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Mecelle

By:
Carter Vaughn Findley
Source:
The Oxford Encyclopedia of the Islamic World What is This? Provides comprehensive scholarly coverage of the full geographical and historical extent of Islam

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 AH1285/1869 CE onward. The Mecelle-i Ahkâm-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 Ḥanafī jurisprudence, the code incorporated not always the opinions of the most prominent Ḥanafī jurists, but rather whatever Ḥanafī jurists’ opinions seemed most suited to the times. Although the justificatory memorandum (esbab-ı mucibe mazbatası) submitted to the Ottoman Council of Ministers said that the authors never drew from non-Ḥanafī jurists, some of the opinions incorporated did in fact originate in non-Ḥanafī sources. This kind of eclecticism also characterized later efforts at reform of sharīʿah law and in itself provided added impetus for codification. The Mecelle represented the first attempt by any Islamic state to codify part of the sharīʿah. Moreover, since the Mecelle was applied in the Ottoman Empire's secular (nizamî) as well as sharīʿah courts, the code, as state law (kānūn; Ar., qānūn), made provisions of the sharīʿah applicable to the empire's non-Muslim subjects as well as to the Muslims whom the code's sharīʿah 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 Paşa (1822–1895), championed the opposing view that a compendium of Ḥanafī jurisprudence should be adopted instead. The Council of Ministers entrusted the drafting of such a work to a commission and appointed Cevdet Paşa 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 AH1286/1870 CE to AH1293/1876 CE The Mecelle was not solely the work of Ahmed Cevdet Paşa, 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 (buyūʿ); hire and lease (ījārāt); guaranty (kafālah); transfer of debts (ḥawālah); pledge (rahn); deposit (amānāt); gift (hibah); usurpation and property damage (ghaṣb [wa-itlāf]); guardianship, duress, and preemption (ḥajr, ikrāh, wa-shuf   ʿah); joint ownership and partnership (shirket); agency (wakālah); compromise and remission of debt (ṣulḥ wa-ibrā); acknowledgment (iqrār); lawsuits (daʿwā); evidence and oaths (bayyināt [wa-taḥlīf]); courts and judgeship (qaḍāʿ).

The drafting commission intended to continue by codifying the law on family and inheritance; however, Sultan Abdülhamid II (1876–1909) prevented it from doing so. Not until enactment of the Ottoman Law of Family Rights (Hukuk-ı Aile Kararnamesi, 8 Muharram 1336/October 24, 1917) would these topics be codified. The Law of Family Rights again took an eclectic approach to sharīʿah 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 sharīʿah 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 sharīʿah.

According to Fazlur Rahman, the Mecelle stands as lasting proof that “a system of law can very well be built” on the sharīʿah—in effect, that Islamic law can be codified—and thus that “the efforts of some modern Muslim states to replace the sharīʿah with purely secular law are mainly the result of intellectual defeatism” (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 (nizamî) though not the sharīʿah 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 Salīm ibn Rustam Bāz (1888–1889). 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. Dürer ül-Hukkâm: Şerh Mecellet il-Ahkâm. 4 vols. 3d ed.Istanbul, 1330/1912.
  • Amin, S. H.Middle East Legal Systems. Glasgow, 1985.
  • Bāz, Salīm Rustam. Sharḥ al-Majallah. 2 vols. Beirut, 1888–1889.
  • Berki, Ali Hikmet. Açıklamalı Mecelle (Mecelle-i Ahkâm-ı Adliye). Istanbul, 1982.
  • Davison, Andrew. Secularism and Revivalism in Turkey: A Hermeneutic Reconsideration. New Haven, Conn., 1998.
  • Grigsby, W. E., trans.The Medjellè. London, 1895.
  • Haddad, Yvonne Yasbeck, and Barbara Freyer Stowasser, eds.Islamic Law and the Challenges of Modernity. Walnut Creek, Calif., 2004.
  • Israel. “Repeal of Mejelle Law, 5744–1984.” In Laws of the State of Israel, vol. 38, p. 212. Tel Aviv, 1984.
  • Karpat, Kemal H.The Politicization of Islam. Oxford, 2001.
  • Rahman, Fazlur. Islam and Modernity: Transformation of an Intellectual Tradition. Chicago, 1982.
  • Schacht, Joseph. An Introduction to Islamic Law. Oxford, 1964.
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