focusing on police, courts, and prisons and how these institutions responded to reform efforts in Rusçuk, which became the capital of the Danube Province in 1864. It shows that the Ottoman government established new police forces (zaptiye) and modernised prisons in the city in 1846 immediately after their introduction in the imperial capital of Istanbul. At the same time, the government bestowed extensive judicial authority on the meclis-i kebir (a secular administrative council in the provinces), and to a lesser extent on the meclis-i muvakkat (temporary council), over criminal cases. While the Sharia courts continued to enforce Islamic criminal law, the meclis-i kebir took charge of enforcing the new penal codes of 1840, 1851, and 1858, and served as a precursor first to the secular courts of the 1864 Provincial Reform and then to the more centralised and standardised nizamiye courts of the 1870s. This study also analyses the types and frequency of crimes and the penalties they received. Based on Rusçuk’s prison registers, which contain the cases tried by the meclis-i kebir and meclis-i muvakkat, and the records of the meclis-i vala (Supreme Court) in Istanbul, it argues that the crime rate in Rusçuk was much higher than the one represented in the Sharia court’s records.

During the 19th century, Ottoman law was influenced by the West. The Tanzimat reforms marked the beginning of criminal codification in the Ottoman Empire, whose Penal Code was adopted in 1858. It was modern in terms of format and content, and it differed from the penal laws of 1840 and 1851. Its first article stated that it shall not repeal the provisions of Sharia law. This dual nature of the code caused a lot of confusion. The complete replacement of Sharia law with modern European law did not happen suddenly, but gradually. This was necessary for the government to embrace the new ideas and understandings of the modern societies at that time. Therefore, the attempts of the Ottoman authorities to modernize the Empire’s laws, particularly the ONK, cannot be denied.

İslam’ın önem atfederek korunmasını istediği birtakım değerler vardır. Bu koruma şahsi bir görevden çok kamu otoritesine ait bir ödevdir. Zira bu değerleri hedef alan suçlara yönelik yaptırımları uygulama, bazı durumlarda yeni yaptırımlar vazetme yetkisi kamu otoritesine aittir. Dolayısıyla kamu otoritesinin adil ve güvenilir bir şekilde işlemesi gerekmektedir. Otoriteye karşı güveni ve adalet hissini zedeleyen en büyük suçlardan biri rüşvettir. Tanzimat Dönemi’nde rüşvetle mücadelede kanunlaştırılmaya gidilmiş, rüşvet suçuyla ilgili çeşitli düzenlemeler yapılmıştır. Çalışmada Tanzimat Dönemi kanunlarında rüşvet suçuyla ilgili düzenlemeler kronolojik ve mukayeseli şekilde incelenmiştir. Öncesinde ise Osmanlı’da resmî mezhep hüviyetindeki Hanefîlik açısından rüşvet suçu ele alınmıştır. Böylelikle Hanefî fıkhından son Osmanlı ceza kanununa kadar geçen süreçte rüşvet suçuna dair düzenlemelerde meydana gelen değişiklikler izlenmiştir. Sonuç itibarıyla zamanla kanun metinlerindeki fıkhî terimlerin ortadan kalktığı, Batı kanun sistematiğine uygun daha teknik, kısa ve açık ifadelere yer verildiği görülmüştür. Ayrıca rüşvet suçuyla alakalı kısa sürede birden çok ve sık aralıklarla düzenlemeler yapılması rüşvetin ne denli yaygınlaştığını ve bu suçla mücadelenin ne denli zor olduğunu göstermiştir.

Abstract This chapter studies honor in the Ottoman legal praxis, particularly concerning the new Tanzimat penal codes of the nineteenth century. It mainly focuses on the 1858 Penal Code as the first criminal code that codified honor extensively in a comprehensive section devoted to various sexual offenses. It argues that the centralizing state of the Tanzimat expanded its control over the private sphere of its subjects. The state claimed to assert itself as the supreme arbiter of morality by entrusting women’s sexuality to its male subjects to control. Nevertheless, this gendered construction of morality based on honor has undermined its claims of creating a novel universal citizenship/subjecthood. This study also argues that the 1858 Penal Code was part of global codification movements in which the Napoleonic Code Pénal has been adapted according to local needs. Thus, it reveals how the section on sexual offenses and public outrage in the Code Pénal and the French gendered norms have been translated and adapted to the Ottoman moral codes of family and patriarchal honor with the introduction of ırz.