Comparative Analysis of the Aggregation of Offences under Ottoman Criminal Law during the Modernization Period and Current Turkish Positive Law: A Case Study of InsultMuhammed Emin Kızılay
Under western influence, the Ottoman Empire began the practice of accumulation of legislation in its judicial system. Thus, certain new concepts and technical issues, such as the aggregation of offences (ijtima), were coined in Ottoman legal jargon. This concept, which attributes more than one crime to an individual, has similar meaning to tadahul in Hanafi fiqh. However, there is a major difference between the two legal systems. Although the Ottoman judicial system generally tried to abide by Hanafi fiqh in its legislative activities during the Tanzimat period, it deviated from the fiqh system on some technical issues. To clearly consider this situation in practice, it is necessary to look at the court records of the period. Vakâyi-i Zabtiyye newspaper, which was in publication from 1286 to 1869, is an important source, as it contains court records of the period. In this study, the aggregation system in the Ottoman Criminal Code, dated 1274– 1858, which was in force at the time the newspaper was published, will be analysed. It will be compared with the case records under current Turkish positive law. The scope of the study is limited to the aggregation of offences through case records related to insult crime.
Türk Pozitif Hukukuyla Mukayeseli Olarak Modernleşme Dönemi Osmanlı Ceza Hukukunda İçtima: Hakaret Suçu ÖrneğiMuhammed Emin Kızılay
Yargı alanında Hanefî fıkhının uygulama alanı bulduğu Osmanlı Devleti, Batı etkisiyle birlikte bu alandaki birikimini kanunlaştırmaya başlamıştır. Böylece yeni birtakım kavramlar ve teknik konular da Osmanlı hukuk diline girmiştir. Bunlardan bir tanesi içtimadır. Birden fazla suçun tek bir kişide toplanmasını ifade eden bu terim, Hanefî fıkhındaki tedâhül kavramına yakın bir anlam ifade etmektedir. Fakat her iki hukuk sisteminin konuyu ele alışında farklılıklar vardır. Tanzimat Dönemi’nde yaşanan kanunlaştırma faaliyetlerinde genel olarak Hanefî fıkhına bağlı kalınmaya çalışılmışsa da içtima gibi bazı teknik konularda fıkhî birikim göz ardı edilmiştir. Bu durum dönemin yargı uygulamasında da görülmektedir. Döneme ait dava kayıtlarına ulaşmada ise 1286/1869 yılında toplumu bilgilendirerek örneklik teşkil etmesi için yayımlanan Vakâyi-i Zabtiyye gazetesi önemli bir kaynaktır. Çalışmada gazetenin yayımlandığı dönemde yürürlükte olan 1274/1858 tarihli Ceza Kanunnâmesi, dava kayıtları ve günümüz Türk pozitif hukuku üzerinden içtima sistemi karşılaştırmalı olarak ele alınacaktır. Konunun sınırlandırılması için de içtima sistemi sadece hakaret suçlarıyla ilgili dava kayıtları üzerinden incelenecektir.
The modernization of the Ottoman Empire resulted in several innovations in the fields of jurisdiction and law. During the Tanzimat period, one of the innovations included the accumulation of legislation, which was similar to the Hanafi fıqh system, for which casuistry was abided by in the Classical period. Even though it was similar to the Hanafi fıqh, there were certain points of digression. For instance, insult, which represents crimes against a person’s honour and dignity in Turkish positive law today, was also part of the first Penal Code (1256–1840 Criminal Code), which was enacted during the Tanzimat period. It moved from the fact that shariah aims to protect a person’s dignity and honour and it imposes various penal sanctions on those who commit these offences. In the Kânûn-i Cedîd dated 1267-1851, the content about the offence of insult was similar to the previous law; however, this law is a text where fiqh terms were used more frequently, and it was relatively similar to the Hanafi fıqh system. In the Penal Code dated 1274/1858, offences of insult were tailored according to the French Penal Code, and the role of fiqh in preparing this law was to inspect whether the articles in the law were in accordance with shariah or not. Therefore, fiqh played a less decisive role in the legislative activities in which it was previously very influential. Moreover, the law texts, which are prepared using western ideals, do not offend against shariah. Thus, in relation to certain technical matters, some western practices were directly adopted as part of the system. For this reason, fiqh did not play a decisive role on these technical matters. An example is the term “aggregation (ijtima)” in Turkish positive law, which means the connecting and gathering of two or more crimes and punishments. Aggregation (ijtima) was adopted in the Turkish judicial system during the Tanzimat period, and although it was not a recognized term in legal texts, the system was used in court judgments. Within this framework, certain regulations were made in the 1879 Code of Criminal Procedures regarding the method to be followed in case of the aggregation of more than one offence against an individual. The Ottoman jurisprudence of the period discussed the matter at length by citing the practices all over the world. However, there were discussions regarding whether this system was a part of fiqh and whether it was in accordance with shariah or not. Such discussions only became apparent after one and a half century in contemporary Islamic Law studies. As a matter of fact, in these studies, theoretical comparisons of today’s law and fiqh in the Tanzimat period were made, during which the transition process from shariah to secular law was ignored. Tedahul was the term used to describe the provisions to be applied in cases where a person commits more than one offence. Despite their common traits, the viewpoints and fundamental philosophies of tedahul and the aggregation system are distinct. In relation to fiqh, the person whose dignity has been hurt is of central importance. Thus, when personal rights (huquq al-ibad) are harmed through more than one offence, the punishment to be given is a single one. This is because personal rights are considered weaker than public rights (huquq Allah) and are therefore in need of more protection. In the aggregation system of the Tanzimat period, when offences of same or different types were committed against a single person or multiple people, the light punishment stipulated in the law was considered an aggravating circumstance for the severe penalty. With the Code of Criminal Procedures of 1879, it was acknowledged that the most severe of the stipulated punishments would be meted out and the light one would already be included in the severe one. Nevertheless, in today’s Turkish positive law, unlike the Ottoman positive law, the offences are aggregated. In this system, rather than aggregating different penalties stipulated for each crime, the violation of multiple norms caused by one or more acts is considered a single crime. In this system, similar to fiqh, legal dignity affected by the offence is ignored, and many types of violations of norms are aggregated as much as possible. In this way, it can be understood that the suffering of the victim is ignored in favour of the criminal.