Criminal Codes, Crime, and the Transformation of Punishment in the Late Ottoman Empire

8Criminal Codes, Crime, and the Transformation of Punishment in the Late Ottoman Empire

BY THE END of World War I, the Ottoman Empire had significantly transformed its criminal justice system to include modern centralized penal codes, policing organizations, criminal courts, modern law schools, and a centralized prison system wherein the vast majority of convicted criminals received incarceration as punishment. These transformations did not happen overnight, but often came about in fits and starts as imperial and local officials attempted to deal with the challenges and crises experienced during this period. This “modern” criminal justice system was not borrowed wholesale from Western Europe. Instead, it possessed deep roots and antecedents in Ottoman “classical” criminal justice practices and Islamic law. Themes such as prisoner rehabilitation, prison labor, the Circle of Justice, and legitimizing imperial practice through Islamic law still functioned and took precedence in the late Ottoman legal system.1 The assumptions and world view associated with Ottoman modernity governed this transformation. Ottoman officials implemented these reforms in order to centralize power over criminal justice through the rationalization and standardization of legal procedure, criminal codes, court practices and jurisdictions, policing, and criminal punishment.2 These transformations, however, should not be viewed as simple impositions of state authority detached from societal norms or mores.3 Instead, they should be seen as an imperfect outcome of negotiated, collaborative, and contentious exchanges between and among central and local state actors and societal forces, with the central state holding a distinct power advantage.

This article investigates the transformation of criminal law, practice, and punishment within the nineteenth and twentieth-century Ottoman Empire utilizing a socio-legal approach. It focuses closely on five intertwined aspects of this “modern” criminal justice system, namely the concrete links between newly codified penal codes, the extensive delineation of crimes, the adoption of incarceration as the primary form of criminal punishment, incarceration rates for particular crimes, and the deployment of Islamic legal norms and mores to legitimize these reforms. Through the promulgation and then expansion of these new penal codes together with other aspects of its overhauled criminal justice system, the Ottoman administration gradually gained a monopoly over the adjudication of criminal matters. This effectively circumscribed the autonomy of local magistrates and Islamic court judges in adjudicating criminal cases and meting out punishments, thus making the prison the primary site of criminal punishment within the empire. This transformation constitutes a dynamic process of adoption and adaptation, continuity and change, and innovation that thoroughly undermines the worn-out narrative of rupture, Westernization, secularization, and cosmetic reform often utilized to characterize such attempts at reinvigorating the empire. In fact, this process of transformation and amalgamation of new methods of governance with its already existing institutions and practices represents a distinct Ottoman modernity.4 Throughout the entire process of criminal justice transformation, Ottoman officials continued to legitimate their reforms with Islamic legal norms, practices, statutes, and mores augmented to meet the constraints of the modern world.

This article first provides a short overview of penal code codification in the Ottoman Empire with a central focus on the creation and expansion of the 1858 Imperial Ottoman Penal Code (IOPC) during the last century of the empire’s existence, with a particular emphasis on the 1911 reforms to the IOPC. It then discusses general connections between the IOPC and prison statistics to see how this penal code reflected views on criminality and actual incarceration. Finally, it looks more closely at the relationship between these penal codes, criminality, and incarceration through a detailed analysis of four major areas of criminal codification and prison statistics specifically related to crimes against state officials, honor, theft, and violent crime.

Ottoman bureaucrats created the empire’s first codified penal code in 1840 (Ceza Kanunnamesi) shortly after the declaration of Gülhane Hatt-ı Hümayun in 1839.5 This code contained thirteen articles in forty-two sections and an epilogue, and dealt with crimes related to treason, incitement to rebellion, embezzlement of state funds, tax evasion, and resistance to authority. The code was not comprehensive regarding the many crimes and punishments stipulated by Sharia law (hadd, qisas, diyet, and ta’zir), nor those crimes and punishments enforced by state executive authority (siyaset).6 It did stipulate that the punishment for homicide would now include incarceration with hard labor in addition to the traditional penalty of blood-money (diyet). Generally speaking, though, this code did not change traditional forms of punishment. It still allowed discretionary corporal punishments and fines (ta’zir and siyaset), meted out respectively by kadıs and local magistrates. In other words, local Islamic court judges and magistrates continued to possess great autonomy in identifying, trying, and punishing criminals according to their discretionary powers; all of which were sanctioned under official Ottoman-Islamic legal authority.

Other items covered in the 1840 code included changes in legal procedure and clearly stipulated punishments for select criminal offenses. Although some of these ascribed punishments included incarceration, a range of “traditional” punishments continued to be employed. For the first time in the Ottoman Empire, this code stipulated specific punishments for offenses such as reprimands, corporeal punishments, incarceration, banishment, and hard labor, thus removing some of the discretionary authority held by judges and magistrates. The 1840 Penal Code did not, however, place the adjudication of all these offenses under the authority of one court, be it Islamic or divan council. Some offences continued to be adjudicated by separate authorities with others being handled jointly. Islamic legal procedures, however, still applied to all criminal proceedings.7 Reformers intended this code to serve as a bulwark against administrative corruption and abuse of power, thus maintaining the Circle of Justice.8 The majority of its articles dealt with such issues and was intended to centralize power by expanding the notion and practice of rule of law in government administration.9 The 1840 Penal Code constituted an important combination of executive and religious law not previously found in an Islamic society wherein hadd, qisas, diyet, ta’zir, and siyaset crimes and punishments were completely intertwined and indistinguishable from each other in a common codified code legitimated by Islamic legal principles, practices, and mores. This code set the precedent for all subsequent penal codes promulgated within the empire until its demise.

Ottoman legal reformers addressed some of the inadequacies of the 1840 Penal Code by promulgating the 1851 New Penal Code (Kanun-i Cedid). This new code better fulfilled the demands of the 1839 Gülhane Decree by expanding criminality to offences involving crimes against life, honor, and property, such as forgery, abduction of girls, and the making of indecent sexual advances to minors. Additionally, it better clarified procedures adjudicating homicide; addressed some of the needs of sick and indigent prisoners; and regulated the punishment of slaves. The general purpose of the 1851 Penal Code was to assist in the maintenance of public order, prevent tyranny and corruption by government officials, and protect individual rights.10 In essence, the code expanded its predecessor without any major changes to criminal legal procedure or practice.

In 1858 Sultan Abdülmecid and Reşid Pasha replaced the 1851 Penal Code with the Imperial Ottoman Penal Code (Ceza Kanunname-i Hümayunu). Over the final sixty years of the empire’s existence, law makers regularly expanded and augmented the IOPC.11 It, therefore, became the foundation for criminal justice transformation, including the transition from corporeal punishment to fines and incarceration as the primary forms of criminal punishment. In addition to the penal codes of 1840 and 1851, the origins of the IOPC are also closely linked to broader imperial reforms, specifically the 1856 Islahat Fermanı.

Reşid Pasha penned the Islahat Fermanı with assistance and pressure from the British ambassador to the Ottoman Empire, Sir Stratford Canning. Sultan Abdülmecid issued this declaration for multiple reasons, two of which were to rejuvenate the Tanzimat reforms and fulfill a host of European Powers’ designs on the empire. The decree included a crucial passage related to criminal justice that specifically discussed the need to transform the empire’s penal codes, criminal courts, punishment (including discontinuance of torture), and prisons.

Penal, correctional, and commercial laws . . . shall be drawn up as soon as possible and formed into a code . . .

Proceedings shall be taken, with as little delay as possible, for the reform of the penitentiary system as applied to houses of detention, punishment, or correction, and other establishments of like nature, so as to reconcile the rights of humanity with those of justice. Corporal punishment shall not be administered, even in the prisons, except in conformity with the disciplinary regulations established by my Sublime Porte, and everything that resembles torture shall be entirely abolished.12

The Islahat Fermanı, therefore, constitutes the impetus for creating a “modern” criminal justice system in the empire by calling for comprehensive criminal codes and reforming punishment.

In accordance with the Islahat Fermanı, the empire promulgated the Imperial Ottoman Penal Code on 9 August 1858.13 Portions of the new code included adaptations of the 1810 French Criminal Code. The most striking difference between this new penal code and its predecessors was that it possessed an entire section devoted to the protection of individual rights. Crimes against individuals were divided into three distinct categories of crime: crimes against life and personal protection, honor and dignity, and personal property.14

The adoption of the IOPC represents a fundamental shift in Ottoman and Islamic criminal law and practice. For the first time in Ottoman history the preservation of personal rights was codified and rationalized within an Islamic legal framework with the state acting as guarantor. Contrary to contemporary scholarship, this does not represent the Westernization of Ottoman criminal law. While it was the bureaucratic Ottoman state that codified these laws, Islamic court judges (kadıs) still rendered judgments and presided over all criminal proceedings. Ottoman administrators legitimated the IOPC by claiming that it was in harmony with Islamic legal principles and practices.

Article 1: Whereas the punishment of offences taking place directly against the Government lies with the State, and the consideration that offences taking place against a person disturb the public tranquility likewise concerns the State, this Code also guarantees and secures the determination of the degrees of the punishment the fixing and execution of which lie with the order of the Supreme Authority according to the Sher’; without prejudice, however, in any case to the personal rights prescribed by the Sher’.15

The IOPC also continued to combine both state and Islamic criminal law within the same code as established in the 1840 Penal Code, but did so much more extensively.

The rationalization and codification of these rights, however, greatly circumscribed the autonomy of Islamic court judges and local magistrates by standardizing punishments for criminal behavior.16 Instead of characterizing these reforms as secularization, they should be viewed as the continuation of the standardization and rationalization of executive and Islamic criminal law and practice begun with the 1840 and 1851 penal codes that brought all forms of criminal punishment sanctioned by Islamic law (hadd, qisas, diyet, ta’zir, and siyaset) under a uniform penal code and regulated adjudication. For example, Articles 168–172 of the IOPC continued to make provisions for qisas and diyet punishments in cases of premeditated murder in addition to incarceration with hard labor, thus demonstrating the preservation and balancing of administrative and Islamic legal needs and stipulations.17

The IOPC was the forerunner to larger reform efforts intended to overhaul the entire Ottoman justice system. This restructuring eventually included the drafting of the first codification of Islamic civil law known as the Mecelle.18 As mentioned above, it also laid the ground work for the circumscription of kadı interpretive autonomy, because judicial reforms, the standardization of procedure, practice and punishment, and codified legal codes all limit a judge’s right to legal interpretation. The IOPC also facilitated the creation of Nizamiye mahkemeleri or civil/criminal courts. While the Nizamiye and Sharia courts worked in very close cooperation for the first couple of decades, the Nizamiye courts eventually superseded Sharia courts in all civil and criminal matters except for inheritance and family law.19 Avi Rubin convincingly demonstrates, though, that these Nizamiye courts should not be considered “secular” in contra-distinction to the “religious” Sharia courts, because the kadı presided over the adjudication of law in both courts. Ottoman administrators maintained the same Islamic legitimating structures for these new courts as they had for centuries, thus demonstrating continuity with long-held legal practices, but transforming them to meet the strictures of the modern world.20 This is Ottoman modernity at its clearest: Ottoman rulers and law makers simultaneously built off the empire’s own traditions by adopting and adapting modern instrumentalities of governance to the empire’s specific context.

An analysis of the transformation of the IOPC from 1858 to 1911 clearly demonstrates the shift in the conceptualization of crime and punishment in the Ottoman Empire over the long nineteenth century. Lawmakers greatly expanded the code through the expansive delineation of new crimes with fixed punishments. With the exception of execution for very serious offenses, such as premeditated homicide, banditry, rebellion, and treason, lawmakers eventually discontinued all forms of corporal punishment and the use of torture, thus completely circumscribing the ability of local magistrates and judges to utilize discretionary punishments (ta’zir and siyaset). Administrators replaced these punishments with clearly delineated fines and prison sentences according to the crime committed. Occasionally, exile was still employed as a possible criminal punishment. Some prison sentences also continued to include hard labor (kürek), especially for serious crimes (cinayet).

By 1911 the IOPC consisted of 264 articles dealing with criminal legal procedures, crimes, liabilities, and punishments. Lawmakers divided the code into four main sections: a “Preliminary” and three chapters. The “Preliminary” consisted of forty-seven articles broken into four parts that stipulated the general grades and degrees of offenses and punishments with specific attention to delineating the punishments for serious (cinayet) and lesser crimes (cünha and kabahat). The “Preliminary” also specified the guidelines for determining criminal liability and culpability.21

The second section of the IOPC delineated crimes carried out against the Ottoman state and the general well-being of its populace and their associated punishments. This section included 121 articles divided into sixteen subsections. The sixteen subsections deal with crimes that disturb the external and internal security of the empire, such as espionage, incitement to riot and civil war, brigandage, banditry, abrogation of the constitution, and so forth. Other subsections enumerate the crimes of bribery, theft of state property, abuse of office, power, and negligence of duties, disobedience or opposition to government officials, aiding and abetting criminals, impersonating Ottoman officials, interfering with religious privileges, disrupting imperial telecommunications, censorship and printing, counterfeiting, forgery, and arson.22

The third section of the IOPC is divided into twelve subsections containing eighty-six articles detailing crimes and punishments against individuals. The enumerated crimes against persons include homicide in its various forms, bodily injuries, threats, abortion, selling adulterated beverages and medicines, violations of honor (rape, molestation, and kidnapping), improper arrest and incarceration, perjury, slander, vituperation, theft, bankruptcy, embezzlement, breach of contract, fraud, and the destruction of private property.23 The fourth and final section of the IOPC consists of twelve articles associated with minor crimes (kabahat) and punishments and includes matters pertaining to sanitation, cleanliness, and the police, such as improper maintenance of chimneys and furnaces, disturbing the peace with loud noise or raucous behavior, public drunkenness, and the improper burial of corpses.24

The reforms of the 1858 IOPC during the Second Constitutional Period culminated a continuous process of revision begun with the code’s initial promulgation. However, since its adoption, the IOPC had never been more comprehensively augmented than during the Second Constitutional Period. On 4 June 1911, the Ottoman Parliament reissued the 1858 IOPC in its most modified and expanded form.25 Most CUP penal code reforms focused on four separate, but related areas: rationalizing punishments and criminal proceedings; expanding and centralizing governmental power to determine and adjudicate criminal activity; gaining a greater monopoly over the use of force by assuming sole authority in exacting, determining, and imposing punishments; and eliminating intermediaries between state centralized power and criminals. These changes in turn enabled the CUP and the Ottoman administration to gain greater access to the populace and assume more responsibility for its welfare through the protection of individual rights and private property. These changes range widely over various issues important to the empire and its peoples and deal with private property, personal rights, prevention of government oppression and corruption, protection of honor, protection of state officials, and so forth. Every section of the code was revised, expanded, and updated. In fact, out of the 265 articles contained in the IOPC, a total of fifty-six articles were rescinded, revised, and/or expanded.26

As the CUP revised the IOPC, it also implemented the first of its extensive prison reforms in late 1911 and early 1912 including the creation of the first centralized prison administration, a comprehensive prison survey, a wide-ranging program to completely refurbish and modernize the empire’s prisons and jails, and efforts to professionalize the prison cadre and rehabilitate prisoners. Prison reform had been an ongoing process within the empire since the 1850s. As criminal punishment transitioned from being multifaceted to primarily incarceration and fines, there was an increasing need for additional prison space, especially since the empire’s prisons suffered from massive overcrowding.27 The need for more prison space reached its greatest point during the Second Constitutional Period with the CUP’s agenda of totalizing criminal justice reform. It is, therefore, no accident that the CUP enacted judicial, criminal, and penal reforms together in 1911–12, especially since the Ministry of the Interior overhauled its entire administration as well.

Penal Code Revisions, Crime Statistics, and Ottoman Sensibilities to Criminality

There are, of course, deep connections between the 1911 revisions to the IOPC, the 1912 Ottoman prison survey, the resulting crime statistics, and CUP and Ottoman sensibilities to criminality, crime, and punishment. The majority of crimes listed on the prison survey closely coincide with those most heavily augmented by the sweeping changes to the 1911 penal code. An analysis of the intersection between these penal code reforms and the prison survey also offers intriguing insights into Ottoman predilections concerning modern state formation, particularly regarding the consolidation of authority in the hands of the state in criminal matters, threats to power and the state, and issues dealing with social order and control.

Crime and the Ottoman Prison Survey28

The Ottoman Prison Administration divided the category for crimes, entitled “Types of Crimes” (Nev‘i-i Ceraim) into two sections: “Cünha ve Kabahat Kısmı” (“Section for Lesser Crimes”) and “Cinayet Kısmı” (“Section for Serious Crimes”).29 The first section contained twenty separate lesser offences:

1. Disrespecting civil servants, gendarme, and soldiers

2. Aiding and abetting the escape of a convict and concealing habitual perpetrators of serious crimes

3. Being without good character, i.e., a vagrant without skills or profession

4. Forgery of travel permits and passports

5. Assault and battery

6. Offering abortions and harmful medications

7. The seduction and dishonoring of a virgin

8. Indecent sexual behavior

9. The verbal and physical molestation of youth

10. Unlawful arrest and incarceration

20. Debtors30

These lesser crimes carried a much lighter sentence than those of the second section (cinayet) and constituted just over a third of the Ottoman Empire’s 1911–12 prison population.31 The second section (Cinayet Kısmı) contained fifteen categories of serious crimes:

21. The harboring of highway robbers/bandits and embezzling state goods