• Category Category: M
  • View View: 1144
Print Friendly, PDF & Email

MECELLE. The Arabic term majallah originally meant a book containing wisdom or, by extension, any kind of writing; its Turkish derivative mecelle refers more specifically to the civil code in force in the Ottoman Empire from AH 1285/1869 CE onward. The Mecelle-1 Ahkam-i Adliye, to cite the work’s full title, covers contracts, torts, and some principles of civil procedure.

The Mecelle was important for numerous reasons. Derived from Hanafi jurisprudence, the code incorporated not always the opinions of the most prominent Hanafi jurists, but rather whatever Hanafi jurists’ opinions seemed most suited to the times. Although the justificatory memorandum (esbab-i mucibe mazbatast) submitted to the Ottoman Council of Ministers said that the authors never drew from non-Hanafi jurists, some of the opinions incorporated did in fact originate in nonHanafi sources. This kind of eclecticism also characterized later efforts at reform of shari`ah law and in itself provided added impetus for codification. The Mecelle represented the first attempt by any Islamic state to codify part of the shari`ah. Moreover, since the Mecelle was applied in the Ottoman Empire’s secular (nizami) as well as shari`ah courts, the code, as state law (kanun; Ar., qanun) made provisions of the shari `ah applicable to the empire’s non-Muslim subjects as well as to the Muslims whom the code’s shar’i content would have bound in any case. Most significantly, the Mecelle is a case of successful resistance, unique in the late Ottoman Empire and Turkish republic, to the tendency to adopt European law.

The decision to draft the Mecelle emerged from a dispute over whether the Ottomans should adopt the French civil code. One of the greatest Islamic scholars of the period as well as a great historian and statesman, Ahmed Cevdet Pa§a (1822-1895) championed the opposing view that a compendium of Hanafi jurisprudence should be adopted instead. The Council of Ministers entrusted the drafting of such a work to a commission and appointed Cevdet Pasa to chair it. The commission completed the sixteen books of the Mecelle, and they were placed in force by successive decrees of the sultan, dating from 1286/1870 to 1293/1876. The Mecelle was not solely the work of Ahmed Cevdet Pasa, but it bears his stamp more than anyone else’s; the commission’s poor results when he was called away proved that the successful outcome of the project depended on him.

The Mecelle opens with two sections that define fikh (Ar., fiqh; Islamic jurisprudence) and its components and state its basic principles. Following these, the sixteen books successively deal-citing the subjects in Arabic rather than in their Ottomanized forms-with sales (buyu`); hire and lease (ijarat); guaranty (kafdlah); transfer of debts (hawalah); pledge (rahn); deposit (amdndt); gift (hibah); usurpation and property damage (ghasb [wa-itlaf]); guardianship, duress, and preemption (hajr, ikrdh, wa-shuf ah); joint ownership and partnership (shirket); agency (wakalah); compromise and remission of debt (sulh wa-ibra); acknowledgment (iqrdr); lawsuits (da’wa); evidence and oaths (bayyinat [wa-tahlif]); courts and judgeship (qada’).

The drafting commission intended to continue by codifying the law on family and inheritance; however, Sultan Abdfilhamid II (1876-1909) prevented it from doing so. Not until enactment of the Ottoman Law of Family Rights (Hukuk-1 Aile Kararnamesi, 8 Muharrem 1336/24 October 1917) would these topics be codified. The Law of Family Rights again took an eclectic approach to shari`ah sources; in this law, moreover, applicability to non-Muslims was achieved by incorporating provisions of the religious laws of the various communities.

Despite its bases in Islamic jurisprudence, the Mecelle differs from traditional shari`ah law in several respects. These include its codification, its official promulgation, and the admission-a consequence of the intended scope of application-of non-Muslims as witnesses. The Mecelle also differs from European civil codes in omitting noncontractual obligations, types of real property other than freehold (milk), family law, and inheritance, as well as in including some procedural provisions from the shari`ah.

According to Fazlur Rahman, the Mecelle stands as lasting proof that “a system of law can very well be built” on the shara`ah-in effect, that Islamic law can be codified-and thus that “the efforts of some modern Muslim states to replace the shari`ah with purely secular law are mainly the result of intellectual defeatism” (1982, p. 29). Precisely because the route of legal secularization has been widely taken, the importance of the Mecelle can also be measured by its durability in practice. In the secular (nizami) though not the shari`ah courts, the Ottoman Empire in 1879 did replace the procedural provisions of the Mecelle with a Code of Civil Procedure based on French law. Otherwise the Mecelle remained in force until the Turkish republic adopted the Swiss Civil Code in 1926. In some successor states, it survived much longer. The Mecelle remained in force in Bosnia-Herzegovina after the Austrian occupation of 1878, in Albania until 1928, and in Cyprus at least into the 1960s. Though never in force in Egypt, the Mecelle was not replaced by new civil codes until 1932 in Lebanon, 1949 in Syria, 1953 in Iraq (where many elements of it survived in the new civil code of that year), and 1977 in Jordan. It remained basic to the civil law of Israel, too, until 1984.

Not surprisingly, considering the scope of its application, the Mecelle gave rise to a number of commentaries and translations. Noted commentaries include those of Ali Haydar (1912) and Salim ibn Rustam Baz (18881889). Available translations include those into English by W. E. Grigsby (1895) and by Sir Charles Tyser et al. (1901), and one into French published by George Young in 1906.

[See also Law.]

BIBLIOGRAPHY

Ali Haydar. Durer ul-Hukkam: Serh Mecellet il-Ahkdm. 4 vols. 3d ed. Istanbul, 1330/1912.

Amin, S. H. Middle East Legal Systems. Glasgow, 1985.

Baz, Salim Rustam. Sharh al-Majallah. 2 vols. Beirut, 1888-1889. Berki, Ali Hikmet. Aciklamali Mecelle (Mecelle-i Ahkdm-i Adliye). Istanbul, 1982.

Grigsby, W. E., trans. The Medjelle. London, 1895.

Israel. “Repeal of Mejelle Law, 5744-1984.” In Laws of the State of Israel, vol. 38, p. 212. Tel Aviv, 1984.

Liebesny, Herbert J. The Law of the Near and Middle East: Readings, Cases, and Materials. Albany, N.Y., 1975.

Mardin, Ebiil’uld. “Mecelle.” In Islam Ansiklopedisi. Istanbul, 1940. Mardin, Ebul’ula. Medeni Hukuk Cephesinden Ahmed Cevdet Pasa. Istanbul, 1946.

Mecelle-i Akham-i Adliye. 2d printing. Istanbul, 1305/1887-1888. Onar, Siddik Sami. “Islam Hukuku ve Mecelle.” In Tanzimat’tan Cumhuriyet’e Turkiye Ansiklopedisi. Istanbul, 1985.

Rahman, Fazlur. Islam and Modernity: Transformation of an Intellectual Tradition. Chicago, 1982.

Schacht, Joseph. An Introduction to Islamic Law. Oxford, 1964. Tyser, Charles, et al. The Mejelle Translated. Nicosia, 1901. Young, George. Corps de droit Ottoman: Recueil des codes, lois, reglements, ordonnances et actes les plus importants du droit interieur, et d’etudes sur le droit coutumier de l’Empire Ottoman, vol. 6, pp. 169-446. Oxford, 1906.

CARTER VAUGHN FINDLEY

Azhar Niaz Article's Source: http://islamicus.org/mecelle/
Author:

  • writerPosted On: August 6, 2014
  • livePublished articles: 746

Subscribe to Blog via Email

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Translate »