From Fiqh to Legislation: Structural Changes in Law at the End of the Ottoman Period

Author/s: Ömer Faruk Ocakoğlu

Year: 2019 Vol: 1 Number: 2

Abstract

The most distinctive characteristic related to the diversification in the legal systems may need to be sought in the lawmaking methods because the characteristics of a legal system related to lawmaking methods include their most basic structural elements. The source, relation to the source, and the set of structural problems related to how the system’s integrity and coherence are provided are in fact directly related to lawmaking methods. In particular, institutionalizing a legal system within the functional framework of providing social order and producing a legal tradition within this institutionalization are meaningful and important. Watson (year) mentioned four methods in this context: customs and practices, legal precedents, jurist opinions, and legislation. Tradition and commitment to it are the most fundamental attributes that distinguish these methods from each other. In this context, method of legislation has been shown as the weakest method in regard to having and remaining adhered to a tradition. Therefore, the legal changes experienced directly in modern continental European law, which is the most concrete example –although not exactly overlapping– of legislating other than fiqh that can be shown within precedent law included in these methods at the end of the Ottoman period, gains importance. This study attempts to address the basic dynamics of the process of legal change experienced at the end of the Ottoman period with motion from this basic distinction.

Keywords
Ottoman, fiqh, legal amendments, lawmaking, legislation