The Legitimacy Paradigm of the Ottoman Commercial Code: ʿUlamāʾ and Interestİlknur Yaşar Bilicioğlu
One of the critical points in Ottoman modernization involved the Commercial Code of Berriye of 1850, because this code formed the first of the texts the authorized board adopted as an exemplary source of foreign law and indigenized within the context of its own terms and needs. The number of independent studies on the Commercial Code is not high. In most of them, the sharʿī ground of the Law was not sufficiently revealed, and it was claimed that the ʿulamāʾ were dissidents because of the acceptance of the law as the product of external pressure. The articles containing interest have been used as one of the grounds for the argument of opposition to the ʿulamāʾ without adequate examination. However, the ʿulamāʾ always existed at a certain level in the assemblies that planned and implemented the Tanẓīmāt reforms. Commercial law is the key to the Western theory of interest in Ottoman law. This article will first refer to the role of the codification procedure in ensuring legislative compliance with the Sharīʿa and then evaluate the archival material regarding the enactment procedures of commercial law in the context of the ʿulamāʾ’s contributions. In addition, the article will connect the paradigm of legitimacy, which had taken on legal official language through the ʿulamāʾ’s contributions, with the legal commercial conditions of the period. Finally, the study will briefly touch upon the theoretical background of how the concepts of interest and guzishta occurred in commercial law despite the ban on ribā that had been applied in Ottoman law as one of the basic principles of Sharīʿa law. The study will also determine how the legitimacy problem had been overcome in the context of the ʿulamāʾ’s contributions.
Osmanlı Ticaret Kanunu’nun Meşruiyet Paradigması: Ulema ve Faizİlknur Yaşar Bilicioğlu
Osmanlı modernleşme sürecinin kritik noktalarından biri 1850 tarihli Ticaret-i Berriye Kanunnamesi’dir. Zira Kanunname yetkili kurulun yabancı hukuka ait bir mevzuat örneğini kaynak kabul ederek kendi şart ve ihtiyaçları bağlamında yerlileştirdiği metinlerin ilkidir. Kanunname’ye dair müstakil araştırma sayısı fazla değildir. Çoğunda şer‘i zemini yeterince ortaya konmamış, dış baskı ürünü olduğu kabulünden hareketle ulema muhalefet pozisyonuna konumlandırılmış, faiz ve güzeşte unsurlu maddelerinin hukuki açılımı yeterince irdelenmemiş, fakat faizi destekleyen muhtevası ulema muhalefeti söyleminin dayanaklarından biri olarak kullanılmıştır. Hâlbuki Tanzimat reformlarını planlayan ve uygulayan meclislerin içerisinde ulema belirli düzeyde daima var olmuştur. Ticaret Kanunu Batılı faiz teorisinin Osmanlı hukukuna giriş anahtarıdır. Bu makale öncelikle yürürlük prosedürünün mevzuatın şer‘i ahkâma uygunluğunu sağlama rolüne atıfta bulunacak, ardından Ticaret Kanunu’nun yasalaşma prosedürüne ait arşiv malzemesini ulema katkısı bağlamında değerlendirecektir. Ayrıca ulema katkısıyla hukuki-resmî dile bürünen meşruiyet paradigması dönemin ticari-hukuki koşullarıyla irtibatlandıracaktır. Son olarak Osmanlı hukukunda şer‘i ahkâmın temel ilkelerinden biri olarak uygulanan riba yasağına rağmen Ticaret Kanunu’nda yer verilen faiz ve güzeşte kavramının teorik alt yapısına kısaca değinecek, meşruiyet sorununun nasıl aşıldığı ulema katkısı bağlamında tespit edilecektir.
This study examines the effectiveness of the ʿulamāʾ, who are often referred to as opponents of reform in the literature on the Tanẓīmāt, with regard to the enactment procedures of Ottoman commercial law in light of archival documents and focuses on how a legitimacy paradigm had been created despite some legal provisions being incompatible with the Sharīʿa. In the literature dealing with the Tanẓīmāt period, the Edict of Gülhane is often introduced as the beginning of the secularization program, with commercial law being used as an element proving this narrative as it was enacted as the first text to use a foreign law as its source. The Western authors, who took Turkey as a research subject from foreigners who had the opportunity to witness the period due to diplomatic missions and similar reasons, frequently criticized the ulamā and the institutions they held, as they interpreted the Ottoman state from their own religious-political perspectives. They produced writings that dictated their own vision of the world. This attitude has been very influential in the domestic literature on Tanẓīmāt. The claim that the ʿulamāʾ is against the commercial law is one of the important examples of this.
This article primarily touches upon the aims of the Edict of Gülhane, expressing them in sharʿī concepts and referring to the duties of the Majlis-i Vālā that overlapped with these aims. The study also emphasizes the high-ranking ʿulamāʾ positioned in the Supreme Council. Documents related to the Majlis-i Vālā show that the organizational structure of the period had not been structured with the desire to achieve a secular structure but that perhaps the legal-commercial conditions of the period may have had unforeseen consequences. The article examines the enactment procedure of commercial law based on the Majlis-i Vālā and makes a connection between the relevant archival documents and the commercial conditions of the period. The draft text was prepared by the Majlis-i Ziraʿat directly translating the French Commercial Code and selecting the parts that fit what was needed; the text was then subjected to a two-stage evaluation process in the Majlis-i Vālā, which was the most critical link in the indigenization procedure. Except for one exceptional issue, the Majlis-i Vālā found the draft text to fit its purpose and thus approved it with a unanimous decision. Afterward, the bill was renegotiated in the General Assembly with broad participation. As one of the natural members of the General Assembly, the Shaykh al-Islām was asked about the compatibility of the law with al-Sharīʿa [Islamic Law]. Shaykh al-Islām did not put forward any legitimacy barriers to enactment the commercial law, in a way giving implicit support to the law by referring to its irrelevance to the Sharīʿa. The reason for this support was hidden in the commercial conditions of the period: Commercial transactions in markets had become functional alongside the customs and culture Westerners had imposed. The efforts to impose consular courts even regarding disputes involving foreigners and local merchants in defiance of Ottomans’ legal independence resultantly left Muslims without any protector in trade; thus, they were deprived of the power of law to protect their rights and interests. In the texts constituting the enactment procedure of the law, these conditions are directly associated with the concept of necessity and the interests of the citizens. The state attempted to reorganize trade with institutions under its control, but in a way that persuaded foreigners to use these institutions. The Commercial Code was the most effective instrument for this purpose, and the ʿulamāʾ were aware of these conditions.
The commercial code evaluated the concepts of interest and guzishta in the context of the timely performance of contractual requirements and made the compensation to be paid in case of a protracted monetary debt to be binding using the concept of guzishta. Interestbearing contracts are approved in the same article of the law as a legitimate interest that can be demanded in return for a loan between the merchants as of the effective date of the law. Despite its provisions that cannot be reconciled with Sharīʿa law, the commercial code was adopted as the only solution that would pave the way for the goal of economic enrichment and commercial development, with the support of high-ranking ʿulamāʾ in the enactment procedure in extraordinary circumstances that turned into a problem of independence for the state, it is even possible to say a problem of survival. The commercial code stands out as one of the concrete examples of the need to subject the official documents that shed light on the Tanẓīmāt reforms to new readings in the context of the conditions of the period and their own motivations.