4. The Ottoman State May Guide to the Solution for the Problem of Modernity
The problem with the issue of Islam and time exigencies is the problem of co-existence and coordination between two objects that are against each other in their natures. One is fixed and irrevocable in nature, while the other is revocable, not fixed and fluid. Since Islamic rules could not be abrogated, they are unchangeable and permanent, and since time exigencies or any other issue related to time, including human necessities and living conditions, are not fixed, it is but natural for them to undergo changes. Some Western scholars and politicians are accusing Islam with this reason.
An eminent Ottoman Scholar had drawn our attention to this point:
”Sacred laws change according to the ages. Indeed, in one age different prophets may come, and they have come. Since subsequent to Islamic Law is sufficient for all peoples in every age, no need has remained for different laws. However, in secondary matters, the need for different schools of law has persisted to a degree. Just as clothes change with the change of the seasons and medicines change according to dispositions, so sacred laws change according to the ages, and their ordinances change according to the capacities of peoples. Because the secondary matters of the ordinances of the Islamic Law look to human circumstances; they come according to them, and are like medicine.
At the early times, since social classes were far apart and men”s characters were both somewhat coarse and violent, and their minds, primitive and close to nomadism, the laws at that time came all in different forms, appropriate to their conditions. There were even different prophets and laws in the same continent in the same century. If, like students of a school of higher education, the vast majority of mankind were clothed in the same sort of social life and attained the same level, then all the schools could be united.” (Bediuzzzaman, Said Nursi, The Words, 27th Word)
The Ottoman State has solved this problem and used restricted power of legislation during the period. The provisions of regulations in the Ottoman Legislation are divided into two groups:
A) Such decrees as were directly based upon the Holy Qur’an and Sunnah and codified in books of Fiqh (Islamic Jurisprudence) were called Shariah decrees, Shar al-Sharif or Shariah Legislation, which decrees formed most of the Ottoman Legislation. Accordingly, ‘Duerar wa Gurar’ by Molla Husraw and ‘Multaqah’ by Ibrahim of Aleppo were regarded as the Civil Code of the Ottoman State. The sources of Shariah Law were classified into two groups: a) primary sources, also called Adillah al-Shar’iyyah, which are four: the Noble Qur’an, Sunnah, Ijmah (the general concurrence and agreement in opinion and decision of the legalists) and Qiyas (analogy); b) Secondary sources, which are the rules of traditions and customs, istislah (rendering easy), istihsan (commendation), ancient regulations of law, narrations of Ashab al-Qiram (the Exalted Prophet’s Companions) and the like sources.
These decrees bind all the Muslims without requirement for the approval of any person or institution. In other words, all the Muslims, also including Sultan and Caliph, are liable to observe the said decrees. The principles of Shariah Legislation have been codified with books of Islamic Jurisprudence.
B) Particularly financial law, territorial law, penalties of ta’dhir, arrangements on military law and administrative law based upon the restricted legislative authority vested by Shariah decrees and those jurisprudential decrees the foundation whereof were such secondary sources as customs and traditions and public good, which were such titles as public law, Siyasah al-Shar’iyyah (Shariah Politics), Qanun (Code), Qanunnamah (Legislation) and the like. As the said could not exceed the limits of Shariah principles either, they may not be regarded as a legal order outside the Islamic Legislation.
Decrees of Ijtihad (Jurisprudence) wherefore there exists no obvious mention in the Holy Qur’an or Sunnah, the sources whereof are istihsan (commendation), public good or the like secondary sources, the most noteworthy characteristics whereof is that they are not binding unlike the former. This being the case, those who reveal or determine by Shariah evidences such decrees are legists of ijtihad, Sultans, Caliphs or Legislative Councils[4].
In Ottoman State before Tanzimah (Reforms) that legislative power of Ulu al-Amr, the limits whereof have been defined in law books, was generally used by Sultans and Padishahs. As and when it was so required for public good, some ijtihads (jurisprudences) were preferred; decrees were issued upon the fatwahs received from the Shaikhulislam in face of newly emerging legal matters; particularly the regime of the conquered lands was arranged in conformity to public interest; and ta’dhir penalties were arranged in divers fashions according to the changing time. Thus such legal arrangements as were issued in administrative, financial, penal and different legal fields, at various intervals and on several occasions, with the Sultan’s orders and edicts based upon the fatwahs of the theme’s Shaikhulislam were compiled either exactly or in summary or were collected upon Sultan’s demand under the title of ‘Qanunname’ (Legal Code). Though we have in hand legal codes transmitted from earlier times pertaining to the Dulqadirids and Aqqoyunids, the majority of those codes numbering 700 belonged to the Ottoman Sultans and especially Sultan Sulaiman the Lawmaker. Again do we witness that legal codes were divided into two parts among themselves:
A) General Codes: They contained sovereign legal rules valid for the whole Ottoman land, as instances whereof were two legal codes pertaining to the Conqueror – one concerning State organization and the other penal legislation; general legislation belonging to Sultan Selim the Excellent; general legislation pertaining to the Lawmaker; Legislation of Tawqii Abdurrahman Pasha (Ottoman State Organization); Legislation of Ahmed III; and two legal codes belonging to the Dulqadirids.
B) Private and local legal codes: Ottoman administrators did the survey and registry of every land they annexed to the country through conquest and entered special codes at the beginning of the written survey of the concerned province in consideration of the legal status of the land, the ancient customs and traditions prevalent in that region, ancient orders, the fertility of the land and the population. The majority of those legal codes were such whose decrees had been adapted forms of those decrees in the general codes to the concerned regions. In the legal codes were found some special provisions that concerned those regions whereto they pertained. For instance, while the Cretan Legal Codes included such decrees as were related to private land and kharaj, the Budin Legal Codes was composed of decrees that were related to miri land. We shall have published 760-odd Legal Codes, both general and private, in our work called the Ottoman Legal Codes.
The Ottoman Legal Codes bear such importance that they would require re-writing of the 6-century-long history of the Ottoman State, which form the longest period of the Turkish – Islamic History, for law is such a real mirror that it reflects all the aspects of human life. In fact, it cannot be gainsaid that law forms an indispensable element of human societies and even – with the expressions of a legist – “it is the very self of human life”. The Ottoman Legal Codes were sources of first instance not only for the Ottoman Law, but also for the Ottoman history, the Ottoman civilization as well as the military, economic, religious and social history thereof.
Another thorny issue is the problem of constitution. Abdulhamid II, who took the issues of the constitutional regime and Qanun al-Asasi on his agenda with the vehement wishes of the Grand Vizier of the time, Ahmed Midhat Pasha, ordered the authorized Islamic jurists of the time to prepare their explanatory reports on whether in the first place the preparation of such a constitution and the formation of a Parliament to be vested with legislative authority in certain matters would be in discordance to ‘Shar al-Sharif’, which was the basis of the Ottoman legislation. The views on that issue could be summarized in two points:
Firstly: It is contrary to the Islamic Legislation to prepare such a constitution called ‘Qawanin al-Siyasah’ (Political Codes) or ‘usul’ (manner) and to abide by the laws to be introduced by a Parliament to be formed by such a constitution. The holders of that view had thought that the constitution to be prepared was going to lead to the introduction of such laws as would be overtly in discord with Shariah decrees and they were disagreed with by the majority. The most significant point whereon they were based was the issue that Majlis al-Shurah (Advisory Council) was to be composed of solely Muslims, not non-Muslims. Fatwah Emini Kara Khalil Effendi ranked first among the holders of that view.
Secondly: It is permissible to establish a legislative body in nature of a ‘Shurah Council’ (Advisory Council) on condition that it should remain within the frame of restricted legislative power granted to Ulu al-Amr (senior administration staff) the limits whereof have been determined in Islamic Legislation and that it should not contradict the existing Shariah decrees; and yet it is legal to prepare a Qanun al-Asasi (Constitution), called Usul, to arrange the principles thereof. As a matter of fact, it is necessary. The leader of those who defended this view was Saifuddin Effendi, of the members of the State Council, who had convinced the senior officers of the State through his speech.
There have been eminent scholars of Islam who have stated that it is permissible by Islamic Legislation to prepare a fundamental law, i.e. Constitution, also called ‘Dustur or Usul’. We can mention an explanation about this issue for a big Ottoman Scholar
“Mashrutiyyah (Constitutional regime) comes to mean the accumulation of consultation, justice and power in legislation. Constitutional regime and Constitution are made up of real justice and Shariah consultation. Our worldly felicity is based on the Constitutional regime. The enemies of the Constitutional regime increase the enemies of consultation by showing the Constitutional regime as cruel, ugly, and contrary to Islamic Legislation. Truths do not change by changing their names. As social ties, means of earning the living, and favors of civilization were not so profuse in the past, the views of few people sufficed for the administration of the State. Nevertheless, social relationships have increased and necessaries have diversified so greatly that only a Parliament, the heart of the nation, can administer the State with Shariah consultation, which means the opinion of the Islamic nation, and intellectual freedom, which means the sword of civilization”.
Though the precise date thereof is unknown, the eminent jurists of the four mazhabs (schools) in Cairo sent an explicatory report to Abdulhamid II in support of the Parliament, which is the heart of the Islamic nation. This document is also found in the Ottoman Archives. Yet some other explanatory reports are available in the Ottoman Archives on behalf of the Constitution (Kanun al-Asasi) and the Parliament that had been conveyed to Abdulhamid II. We would not like to go into further details here.
Abdulhamid II, who regarded those opinions on behalf of the Constitution as basis, took the Advisory Council (Majlis al-Shura) in the Islamic Legislation as fundamental and made some modifications in the explicatory report prepared by the State Council (Shura al-Dawlah) chaired by Ahmed Midhat Pasha, and then on 23 December, 1876/ 7 Dhilhajjah 1293 issued permission for the promulgation of Qanun al-Asasi (the Constitution). Thus the Ottoman State became a Constitutional regime and a Legislative Council was first accepted so that it should carry out its legislative task within the limits of sovereign legislation.[5].
5. Conclusion
As long as the West looks upon its culture as the superior culture in all aspects –endeavoring to humiliate other cultures without making efforts to understand them, and tries to globalize one, and only one, culture- the world will not come out of its present difficulties. Muslims and amid them Ottoman State have tried their best to adopt new scientific, social and philosophical ideas from other cultures, especially from the West, and adapt it to their own value system. They have not, generally, treated their shari’a as an invariable, rigid command, but as a guide to walk towards God, with the adaptations required by each historical and social content. It is now West which should participate in this mutual effort of understanding and cultural interchange.
Is it possible to consider 1915 Armenian Deportation as an Armenian genocide? How can we reply the allegations of Armenians and Western authors on this subject?
The matter is to be explicated from various perspectives:
Firstly; throughout the history Armenians lived in the Ottoman land as a Millah al-Sadiqah (Loyal Nation) in the status called dhimmi, viz. non-Muslim citizens of a Muslim country, and the Ottoman State granted them all the rights and freedoms it did to its Muslim citizens. I ought here to mention that if we the Muslim Turks had not respected the rights and freedoms of the minorities ever since 1071, that is for 909 years, a long period in history, would it be possible to mention today of the existence of minorities in Turkey, even in a small quantity? The fact that no trace of Muslim minorities survived in Spain in the simultaneous period of time clearly evidence the real attitudes of Europeans, rather the Christian nations, and us the Muslims on this subject. The Armenians were granted not only basic rights and freedoms but also the religious freedoms in light of the principles introduced by the Religion of Islam. After Tanzimah (Reforms), particularly during the time of the Unionists, political rights were accepted for Armenians as well as for the Muslims, to such an extent that Abdulhamid II was even accused of being a killer of Armenians. During the reign of Abdulhamid II, Agop Pasha was Chancellor of Exchequer. Yet the Unionists got so imprudent that they appointed Gabriel Noradungiyan, who had betrayed the Ottoman State, as Foreign Minister.
In return for the Ottoman State’s mentioned acts, the Armenians, having been provoked by Russia and based on Provision 61 of the Treaty of Berlin, began to rebel against the State and massacre the Muslim people and especially the Muslim Turks in the Eastern and South Eastern cities, where they never managed to form the majority. The members of Hınchaq Association, which was formed in 1886, and the members of Tashnaq Association, which was an Armenian committee likewise, started terrorizing the Ottoman land. Abdulhamid II, who stopped that terror with the help of the Hamidiyyah Regiments, was accused as Kızıl Sultan (Sultan the Crimson). On the other hand, Hamparsum Boyajiyan, who had rebelled in 1894, was elected by the Unionists into the Parliament as Minister of Harput. The conspiracy wherein they attempted to murder Abdulhamid with a bomb, the consecutive Armenian riots in Istanbul, etc. clearly evidence that they followed the orders of foreign powers.
Ad extremism, the Armenians in the East began to hit the Ottoman State from behind, which entered the First World War on 29 October, 1914, together with Russians. As a matter of fact, when the Russians who evacuated Van delivered the city to Armenians, the Armenians started massacring Muslims in the East (3.8.1915). 1.300.000 Armenians were living in Eastern and South-Eastern Anatolia at the time, which constituted only 5 % of the population. When the massacres by the Armenians of Muslims could not be prevented despite of all the measures, in April 1915 Minister of Interuor, Tal’at Bey, issued a decree that 500.000 Armenians in the Eastern and South Eastern Anatolia should be deported (tahjir), with an objective to driving Armenians away from the ways of Russian troops. While some of the Armanians, who were deported to Iraq, Syria and Lebanon under the protection of soldiers, died on their way owing to heavy traveling conditions and starvation, some others were killed by some civilian dwellers of the region whose relatives had been earlier massacred by Armenians. Yet the number of Muslims that had been massacred by Armanians total around 1.000.000. Yet on the other hand, American authorities and army officers who had lived amidst the events refused the allegations of Armenian Genocide in spite of all the clamours of the European countries; au contraire, they authenticated the verity of the massacring of Muslims. These reports are found in the American archives.
Secondly; all the Muslim Turkish States, especially the Ottoman State, materialized all their military operations completely within the limits of Islamic Legislation. According to Islamic Legislation, even in a situation of actual war Islamic armies are banned from committing certain acts against the people and goods of the enemy and particularly massacres. One of the most significant reasons that enabled our ancestors to run from a victory to another was their verbatim ac litteratim observance to those principles. In fact, their victories were proportionate to their obedience to those essentials. Let us summarize the banned acts and explain why the alleged massacre was impossible: killing enemy soldiers through tortures and tyranny and murdering such unwarring people as women, children, slaves who had come to serve their masters, the disabled and the chronic, the old, the sick, the mad, and the ecclesiastic who gave up mundane life were forbidden. Nevertheless, if any one of the heretofore listed people participated in a battle with his/her body, intellect or goods, it would be permissible that they be killed. Again, it was illegal that any parts of the body of either human beings or animals be mutilated (muslah). It was unlawful to act against a given promise or a signed treaty. Agricultural produces, forests or trees could not be cut down without any belligerent necessity. Adultery or illegitimate relations were prohibited. Hostages could not be killed. The head or body organs of the dead could not be mutilated; and no massacre could be committed. Close relatives – and particularly the father, tradesmen and merchants, who had nothing to do with war, could not be murdered. Whereas there happened to be further inhibitions, we here suffice with the ones mentioned heretofore.
The above-said provisions were also known by Tal’at Pasha, who issued the decree of deportation. In fact, although the documents in the Ottoman Archives have been divulged to researchers and the accusers have been challenged to prove their allegations ever since 1986, no jurist – be they Muslims or non-Muslims – has come across a single document to prove that the Ottoman State committed a massacre.
Thirdly; as for the legal basis of Tahjir, viz. Deportation, the Exalted Prophet Muhammad deported the Jews of Quraizids from Madinah, for they betrayed although they had promised to protect the city as their common land against the foes. Thus it is permissible to carry out deportation with the same reason, as was in the case of the Ottoman State in April 1915.
Consequently, although there is no truth in it, that the Muslim Turkish nation has been continuously accused for almost a century of having committed an Armenian genocide is neither historical nor scientific but solely political. By opening the Ottoman Archives the Turkish Republic has given the best reply to such allegations [6].
[4] Ibn’ul-Qayyim Al-Jawzi, İ’lam-ul-Muwaqqıîn, v. IV. pgs. 372-378; BA, YEE, no. 14-1540, pg. 12 et seq.; Cin-Akgündüz, Turkish Legal History, v. I, Konya 1989, pgs. 140, 157.
[5] BA, YEE- 23-1515; 14-1540, 1610; BA, YEE, nr. 23-1516, sh. 2 vd.; BA, YEE, nr. 23-1421-11-71; YEE, 23-1515; BA, YEE, nr. 14-1610; Alûsî, Mahmûd, Ruh”ul-Maanî I-XXX, Beyrut, c. 28, sh. 20 vd. Ayrıca bkz. İbn”ül-Kayyım, İ”lâm”ül Muvakkıîn, an Rabbi”l-Âlemîn I-IV, Beyrut 1973, c. 4, sh. 372-377; Baykal, Bekir Sıtkı, “93 Meşrutiyeti”, sh. 45-83; Baykal, Bekir Sıtkı, “Birinci Meşrutiyete Dair Belgeler”, Belleten, c. XXIV, sayı 96(1960), sh. 601-636; Pakalın, Mehmed Zeki, Son Sadrazamlar ve Başvekiller, İstanbul 1940, c. I, sh. 325 vd.; Said Nursî, Divan-ı Harb-ı Örfî, 66-67; Münâzarât, Teksir, 10 vd.; Mürsel, Safa, Devlet Felsefesi, 259 vd.; Akgündüz, Ahmed, Eski Anayasa Hukukumuz ve İslâm Anayasası, İstanbul 1997; Ebül-Ülâ, Mardin, Medenî Hukuk Cephesinden Ahmed Cevdet Paşa, İstanbul 1946, sh. 8-10, 143; Karakoç, Tahşiyeli Kavanin, c. II, sh. 29 vd.; Okandan, Âmme Hukukumuzun Anahatları, c. I, sh. 134 vd.; Düstur, I. Ter. 4/2-3; 1293/1876 tarihli Kanun-i Esasi, md. 42-78; md. 3, 7, 11 (Düstur, I. Ter. 4/4-58); İbn”ül-Emin Mahmut Kemal, Son Sadrazamlar, c. I, sh. 325 vd. (II. Abdülhamit”in takdim nutku); Okandan, Âmme Hukukumuzun Anahatları, c. I, sh. 143 vd.; 150-151; Osman Nuri, Abdülhamid-i Sâni ve Devr-i Saltanatı, İstanbul 1327, sh. 30-100; Okandan, Âmme Hukukumuzun Anahatları, c. I, sh. 116-134; Mahmûd Celâleddin Paşa, Mir’ât-ı Kâinât, c. I, sh. 188-200, 220-224; Karal, Osmanlı Tarihi, c. VIII, sh. 215-230.
[6] Kur’ân, Haşr, Âyet 1-2; Elmalı, Muhammed Hamdi, Hak Dini Kur’ân Dili, sh. 4806-4819; Süslü, Azmi, Ermeniler ve 1915 Tehcir Olayı, Ankara 1990, sh. 61-177; Öztuna, Osmanlı Devleti Tarihi, c. I, sh. 659-662; Uras, Esat, Tarihte Ermeniler ve Ermeni Meselesi, İstanbul 1987, sh. 149-639; Sonyel, Salâhi R., “Yeni Belgelerin Işığı Altında Ermeni Tehcirleri”, Belleten, c. XXVI, sayı 141(1972), sh. 31-49; Sonyel, Salâhi R., “Tehcir ve “Kırımlar” Konusunda Ermeni Propogandası Hıristiyanlık Dünyasını Nasıl Aldattı?”, Belleten, c. XLI, sayı 161(1977), sh. 137-175. ‘
