An Introduction to Islamic Law by Wael B. Hallaq

judicial and financial matters, but their new organization and formal constitution were intended to mark a departure from the traditional, qadi -centered administration. Whereas the qadi had been the leading judicial and administrative officer in the pre-reform councils, he was now relegated to a secondary position, or at least to that of one among many others of equal importance. The new leaders were thegovernment employees, the administrators and those who were soon to become bureaucrats. It was these persons, together with the notables representing segments of the community, who were in charge of hearing the major suits brought before the qadi ’s court. Whereas before the reform the “court assembly” assisting the qadi in legal matters consisted of the learned scholars (mainly mufti s), now they were non-Shari figures who represented the interests of the community in an official, state-determined capacity. These officials emerged, as before, from within the community, but it was now the central government, not the community and itsimmediate representatives, that decided how, when and under what conditions they should serve.
    However, aside from installing a modern system aimed at improving the method of tax collection, the most serious change that came in the wake of the Gülhane Decreewas the gradual rise of theNizamiyye courts, named after the so-calledNew Order. This latter administration, which produced new courts, new laws, a new judicial process and – by the end of the century – a new legal culture, operated at the nominal orders of thesultan who, for the first time in the history of the Empire (and of Islam as a whole), placed himself as well as his bureaucratic legislative council above the Sharia. His power to legislate the qanun s (government regulations), which had complemented and supplemented, but had never overridden the Sharia and its law, now became overarching and universal.
    The sultan’s reforms – in effect representing the political will of a Westernizing and secularizingIstanbul elite – also reflected the enormous European and Russian pressures on the Empire. For example, under these pressures a commercial Nizamiyye court was first established in Istanbul with a jurisdiction pertaining to disputes between and among Ottoman subjects and European nationals. Acriminal court, with the same jurisdiction between various nationals, was created in 1847. In these courts,foreign consuls and consular representatives of European states enjoyed the right to veto the decisions of the court against their respective nationals, thus in effect holding powers that entitled them to entirely neutralize court verdicts at will. (The severity of such intrusions can only be imagined if we were to assume that China had the right today to veto and neutralize the decisions of US courts in cases where Chinese nationals were convicted for criminal activity in the United States.)
    Under clearFrench influence, the first Westernizedcommercial code was promulgated in 1850. A secondpenal code was introduced the next year, defining, with more specific details, the jurisdictional boundaries between the Sharia courts and the new criminal courts. In 1854, theSupreme Council was transformed into theSupreme Council of the Tanzimat, one of whose first acts was the promulgation of a newcriminal code that showed the greatest dependence yet, this time on the Frenchpenal code of 1810. The new name of the Supreme Councilepitomized the worldview of the Ottoman modernizers who saw in their reforms a means to accomplish “order,” “regularity” and “law,” all of which stood in diametrical opposition to the steadily diminishing Sharia culture that was perceived as lacking on these counts. The Tanzimat (literally meaning “ordering”) constituted a regimenting practice, and reflected highly modern notions of discipline, law, inspection and incarceration. Indeed, these notions found expression not only in the evolving judicial