Judicial Review in the Ottoman Legal System (the Classical period)

Abstract

This article discusses Ottoman methods of review in regard to decisions by judicial courts and the Ottoman legal institution in the interval between the founding of the state and the proclamation of the Era of Reforms, or Tanzimat, in 1839, which in terms of the legal system is known as the Classical era. No truly systematic method for the review of judgments in Ottoman jurisprudence was in existence in the Classical period. The most universally applied methods of appeal and review, which arose in Europe for historical and political reasons that remained outside the Islamic experience, consequently had no place in the Islamic-based legal system of the Ottomans. Nonetheless, it should not be concluded that for this reason no mechanism existed for the review of court decisions that might have failed to conform to Islamic legal precepts. Precautionary measures were in place to forestall the occurrence of irregularities in court decisions. The first of these were the traditions of issuing fetwas, or invited rulings on legal points by those knowledgeable in law, and şuhüdü'l-hal, or the presence of observer-witnesses to the court proceedings. Furthermore, the sultan himself always retained the power of authority to review court decisions by reason of the influence of Islamic tradition, and this authority was applied within the framework of the Imperial Council of State, which is regarded as a developed model of an Islamic body of juridical review ( divan-ı mezalim). Whether on the petition of the interested parties or on the personal request of a judge or on its own initiative, the Imperial Council of State could review court decisions and when irregularities occurred either annul the decision, transfer the case to another court for retrial, or, in situations deemed of consequence, the members of the council themselves would handle the review of the case. Finally, as in all sovereignties, it was also possible to direct a petition to the sultan personally. Apart from these mechanisms, it was, according to Islamic law, impossible to apply to the court of another judicial authority unless a daim had been presented that the relevant decision was contrary to the law. Since the review of court decisions in the Imperial Council of State and in the subordinate councils was in effect more often manifested as control over the judge who had made the decision, these offices represented both a court of appeals and-perhaps even more commonly-an administrative court.