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.
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.
This section is divided into five subsections. The first deals with the crimes listed on the 1912 Ottoman prison survey. The other five subsections discuss major crimes listed on the prison survey, how they relate to the revisions made in the IOPC, and the number of prisoners incarcerated for these crimes. This discussion provides critical insights into late Ottoman sensibilities towards crime, criminal justice, and punishment. These four subsections are “Crimes against State Officials,” “Crimes against Honor,” “Theft,” and “Violent Crimes.”
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
11. Switching, concealing, and stealing a child and kidnapping a girl
12. Providing false witness, oath, or evidence during a judicial proceeding
13. Vituperation, insulting, and slandering
14. Fraud
15. Theft
16. Breach of confidence/embezzlement
17. Wasting or destroying a person’s goods, property, and documents/papers
18. Opposition to regulations, announcements, and the warnings of a police officer
19. Miscellaneous lesser crimes and misdemeanors
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
22. Premeditated homicide/first degree murder
23. Homicide without premeditation
24. Willful homicide without premeditation
25. Severe assault and battery and cutting off of a body member/limb/organ
26. The intentional or forced aborting of a fetus
27. Forced violent indecent sexual behavior/rape or sodomy
28. Forcibly abducting a female who has reached puberty
29. The forgery of seals and official items
30. Arson
31. Theft with severe conduct and injury
32. Theft via breaking and entering by breaking the door or breaching the wall
33. Theft carried out with severe conduct but without injury
34. Possession of weapons forbidden by the Ministry of War
35. Prisoners awaiting trial from martial law courts32
Those convicted of or awaiting trial for serious offenses made up almost two-thirds of the Ottoman Prison population of 1911–12.33
The vast majority of the crimes listed on the prison survey questionnaire correspond to crimes against property, life, honor, and social order. Eighteen of the above crimes deal in some way with violent behavior against an individual. Fourteen crimes deal with theft or fraud. Nine relate to honor in terms of character and sexual purity. Nine are associated with function, authority, and the power of the state. Finally, all of the offenses, in one way or another, deal with crimes against social order, discipline, and control. None of these crimes, however, are associated with espionage, bribery, the selling of government secrets, dereliction of duty, or corruption. The CUP was interested in collecting information on very specific types of crimes and the number of those who perpetrated them. The crimes collected by the Ottoman prison survey were the ones most substantially altered or created by the 1911 penal code reforms.
According to the IOPC, there were hundreds of cinayet, cünha, and kabahat crimes punishable by incarceration. The Ottoman Prison Administration, however, only requested data for a small portion of those crimes. The survey listed some crimes as a general category, such as theft, but most crimes listed on the survey were quite specific. A close analysis of these crimes, their relation to the 1911 revisions of the IOPC, and the number of criminals convicted of each of these crimes offers revealing insights into Ottoman society and CUP ideology regarding what criminal behavior represented threats to public order and safety.
Throughout the history of empires and other polities, governments have placed a high priority on protecting officers while performing official duties, such as tax collection, law enforcement, maintenance of the regime, and protecting public order. Ottoman interest in these issues is, therefore, not surprising. The amount of attention paid to these issues, however, reveals their importance to the CUP-led government, even though Ottoman courts prosecuted very few individuals for these crimes.
The prison administration listed two crimes on the Ottoman prison survey dealing with offenses against state officials. The survey labeled those crimes as “Disrespecting civil servants, gendarme, and soldiers” and “Opposing regulations, announcements, and warnings of the gendarme/police.” Regulations and punishments associated with these crimes are contained in Articles 112–116 of the IOPC. The Ottoman Parliament in 1911 significantly augmented these articles by more clearly delineating these offences and their penalties. The only article not repealed and substituted with a new version was Article 112. Article 112 deals with the crime and punishment for disrespecting or maligning civil servants. Article 113 concerns the crime and punishment for disrespectful, disruptive, or abusive behavior and intimidation against soldiers and police and their associated punishments. The Ottoman Parliament repealed and replaced this article with a similarly worded one. The punishment, however, was doubled to fifteen days-six months incarceration.
Lawmakers expanded Article 114 to include low ranking gendarme together with police and soldiers. In its earlier version, this article only related to the beating of one of these officials. As a result of the 1911 revisions, however, it now included offenses related to any kind of compulsive treatment, threats, or violence against these government officials. The punishment for such an offense, however, was reduced from six months-two years to six months-one year incarceration. The Ottoman Parliament also made revisions to Article 115 (wounding any government official charged with carrying out his duty) in order to define this crime’s punishment more clearly as double that of normal assault, i.e., “imprisonment for six months to three years.”34
Article 116 was the most significantly revised. The 1858 version of Article 116 dealt only with the crime of failure to appear in court when officially summoned. This crime carried a small fine determined by circumstances, such as seriousness and if the accused was a repeat offender.35 In contrast, the 1911 version of Article 116 was significantly expanded. Ironically, the new version completely elides the crime of failure to appear in court. It does, however, clearly stipulate crimes associated with organized protests against state officials, especially police, military personnel, and tax collectors. Punishments for such an offense range from twenty-four hours to two years of incarceration depending on the size, actions, and whether or not the protesters were armed.36
It is ironic, but not surprising, that such an article would be written and passed during the Second Constitutional Period. In fact, the CUP armed, organized, instigated, and directed a series of violent protests and uprisings against government officials attempting to collect two very unpopular taxes prior to the Revolution of 1908. These 1905–07 tax riots occurred in various places around the empire, including Erzurum, Trabzon, Kastamonu, Mosul, and Sivas.37 With the passage of this newly revised article, the CUP and Ottoman Parliament further strengthened the 1909 laws banning strikes and public protests. It appears that the masses had served their purpose in assisting the 1908 Constitutional Revolution and reversing the 1909 counter coup, but now had to be controlled in order to maintain social order and to protect the power of the new regime.
According to the prison surveys, the number of prisoners arrested, convicted, and incarcerated for “Crimes against State Officials” was very low. In the provinces (vilayet) of Istanbul, Beirut, Baghdad, and the Hijaz, and in the administrative district (sanjak) of Canik, there was a total prison population in 1911–12 of 15,091. This represented over half of the total prison population of 27,700.38 Out of these 15,091 prisoners only 300 were incarcerated for “Crimes against State Officials” and most of them served very short prison terms. Two hundred and sixty out of the 300 prisoners were either pardoned or received punishments of one day-one month’s incarceration. The other forty prisoners received varying sentences ranging from one month-one year, with just a hand full of prisoners being incarcerated for the maximum sentence of two years.39 In other words, most offenses were not serious. Unfortunately, without the documents from the actual court cases it is impossible to know the exact nature of these prisoners’ crimes. Notwithstanding the low numbers of prisoners convicted of this crime, it was still important to the CUP to track the numbers of prisoners arrested, convicted, and serving time for disturbing the peace and attempting to abrogate state authority.
The Ottoman Parliament in 1911 also significantly altered the IOPC section dealing with crimes against an individual’s honor, including sexual offenses, perjury, calumny, and vituperation and proceeded to collect prison statistics associated with these crimes. IOPC Articles 197–215 delineate the abovementioned crimes against honor.40 Although these crimes also do not represent a significant number of incarcerations, they do constitute a significant portion of the crimes for which prison statistics were collected. Out of the thirty-five crimes listed on the Ottoman Prison Survey, ten crimes were related to this offence.
The most significant modifications relating to “Crimes against Honor” are Articles 197, 201, 206, 213, and most extensively, Article 214. Article 197 concerns the commission of the “abominable act”, i.e., “unlawful unnatural or natural intercourse, with a minor.”41 In the original 1858 version of the article, a child over the age of eleven was held accountable for the action and was subject to punishment. This standard for adulthood and criminal culpability is based on Islamic law according to when a child manifests having attained puberty. The age of discernment or accountability was raised to fifteen years old in 1911. The significance of this change in regards to changing notions of childhood constitutes a clear example of CUP attempts to standardize and rationalize legal codes and punishment, particularly related to criminal culpability since, according to Islamic law, puberty begins at different times for each individual depending on the sex of the child. The Ottoman administration rationalized this to a specific age that was regarded in Islam as the latest age of accountability, even if puberty had not yet manifested itself. This is an excellent example of Ottoman administrators attempting to rationalize and standardize legal practice through the legitimization of and adherence to Islamic law and practice.42
The revisions and addenda adjoined to Article 201 are surprisingly progressive for anywhere in the world in the early twentieth century. Originally Article 201 only dealt with the “corruption of youth,” for which the 1912 prison survey specifically collected statistics, however, in 1860 this article was expanded to include adultery and its related punishments. The punishments called for in the 1860 version were very one-sided and harsher on a wife who committed adultery than a husband. This revision mirrored exactly the 1810 French Penal Code. In 1911, however, the punishments of incarceration were made almost exactly equal for both the wife and husband, but unlike the wife taken in adultery, the husband also had to pay a fine in addition to incarceration.43
Statistics for “Indecent Sexual Behavior” were also very low, but still found on the Ottoman prison survey. According to the survey, the vast majority, over ninety-five percent of all prisoners arrested, convicted, and incarcerated for “Indecent Sexual Behavior” were males. The ratio of males to females convicted for this crime was 325 males to thirty-one females.44 This statistic has several possible meanings. One, men were arrested, convicted, and punished for committing unlawful sexual behavior, such as fornication, prostitution, adultery, or same-sex sexual acts, more than women. Two, the crime of “Indecent Sexual Behavior” was not vigorously prosecuted. Three, males typically dealt with wives or female relatives who committed sexual crimes extra-judicially, through so-called “honor killings.” Finally, perhaps sodomy was more commonly prosecuted than other sex crimes, thus targeting males more readily in the empire’s patriarchal society, wherein men dominated the public sphere.
Article 206 represents another example of the CUP in 1911 completely rescinding the previous versions of the article and replacing it with a highly modified and more comprehensive version of the 1858 article. All versions of the article deal with the crimes of kidnapping children and girls at the age when puberty was supposed to begin (nine years old for females and eleven years old for males). The most significant changes carried out in 1911 consisted of first, expanding the victims of kidnapping to include adults as well as children. Second, the victims of the crime included both males and females, whereas the original version only stipulated females. Third, even though victims now included both sexes, female victims were still the primary focus of the article and the associated punishments. Fourth, the ages of childhood and accountability were also changed from being determined by strict adherence to Islamic legal norms to being set at the maximum age of accountability (fifteen years old) in reference to Islamic legal stipulations concerning the latest date of accountability for all individuals, even if puberty had not manifested itself. Finally, unlike the 1858 version of Article 206, the 1911 version removed all jurisdiction regarding “Crimes of Honor” from Sharia court procedural directives. Only the Nizamiye courts could adjudicate these types of crimes.45
Statistics for these crimes were collected by the 1912 prison survey did not include kidnapped adults, but rather focused on the kidnapping of children of both sexes and the kidnapping of females near the age of puberty, but not yet considered an adult (mashriqa). The first crime dealing with the kidnapping of children was considered a lesser crime (cünha) and the second was considered a serious offense (cinayet).46 This was a crime for which very few were incarcerated during the Second Constitutional Period, but notwithstanding its rarity, the collection of statistics for this offense demonstrates the administration’s clear interest in protecting the welfare of the empire’s children and expanding state-patriarchy.47
Article 213 of the IOPC dealt with crimes against an individual’s honor related to slander. In the original version of the article, distinctions were made between slandering a normal civilian and a government official with the punishment for slander against a government official carrying a much heavier punishment. The 1911 version made no distinction between slandering a civilian and a government official in terms of gravity or punishment. In fact, government officials were not even mentioned in the 1911 article, since this crime was dealt with in Articles 112 and 113 discussed above.48
The crime of vituperation and its associated punishments was the subject of IOPC Article 214. The original 1858 version was very short and outlined only the basics of the crime, i.e., “[falsely] ascribing some vice or otherwise” to another person, and stipulated a punishment of brief incarceration or fine for the offense.49 In 1911, however, parliament rescinded the 1858 version and replaced it with a substantially larger article, stipulating in minute detail the definition of vituperation, how it must be committed, i.e., in a public setting with witnesses, etc., the rights of the accused, and the requisite punishments (from twenty-four hours to six months incarceration and/or a fine of between five and fifteen liras). In fact, the original article is only fifty-six words long, but the 1911 version is almost one thousand words in length.50 It should be clearly evident that from the sheer length and detail of the 1911 version of Article 214 that vituperation was a key concern for the Ottoman Parliament and the CUP.
The CUP was not above using strong arm tactics to pressure, intimidate, and even assassinate its detractors and rivals. The 1912 general election which occurred less than a year after these extensive revisions to the IOPC and three months after the completion of the Ottoman prison survey is a clear example of the CUP’s strong arm electioneering tactics.51 Regardless of the reasons for such a detailed and extensive reformation of Article 214 on vituperation, Article 214 was the most revised of all IOPC articles in 1911. This article and its revisions demonstrate yet again CUP desires to control criticism and protect its power.
In the 1912 prison survey the crimes of slander and vituperation were listed under the same heading and their statistics combined. It is, therefore, impossible to distinguish between these two closely associated offences as tabulated by the prison questionnaires.52 The crimes of slander and vituperation had a moderate rate of incarceration during the Second Constitutional Period. In each of the provinces and administrative districts previously mentioned (Baghdad, Hijaz, Istanbul, Beirut, and Canik) there were only 423 out of 15,091 total prisoners convicted of slander and vituperation in 1911–12. Over ninety percent of these prisoners received and served prison sentences of twenty-four hours to one month.53 Their crimes could not have been too serious, especially since the maximum penalty for felony (cinayet) slander was ten years hard labor. If a particular slander or vituperation constituted a less serious offense (cünha) the maximum penalty was between one and three years of incarceration.54 The prison survey results, therefore, indicate the prevalence of short prison sentences.
The second most prevalent crime committed in the Ottoman Empire was theft (sirkat) in all of its related forms, including petty theft, violent theft, breaking and entering, fraud, embezzlement, and robbery. Theft-related crimes constituted seven of the thirty-five crimes listed on the prison survey questionnaire. More prisoners were incarcerated for crimes associated with theft than any other crime except assault and battery (derb ve cerhi). Not surprising, it was also a key area of revision in the IOPC by the Ottoman Parliament in 1911. In fact, several of the IOPC’s articles relating to theft were among the most heavily revised. For example, out of the twenty-six theft related articles, six were revised in 1911 (Articles 220, 222, 224, 225, 226, and 230). Articles 216–241 of the IOPC stipulate the various offenses and punishments associated with theft related crimes.55
The specific types of revisions made in 1911 to theft related articles include strengthening the punishments and expanding the criteria for breaking and entering. In the 1858 version of Article 220, breaking and entering only referred to drilling through, digging under, or climbing a wall or breaking down a door or window of a building of any sort. In 1911 this type of crime was expanded to include the breaking and entering into any type of closed structure, be it a building, safe, cupboard, or the like.56 This inclusion greatly expanded the definition of this type of theft and was designed to protect private property more thoroughly. It also expanded the Islamic definition of breaking and entering, upon which the 1858 definition was based. Islamic criminal law was still the basis of the definition for this crime, however. Ottoman authorities did not abrogate Islamic law here, but simply expanded it to fit the interests of a modern capitalist state fully integrated into the world economy.
Revisions to Article 222 in 1911 simply increased the punishment according to the circumstances under which people perpetrated theft, such as whether the theft occurred at night or day, whether the thief was armed or not, and whether the crime was committed by a servant or apprentice against her/his master. The punishment was increased from six months-three years to one-three years of incarceration.57 Punishing servants and apprentices more harshly for theft represents the continuation of Islamic norms and mores in the IOPC.
Other revisions enacted in 1911 dealt mainly with imposing harsher penalties for theft-related crimes. In many cases officials doubled the stiffest penalties of incarceration. This was certainly the case for Articles 224–226. An additional revision to Article 224 expanded the list of items for which a certain punishment could be imposed for theft. These items were mainly related to agriculture, such as horses, other draft animals, and tools.58
The most extensively revised theft-related article was Article 230. The original version dealt only with petty theft and pick pocketing. The Ottoman administration, however, greatly expanded and revised this article several times over the course of the second half of the nineteenth and early twentieth centuries. The most significant changes dealt with expanding liability for these crimes to those who purchase, receive, and/or sell stolen goods. Revisions also included the mitigation and reduction of punishments for those who voluntarily came forward regarding their crimes, confessed them, and made restitution prior to court proceedings or arrest.59
The prison survey questionnaire of 1912 included nine crimes, associated in one form or another with theft. These consisted of fraud, embezzlement, breaking and entering, violent robbery, and others. The prison population of 1911–12 in the administrative regions of Istanbul, Bagdad, Beirut, the Hijaz, and Canik incarcerated for misdemeanor theft consisted of 2,596 out of a total population of 15,091.60
The protection of private property was a key facet of CUP penal reform as reflected by the amount of revisions made to the IOPC regarding theft and the number of prisoners arrested, convicted, and sentenced for theft related crimes. Protecting private property was important to Ottoman officials and society dating back at least as far as the sixteenth century, when Sultan Süleyman issued his famous kanunnames and brought Islamic and bureaucratic laws and punishments into harmony with each other. Over the course of the nineteenth century these regulations and laws were even more closely synchronized. Many scholars characterize these rationalizing legal reforms as the Westernization and secularization of Ottoman legal norms eventually resulting in the abrogation of Islamic law.61 This is incorrect. Many of these crimes had been punished over the empire’s existence through a combination of hadd, qisas, diyet, ta’zir, and siyaset punishments. Ottoman bureaucrats during the nineteenth century were not abrogating Islamic criminal or civil law, but were codifying, standardizing, and rationalizing these crimes and punishments. Islamic law was central to the IOPC and its legitimacy, but now transformed to fit the needs of a modern imperial state. No Ottoman administration did this more than the CUP during the Second Constitutional Period. The protection of private property was particularly important to the CUP, because of its attempts to build a Muslim middle class, increase private enterprise, foster industrialization, and promote the economic development and independence of the empire.62
Violent crime represents the most prevalent crimes in the Ottoman Empire, according to the 1912 prison survey. In fact, the survey collected statistics on fourteen different violent crimes. The articles related to violent crimes found in the IOPC, such as threats, physical assaults, and homicide, were also amongst those most substantially altered by the Ottoman Parliament in 1911. The IOPC contains twenty-four articles related to violent crimes (Articles 168–191).63
Concerning homicide, lawmakers significantly changed Article 174. The original Article 174 read as follows:
If a person has killed an individual without premeditation he is placed in kyurek [kürek] for a period of fifteen years; but if this matter of destruction of life has taken place while committing another Jinayet [cinayet] either before the commission or after the commission, or for the sake of committing a Junha [cünha], the person destroying life is punished with the punishment of death according to law.64
The 1911 article expanded the 1858 version by providing greater protection for government officials while performing their duties and made significant clarifications regarding punishments associated with accidental homicides.65 In preservation of Islamic law, the IOPC still preserved the right of victims’ relatives to qisas and diyet punishments stipulated in Articles 171 and 172.66
Other articles changed in 1911 associated with homicide include more severe punishments for accomplices.67 Articles 177, which dealt with assaults that result in the loss of use of a bodily member, was further strengthened and clarified in 1911. Punishment now included the payment of medical expenses and incarceration of not less than six years hard labor.68 Other articles associated with assault and homicide that were augmented in one way or another by the CUP in 1911 include Articles 180, 188, 189, 190, and 191, but most changes dealt with the crimes’ associated punishments.69
The actual number of prisoners convicted of violent crimes, particularly assault and homicide constitute almost half of all those incarcerated in Ottoman prisons in 1911–12. For example, 2,926 out of the 5,738 individuals incarcerated in Istanbul prisons in 1911–12 were convicted and sentenced for violent crime. In Beirut, out of the 4,591 incarcerated persons 2,121 were serving time for either assault or homicide in 1911–12. In Baghdad the number of violent crimes was less than half of the prison population in 1911–12, but still constituted the majority of any type of crime committed. Out of a prison population of 2,528, there were 799 prisoners convicted of violent crimes. In the Hijaz, the percentage of those incarcerated for violent crimes was also not as high as other places, but it still accounted for more than any other class of crime. Eighty-four individuals were serving time for violent crimes out of a population of 460. In Canik, 631 were convicted of assault or homicide out of 1,779 total prisoners.70
The most prevalently convicted and incarcerated offense during the Second Constitutional Period was misdemeanor (cünha) “Assault and Battery” (darb ve cerh). More than any other crime, this constituted the largest percentage of convictions and incarcerations. Most punishments related to this crime, however, indicated that the types of assaults were relatively minor, such as fisticuffs. The vast majority of prisoners incarcerated for misdemeanor assault served less than one month’s incarceration in the administrative regions of Istanbul, Beirut, Baghdad, the Hijaz, and Canik. The overwhelming majority of females incarcerated in Ottoman prisons (which was a miniscule percentage compared to males) were guilty of misdemeanor assault and battery. Female punishments were also primarily twenty-four hours to one month’s incarceration.
The prosecution and prevention of violent crimes, such as assault, rape, and homicide comprised a major portion of Ottoman penal reforms. Central to Ottoman administrative goals was the need to maintain public order and discipline. As the state relied less and less on intermediaries and increasingly centralized its authority over the use of force, maintaining public order, and meting out punishment, there was an increased confluence of what has been characterized as “secular” and “religious” law and legal practice. Islam was not being abrogated, but increasingly standardized to fit the demands of a rapidly changing world. This confluence of the need for social order and discipline and the state having greater access to and control over the lives of individuals is clearly reflected in both the 1911 alterations to the IOPC, in terms of violent crime against individuals, theft, the prevalence of these crimes, and in the results of the 1912 prison survey. Even the crimes where few individuals were actually incarcerated, but still monitored by the prison surveys, add additional insight into Ottoman administrative goals regarding its desire to consolidate power within its hands and protect government officials in their duties. Both of these goals are essential for creating and running a strong, central, and efficient government that possesses a monopoly on the use of force and can project and enforce its policies and laws over the empire’s population.
The codification of Ottoman-Islamic criminal law and practice over the course of the second-half of the nineteenth and early twentieth centuries resulted in several key transformations concerning conceptions of criminality, punishment, and the modernization of Islamic criminal law and practice to meet the rigors of modern statecraft and societal changes. Codification comprehensively rationalized and standardized crime and punishment for the first time in the empire by combining crimes and punishments from Islamic law with executive/state crimes and punishments (hadd, qisas, diyet, ta’zir, and siyaset) within the same code. This effectively circumscribed the autonomy of Islamic court judges and state magistrates to mete out discretionary punishments (ta’zir and siyaset respectively) through the extensive delineation of crimes and ascribed punishments, along with the adoption of new criminal case procedural laws. Besides execution for capital offenses, corporeal punishments including torture were discontinued and banned respectively, thus making incarceration and fines the primary punishment for criminal offenses.
These were not simply cosmetic changes to satisfy Western demands for reform and secularization. They reflect the development of a unique Ottoman modernity that blended the practices and institutions of “classical” Ottoman criminal justice with new methods of governance and practices to create a thoroughly modern criminal justice system still predicated and legitimized by Islamic legal practices, principles, and standards now updated to meet the strictures of the “modern” world. The IOPC was updated, modified, and enforced until the end of the empire as demonstrated by prison statistics draw from the 1912 Ottoman prison survey. These changes and transformations were not devoid of their cultural, political, or societal basis, but wholly rooted in traditional practices, norms, and mores that reflected generally held sensibilities towards crime and punishment in terms of Islamic law, the Circle of Justice ruling philosophy, the protection of individual rights, preserving state power, and maintaining social order.
KENT F. SCHULL is an Associate Professor in the Department of History at Binghamton University and is the editor of The Journal of the Ottoman and Turkish Studies Association.
1.The Circle of Justice possesses deep roots in the Middle East dating back to ancient Mesopotamia and appropriated by Islamic polities including the Ottomans. This self-referential ruling strategy linked sovereignty and prosperity to the maintenance of justice and protection of the population from administrative exploitation, “There can be no government without men; No men without money; No money without prosperity; And no prosperity without justice and good administration.” See Linda Darling, A History of Social Justice and Political Power in the Middle East: The Circle of Justice from Mesopotamia to Globalization (New York: Routledge, 2013), 2–12.
2.For an overview of this transition from the “classical” Ottoman criminal justice system to the “modern”, see Kent F. Schull, Prisons in the Late Ottoman Empire: Microcosms of Modernity (Edinburgh: Edinburgh University Press, 2014), 19–25.
3.Ruth Miller problematically argues that the codification of criminal law in the nineteenth and twentieth-century Ottoman Empire and Turkey created “an abstract system . . . divorced from its social relevance . . . in which purity of function or purity of idea is more important than utility of function or utility of idea . . . it is a system in which crime is purely discursive.” In other words, Ottoman and Turkish criminal law was devoid of its social context and represented a complete imposition of central authority on society absolutely free of any societal norms or influence, thus disregarding the critical contribution of socio-legal studies to Ottoman history. Ruth A. Miller, Legislating Authority: Sin and Crime in the Ottoman Empire and Turkey (London: Routledge Press, 2005), 1–2.
4.For a detailed discussion of Ottoman modernity as it relates to criminal justice, see Schull, Prisons in the Late Ottoman Empire, 5–6; idem, “Comparative Criminal Justice in the Era of Modernity: A Template for Inquiry and the Ottoman Empire as Case Study,” Turkish Studies 15 (2014): 621–37.
5.The 1839 Gülhane Hatt-ı Hümayun called for, “guarantees to all Ottoman subjects of perfect security for life, honor, and property; a regular system of assessing taxation; and an equally regular system for the conscription of requisite troops and the duration of their service.” See J.C. Hurewitz, The Middle East and North Africa in World Politics: A Documentary Record, vol. 1: European Expansion, 1535–1914 (New Haven: Yale University Press, 1975), 268–70. This decree combined with the Islahat Fermanı (discussed below) were the backbone of Ottoman reform programs during the Tanzimat (restructuring and reform). These decrees declared that all Ottoman subjects, regardless of religious affiliation, ethnicity, or socio-economic status, were equal before the law.
6.Peters defines hadd crimes as “offenses with fixed, mandatory punishments based upon the Koran or the Sunna . . . that include theft, banditry, unlawful sexual intercourse, an unfounded accusation of unlawful sexual intercourse, the drinking of alcohol, and apostasy” (Rudolph Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-First Century (Cambridge: Cambridge University Press, 2006), 53). Qisas and diyet are closely related punishments sanctioned by Islamic law that constitute “retaliatory death or mutilation” and “monetary compensation for death and bodily harm in lieu of qisas” respectively (Ibid., 49–53). Siyaset crimes deal with issues of social order and state preservation and their punishments are defined as “discretionary justice exercised by the head of state and executive officials, not restricted by the rules of the Shari’a.” They are, however, sanctioned and legitimated by Islamic law, which gives authority to a ruler to preserve social order and enforce justice all closely linked with the Circle of Justice ruling philosophy. Ta’zir are “discretionary punishments” meted out by the Islamic court judge 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 Sharia punishments. Both siyaset and ta’zir consisted of corporal punishments, such as flogging, amputation, fines, incarceration, and in the case of siyaset, exile and the death penalty (Ibid., 196 and 127–33).
7.See John A. Strachey Bucknill and Haig Apisoghom Utidjian, The Imperial Ottoman Penal Code: A Translation from the Turkish Text (London: Oxford University Press, 1913), xii-xiii; Peters, Crime and Punishment in Islamic Law, 127–33.
8.Peters, Crime and Punishment in Islamic Law, 71–75; Darling, A History of Social Justice, 2–12.
9.Miller, Legislating Authority, 26–31.
10.Peters, Crime and Punishment, 127–33; Gabriel Baer, “The Transition from Traditional to Western Criminal Law in Turkey and Egypt,” Studia Islamica 45 (1977): 143–44.
11.Peters, Crime and Punishment, 127–33; Bucknill and Utidjian, The Ottoman Imperial Criminal Code.
12.Hurewitz, The Middle East and North Africa, 315–18.
13.For a brief, but useful discussion of the source and significance of the initial 1858 Imperial Ottoman Criminal Code, see Baer, “The Transition from Traditional to Western Criminal Law,” 139–58; Buckhill and Utidjian, The Imperial Ottoman Penal Code, ix-xvi.
14.Günihal Bozkurt, “The Reception of Western European Law in Turkey (From the Tanzimat to the Turkish Republic, 1839–1939),” Der Islam 75 (1998): 283–95.
15.Buckhill and Utidjian, The Imperial Ottoman Penal Code, 1.
16.Baer, “The Transition from Traditional to Western Criminal Law,” 144–45.
17.Buckhill and Utidjian, The Imperial Ottoman Penal Code, 124–27.
18.Adopted as the empire’s civil code in 1877, the Mecelle represented the first systematic attempt to codify and modernize Islamic law (Sharia). It was prepared and written from 1869–76 by a commission under the direction of Ahmet Cevdet Pasha and consists of sixteen volumes containing 1,851 articles. See C.R. Tyser, D.G. Demetriades, and Ismail Haqqi Efendi, The Mejelle: Being an English Translation of Majallah El-Ahkam-i-Adliya and a Complete Code on Islamic Civil Law (Kuala Lumpur: The Other Press, 2001).
19.Avi Rubin, Ottoman Nizamiye Courts: Law and Modernity (New York: Palgrave Macmillan, 2011), 1–54; Peters, Crime and Punishment, 131.
20.Rubin, Ottoman Nizamiye Courts, 1–54.
21.Bucknill and Utidjian, The Imperial Ottoman Penal Code, 1–36.
22.Ibid., 37–123.
23.Ibid., 124–98.
24.Ibid., 199–208.
25.Ibid., xiv.
26.Ibid., xiv. For a comprehensive list of all the changes made to the IOPC by the CUP, see Schull, Prisons in the Late Ottoman Empire, 29–30.
27.For a comprehensive discussion of Ottoman prison reform in the nineteenth and twentieth centuries, see Schull, Prisons in the Late Ottoman Empire.
28.For a detailed discussion of the 1912 Ottoman prison survey, see Ibid., Chapter 3; “Conceptualizing Difference during the Second Constitutional Period: New Sources, Old Challenges” in Religion, Ethnicity and Contested Nationhood in the Former Ottoman Space, ed. Jorgen Nielson (Leiden: Brill, 2012), 63–87; idem, “Identity in the Ottoman Prison Surveys of 1912 and 1914,” International Journal of Middle East Studies 41:3 (2009): 365–67.
29.There is no clear English translation for the Turkish words cünha, kabahat ve cinayet. Cünha and kabahat are less serious crimes in comparison with cinayet. Cünha crimes carry a variety of punishments including incarceration from one week to three years, fines, dismissal from office and discontinuance of salary, and even temporary banishment from three months to three years. A combination of these punishments may also be imposed as punishment for cünha crimes. Kabahat crimes are the least severe and carry a punishment of incarceration lasting between twenty-four hours to one week or a fine not exceeding one Turkish lira. Examples of kabahat crimes include violations of civil and state codes on sanitation. Cinayet crimes are roughly equivalent to felonies. Punishment consists of incarceration from three years to life imprisonment with hard labor, banishment, incarceration in a citadel, or execution. Bucknill and Utidjian, The Imperial Ottoman Penal Code, 5–7.
30.BOA, DHMBHPSM 8/3 doc. 13.
31.BOA, DHMBHPS 145/31.
32.BOA, DHMBHPSM 8/3 doc. 13.
33.BOA, DHMBHPS 145/31.
34.Bucknill and Utidjian, The Imperial Ottoman Penal Code, 86–92.
35.Ibid., 91.
36.Ibid., 91–92.
37.For a detailed discussion regarding tax revolts organized by the CUP from 1905–1907, see Aykut Kansu, The Revolution of 1908 in Turkey (Leiden: Brill, 1997), 29–72. For a detailed discussion of the laws passed by the CUP prohibiting public protest and strikes, see idem, Politics in Post-Revolutionary Turkey, 1908–1913 (Leiden: Brill, 2000).
38.For the total number of prisoners in the Ottoman Empire for 1911–12 organized according to severity of crime and those awaiting trial, see BOA, DHMBHPS 145/31.
39.For the complete 1911–12 prison statistics for Istanbul, Beirut, Baghdad, the Hicaz, and Canik, see BOA, DHMBHPSM 4/4, DHMBHPSM 5/9, DHMBHPSM 4/21, DHMBHPSM 3/36, and DHMBHPSM 5/1 respectively. The breakdown of the prison population in 1911–1912 for the provinces of Istanbul, Beirut, Baghdad, the Hicaz, and for the administrative district of Canik are as follows: Istanbul: 5,738, Beirut: 4,586, Baghdad: 2,528, The Hicaz: 460, Canik: 1,779.
40.Bucknill and Utidjian, The Imperial Ottoman Penal Code, 149–70.
41.Ibid., 149–50.
42.Regarding Islamic law and determining the age of accountability in the nineteenth and early twentieth-century Ottoman Empire, see Tyser, et. al., The Mejelle, Articles 985–987; Bucknill and Utidjian, The Imperial Ottoman Penal Code, 26–30; Peters, Crime and Punishment, 20–1. For a detailed discussion of the transformation of definitions of juvenile criminal culpability, delinquency, incarceration, and rehabilitation, see Schull, Prisons in the Late Ottoman Empire, Chapter 6.
43.Perhaps this was the case because women tended to have very little money of their own, particularly if they were married and not part of the labor force. Bucknill and Utidjian, The Imperial Ottoman Penal Code, 152–56.
44.The references for 1912 Ottoman Prison Survey statistics are Istanbul: BOA, DHMBHPSM 4/4; Baghdad: BOA, DHMBHPSM 4/21; Bitlis: BOA, DHMBHPS 145/8 and 145/78, Mosul: BOA, DHMBHPS 145/2, 146/69, and 146/70; Canik: BOA, DHMBHPSM 5/1; Kastamonu: BOA, DHMBHPSM 145/56 and 53/34; the Hicaz: BOA, DHMBHPSM 3/36, Beirut: BOA, DHMBHPSM 5/9; Mamüretülaziz: BOA, DHMBHPSM 12/70, 14/65, and DHMBHPS 145/26; Edirne: BOA, DHMBHPSM 4/1; Yanya: BOA, DHMBHPSM 4/20; and Manastır: BOA, DHMBHPSM 6/27.
45.Bucknill and Utidjian, The Imperial Ottoman Penal Code, 159–62. However, as Avi Rubin has clearly demonstrated, criminal and Islamic courts were often presided over by an Islamic court judge (kadı), thus preserving the legitimizing link of Islamic law to state reforms and administration. See Rubin, Ottoman Nizamiye Courts.
46.BOA, DHMBHPSM 8/3 doc. 13.
47.See Schull, Prisons in the late Ottoman Empire, 176–79.
48.Bucknill and Utidjian, The Imperial Ottoman Penal Code, 164–66.
49.Ibid., 166.
50.Ibid., 167–70.
51.Feroz Ahmad, The Young Turks: The Committee of Union and Progress in Turkish Politics, 1908–1914 (Oxford: The Clarendon Press, 1969), 92–120; Erik J. Zürcher, Turkey: a Modern History (London: I.B. Tauris, 2001), 112–14.
52.BOA, DHMBHPSM 8/3 doc. 13.
53.BOA, DHMBHPSM 5/1, 4/4, 5/9, 4/21, and 3/36.
54.Bucknill and Utidjian, The Imperial Ottoman Penal Code, 165–69.
55.Ibid., 171–90.
56.Ibid., 174.
57.Ibid., 175–76.
58.Ibid., 177–79.
59.Ibid., 180–83.
60.BOA, DHMBHPSM 3/36, 4/4, 4/21, 5/1, and 5/9.
61.Niyazi Berkes, The Development of Secularism in Turkey (New York: Routledge, 1998), 161–72, 417, 467–73; Kemal Karpat, The Politicization of Islam (New York: Oxford University Press, 2001), 421–22; Peters, Crime and Punishment, 127–33.
62.Regarding CUP economic policies during the Second Constitutional Period see Zafer Toprak, “Milli İktisat” 1908–1918 (Ankara: Yurt Yayınları, 1982); idem, İttihad-Terraki ve Cihan Harbi: Savaş Ekonomisi ve Türkiye’de Devletçilik, 1914–1918 (Istanbul: Homer Kitabevi, 2003); idem, Milli İktisat, Milli Burjuvazi (Istanbul: Tarih Vakfı Yurt Yayınları, 1995).
63.Bucknill and Utidjian, The Imperial Ottoman Penal Code, 124–45.
64.Ibid., 127–28.
65.Ibid., 128–29.
66.Ibid., 126–27.
67.Ibid., 129.
68.Ibid., 131.
69.Ibid., 136–37 and 141–45.
70.BOA, DHMBHPSM 5/1, 4/4, 5/9, 4/21, and 3/36.