The Arrival of Civil Law Structures Under the Ottoman Empire

We discuss in the introduction the development of the judiciary in Iraq from the pre-Islamic to the Islamic state.

In this overview of the judicial system in Iraq, we are turning to more modern developments, and need to look more specifically at the impact of Iraq's time as part of the Ottoman Empire. There were large scale social and cultural impacts of Ottoman rule on Iraq, however in the context of the current discussion I am focusing on three general themes initiated by the Ottomans that significantly impacted the modern legal environment in Iraq. First, the Ottomans created a professional class of judges by establishing formal, objective requirements for people appointed as judges. Second, the Ottomans codified laws built from Sharia foundations and based on the Ottoman's exposure to French systems. Third, court structures and procedural rules evolved under the Ottomans into shapes recognizable to modern Iraqis as early as the beginning of the 20th century.

The Ottomans occupied Iraq from 1532 to 1918 when the British completed the takeover they began in Basrah in 1914. For political and administrative purposes, Iraq was divided into three primary wilayah, or provinces, Mosul, Baghdad, and Basrah, which included the historic areas of Sharazur to the east of the Tigris River and Al-Hassa on the west coast of the Persian Gulf. Ottoman administration in Iraq changed over the centuries to reflect the priorities of various rulers at different points. The early highly centralized rule of the Ottomans gave way to semi-autonomous structures by the seventeenth and eighteenth centuries, albeit with Ottomon governors. The Ottomons returned to direct central control over Iraqi provinces in the nineteenth century.

The Ottomans divided their administrative framework into three primary commissions:

1. The Academic Commission;

2. The Pen Commission; and

3. The Military Commission.

The Academic Commission addressed the needs of the Islamic religious institutions covering the principle religious men and religious (Sharia), including religious education, religious schools themselves, the affairs of religious courts, endowments, and so on. The Academic Commission was presided over by a Sheikh al Islam, or Chief Theologian, who chaired the Commission and was at the same time the prime authority for judges. The central Ottoman state appointed judges in occupied areas in an attempt to ensure a uniform application of justice and thereby provide security. The judiciary in the Ottomans state was Islamic oriented just as other institutions of the times. It also had unique and independent characteristics. As the tumultuous events pressured the Ottoman state, the framework for the judiciary was amended several times through decrees of the Sultans. Ultimately, the central authority responsible for the judiciary was divided into three branches:

1. The Roman judiciary;

2. The Antalya judiciary to which the judiciary of the Arab territories and the judiciary of Iranians were added; and

3. The Egyptian military judiciary.

The judges in the territories of what is now Europe were beholden to the judge within the Roman branch, the Antalya and Arab territory judges to the Antalya branch, and the Egyptian judges to the last branch. The title of "Judge of the Military" is equivalent to Chief Justice within the traditions of the Islamic judiciary, however the position also maintained a distinct responsibility for the religious affairs of the military. The Judge of the Military accompanied the Sultan and his army during their invasions, and would also perform as the second chairman of the Academic Commission in the Ottoman state and participate in the sessions of the Ottoman State Council. The Military Justice submitted applications of candidates for the post of judge for the Sultan's consideration until 1574 when the Sheikh of Islam took over this responsibility. After 1574 the Military Justice still appointed judges and teachers within his region of responsibility.

During most of the Ottoman rule, Iraq, with its three wilayahs, knew only one type of court. All cases were heard by religious courts that based their judgments on Sharia law and related religious edicts. The Sultan in Istanbul, which remained the capital, appointed judges to these courts by a decree called the Sharifiya Certificate; the Sultan was the only one who could dismiss a judge once they were appointed. A body of laws and regulations governing the judiciary began to grow under the Ottomans. The scope and depth of laws passed by the Ottomans demonstrate the investment in courts and judges during the period. In a brief span of time, the following laws were published:

• Regulations on selecting a judge issued on 11.4.1329

• Judges Law issued on 13.12.1329 and its amendment

• The Characteristics of Legal Arbitrators and Judges issued on 17.5.1320

• The Characteristics of Legal Arbitrators issued on 17.5.1320

In particular, the laws created standard requirements for candidates for the post of a judge, a major step forward in creating an objective professional class. For example, the regulations established the following requirements for candidates:

• Must be at least 25 years of age;

• Candidate must not be covered by any other legal provision that bars him from taking up the post of a judge;

• Candidate must not have been sentenced for more than a week for an ordinary crime;

• Candidate must satisfy the terms stipulated in Articles 1729 and 1994 of the Mecelle, discussed in more detail below, which state:

1- Person must show sound judgment, be a model of rectitude, honesty, and religion. A minor, an idiot, a blind, or a deaf person shall not be a member of the judiciary.

2- Person must have qualifications from a law school or passed examinations in the subjects taught at such a school.

On meeting these requirements, he would be appointed a judge after the issuance of a Sharifiya Certificate pursuant to provisions of Article 18 of the Ottomans Fundamental Law.

By the start of the 19th Century, judges carried out the hearings and handed out judgments according to procedures recognizable to practitioners using the current civil and penal procedures in Iraq. A single type of court still heard all cases, including family, business and Sharia cases, until 1856 when Sultan Abdul Majeed issued an Order that reformed the Ottoman government structure and adopted some Western laws. The reforms of 1856 were expanded in 1880 under the reign of Sultan Abdul Hameed the Second, and the wilayahs of Iraq saw formal courts established for the first time. These new courts primarily addressed criminal cases and cases related to the ownership of land.

The additional courts in Iraq were established in parallel with administrative units in place at the time. From smallest unit to largest, the courts started with the village, the Nahiya, the Kadaah, and then the Liwa at the provincial level. In order for the ordinary citizen to file a lawsuit easily, courts called Al-Sulih, Reconciliation Offices, were set up in Nahiyas and Kadaahs to resolve disputes. They were run by members of the village council and village chieftain's council. The jurisdiction of these courts covered members of the village, or Al-Nahiya. The Al-Sulih, or Reconciliation, Law of 1913 established accessible courts in every Nahiya center that could be moved to subordinate villages as the need arose. These mobile courts were intended to create accessible access to state justice throughout rural Iraq nearly a century ago. As a matter of practice, Al-Sulih were set up only in some important Nahiya centers staffed with a judge assisted by a certain number of officials who were authorized to hear cases when the judge was absent.

The Ottomans established First Instance Courts consisting of a presiding judge and two members in Kadaa and province centers. These courts carried out the task of Al-Sulih as well as hearing cases and investigating crimes committed in the geographic areas. After completing the investigation the First Instance Court referred them to high criminal courts. The First Instance Court in Baghdad enjoyed special importance in view of the importance of Baghdad among other Iraqi cities. This court consisted of two separate commissions: one for civil lawsuits and another for business cases.

In addition to Personal Status Courts, Al-Sulih Courts and First Instance Courts, the Ottomans established Courts of Appeal in the Kadaa centers. A Court of Appeal was made up of a Chief Justice and four other judges. Its function was to look into appeals against judgments in civil and business cases from the Courts of First Instance within the wilayah. Finally, a Court of Cassation headquartered in Istanbul would monitor the judgments passed by courts throughout the Ottoman Empire.

In another trend, the new courts had new laws to apply, including some that Ottoman legislators adopted from the West such as the Ottoman Penal Code. Most of the new provisions were taken from French legislation, so we find French law entering the Iraq wilayahs in the late 19th Century via the Ottomans.

In line with trends noted by the Ottoman leadership, laws were increasingly codified in the 19th and early 20th centuries. A commission established by the Ottomans produced the Mecelle, a sixteen volume work completed between 1869 and 1876. Since the foundation of the laws being reviewed and codified were primarily based on Sharia, the Mecelle was the first effort to codify elements of Islamic laws by harmonizing interpretations and clarifying elements. Family law issues remained with the religious authorities, however the Mecelle covered the gamut of civil law starting with the "Book on Sales" and ending with the "Book on the Judiciary". The Mecelle is arranged in books and parts according to commonly known subjects in ordinary jurisprudence. The judgments are given in 1851 articles arranged serially and in a similar manner to that used in modern laws so that they can be easily referred to and accessed.

The last update to the Mecelle was published in in the eighth month of the Islamic calendar, or Sha'aban, 1293 A.H. / 1882 A.D. The codification is a milestone in that it marks the first point at which the personal status of followers of all religions and faiths could be adjudicated by the courts using the same laws and guidance regardless of the faith of the claimants. The Mecelle is therefore the first collection of Islamic jurisprudence, de facto laws, and regulations in the civil domain.

I would like to reiterate that the movement towards codification of the civil law in Iraq, in the present sense of creating a universal understanding of the law that is applied equally to any and all claimants, started in the late Ottomans era with the publication of the Mecelle. Although influenced by processes and systems in Europe at the time, the Mecelle is nonetheless a product of the centuries of Islamic jurisprudence and thought that grew from the application of Sharia law.

The Mecelle became a general civil law throughout the Ottoman Empire. It included provisions on civil and commercial matters still central to business today, such as sales, leases, special recorded obligations similar to the common law concept of recognizance, money transfers, mortgages, damage awards, law of companies, and so on. These provisions were of course derived largely from the jurisprudence in the Hanafi branch of Islam since this was the official faith of the Ottoman state. Other faiths were not taken into consideration because the Collection was issued on the Sultan's order. Where the Mecelle was silent on an issue, judges could resort to Islamic jurisprudence. The Mecelle remained in force in former Ottoman territories until well into the 20th century when countries, newly independent or under new authority, issued updated codes.

Ottoman leadership developed the Mecelle and other reforms as part of a campaign to modernize the state in order to improve competitiveness with European countries in the field of communications, trade, and industrial relations. Europe's rapid and far-reaching progress in trade and technical areas strongly influenced top Ottoman officials. The officials reacted pragmatically by searching the foreign systems for ideas that would strengthen the Ottoman state. For example, the officials adopted the idea of generating a real property record within the government for connecting real estate transactions, which modernized real estate transactions throughout the empire in the span of a few decades.

The exposure to the systems stoking growth in Europe also highlighted another reason for the issuance of the Mecelle from a political and administrative point of view: efficiency. Islamic jurisprudence had grown very sophisticated, but by its nature it did not offer clear guidance to citizens trying to live and prosper in the territories. The provisions of Islamic jurisprudence were distributed in books from Islamic scholars in the form of fiqh that illustrated certain principles as applied to a variety of contexts. Since the scholars were not within a hierarchical structure, each case may have any number of contrary opinions that could be applied by judges depending on their interpretation of provisions. Consequently, judges grew overwhelmed with the fatwas (edicts), interpretations and statements issued by religious experts from a range of perspectives, and justice itself became a slow and unreliable process. Previously, the Ottoman state had passed a number of laws. For example, Sultan Suleiman the Magnificent directed the drafting of a Law Nama that included clauses on discretionary penalties, land rights, definitions of state land and revenues, and military and administrative matters. It also directed that a register of sentences passed by personal status courts be kept.

The Judiciary & Courts During the British Occupation

Britain captured Basrah in late 1914 as an early part of its campaign against the Ottoman Empire in WWI. Instead of keeping the laws and judicial institutions of the Ottoman era intact, as required by international norms at that time, the British military administration allowed, or failed to prevent while their attention was diverted to military concerns, the existing court structure to collapse when the Turkish administrators fled. Ad hoc military and civilian orders were used until the British issued a more substantial body of law called the Iraqi Occupied Territories Code (Iraqi Code), derived from the laws Britain established previously in India and some Turkish law. The Iraqi Code was eventually applied throughout the areas of Iraq controlled by Britain, starting with Basrah, Al-Emaraa and Nassiriya. These laws were only applied in larger towns. In villages, the British military administration applied Tribal Criminal and Civil Disputes Regulations drawn up by the British Governor Henry Dewes based in large part on Indian Border Crimes Regulation. As most of the trained judges left with the Turks and remaining court staff had been trained on laws and systems in Turkish, the new British efforts in Arabic and English were primarily administered by British military and, eventually, civilian political officers.