The Meanings of Crime and Cleaning in the Late Ottoman World: A Brief Investigation of the Imperial Ottoman Penal Code (1858)

The Ottoman Empire’s project of implementing reforms was a significant transformation after facing internal and external hardships in the nineteenth century. Particularly, the Edict of Gülhane in 1839 brought about new reforms called the Tanzimat. The Edict promised to secure justice, honor, and property and to promulgate regulations and laws in a variety of areas. The establishment of a new criminal justice system was one of them as a part of legal novelties. Leading jurists of the Tanzimat promulgated two penal codes in 1840 and 1851 in this direction. However, they were not comprehensive in many aspects like the lack of categorization for offenses as Schull argues.[1] For this reason, Meclis-i Tanzimat (the Assembly of Tanzimat)’s jurists legislated the Imperial Ottoman Penal Code (Ceza Kanunnâme-i Hümâyunu) in 1858. This code introduced new terms like Kabahat for crimes and identified them in categories. Apart from this, it carried the state’s goals of controlling and disciplining people such as prohibiting pollution before the law. Influenced by the French Penal Code, the IOPC standardized criminal procedures within a certain degree. Briefly, the IOPC is a prominent text because of reforming legislation and redefining its terms, displaying the state’s growing centralized power in bringing penalties for control and discipline, and standardizing criminal matters with innovations. 

I-Reforming Legislation and Redefining Legal Terms

              In the first place, The IOPC coined new terms in the criminal law by redefining words. The code consisted of 264 articles with four sections as the part of “Preliminary” and three chapters. This code justified its exercise by claiming to secure public order (asayish) in the preface and these chapters divided crimes into three categories as against the state, against individuals, and minor offences in order.[2] By doing this, the code brought diverse terms for crimes and redefined them. To illustrate, Cünha was a modified version of Persian sin (günah) in Arabic. However, the IOPC shifted its meaning as “the lesser offenses than serious crimes (cinayet)”. Besides, Kabahat signified “bad behaviors” in Turkish, but the new code used Kabahat to define the term “contravention” (misdemeanor) in French.[3] In this case, the state contextualized these activities as detrimental crimes to the public order in a penal code for the first time since “Islamic law is silent on most crimes associated with these categories.”[4] Furthermore, the code not only intervened in the meaning of words but also expanded the state’s control in offences like Kabahat. Local officials had autonomy in lesser offences because of Sharia’s silence and this strengthened their power. To illustrate, an officer in a Balkan village found a stray donkey that damaged movable properties and punished its owner by ordering him to carry his donkey’s burden in 1857.[5] However, the state banned letting such animals harm movable properties with “a fine of from ten beshlihks to fifteen beshliks” in Art. 259 of the IOPC. That is, “local official’s discretionary penal authority was abrogated” [6] as Schull underlines. In this way, the state centralized the criminal system and its mechanism.

II-Disciplining Several Communities or Displaying the State’s Growing Centralized Power

Other than controlling, the IOPC also aimed to discipline the Ottoman society with its measures such as officially prohibiting pollution. Although Islamic law accepted pollution as sin and suggested cleanliness, it was not a crime and did not require disciplining polluters. In some cases, Sheikh ul-Islam and qadis issued fatwas to combat pollution with different measures from advice to bastinado. The City Order Commission under Istanbul Municipality stated the necessity for beautification (tezyin), cleaning, widening (tevessü), and street lightening (tenvir-i esvak) in its declaration in 1855, this text did not offer any disciplining measure for polluters.[7] The IOPC formally imposed fines and imprisonment against pollution for the first time. To exemplify, Article 254 declared the cleaning (tanzif) and street lightening and added that “persons who throw into the streets refuse or other things causing offensive smells” are punished with from one to five silver beshliks. Street lightning was significant since its expansion “paralleled the development of centralized urban policing” for surveillance.[8] Article 258 ordered that if someone throws dirt upon a man, this person shall be imprisoned from 24 hours to 5 days. Mazak states that, Beyoğlu Municipality drafted a report for the police in 1859. Six articles of the text referenced the IOPC and warned that if people “do not obey, they will be surrendered to the police officers”.[9] As a state apparatus, prisons served for disciplining if fines did not work in this respect.

III-Standardizing Criminal Issues with Innovations under the French Influence

Additionally, the IOPC standardized criminal procedure particularly under the influence of the French Penal Code of 1810. Heinzelmann contends that the code is “a considerably condensed adaptation of the French penal code” despite many differences like rhetoric patterns and considering Islamic laws.[10] The standardization of legal measures by the French Penal Code facilitated the organization of criminal procedures in fixed and constant punishments.[11] This advantage of the code affected countries including the Ottoman State. For instance, the French code criminalizes minor offences like pollution within a standardized degree. “Those who shall neglect to clean the streets…shall be punished from one to five francs” in Article 475 and the punishment for noise pollution was standardized between 11 and 15 francs and 5-days imprisonment in Articles 479-480.[12] The Ottoman State did not standardize the punishments for misdemeanors like pollution if there was no mention in Islamic Law until the IOPC. The code, similar to the French code, writes in Art 260 that “those who make a noise or uproar in a manner to take away the comfort of the people” are standardized between 10 and 15 beshliks with a 3-7 days imprisonment. As stated above, the standard penalty for polluting roads was standardized between one to five beshliks in Article 254. It would be argued that the sultan was active in enforcing standardized measures. To exemplify, Abdülaziz issued an irade in 1862 and referenced Articles 254 and 256 in warning that “wastes and garbage should not be left on the street and should be immediately removed … If people are indifference to this, those should be punished … by the code. The execution of the determined penalty should not be doubted.”[13] Hence, the code’s this aspect redefined the relations between the ruler and criminals.

Conclusion

To sum up, the IOPC was a multi-faceted part of the transforming criminal system in various aspects.[14] In this context, the articles on cleanliness would demonstrate these multi-dimensional properties of the IOPC. Initially, the members of the Assembly of Tanzimat such as Ahmet Cevdet Paşa redefined several terms for the criminal literature and categorized the degrees of offences. Moreover, controlling and disciplining bodies played a crucial role as the state’s purpose to centralize the criminal system with punishments. The standardization of criminal regulations affected by the French model was another novelty of the code.

[1] Kent Schull, Prisons in the Late Ottoman Empire: Microcosms of Modernity (Edinburgh: Edinburgh University Press, 2014), 32.

[2] Tobias Heinzelmann, “The Ruler’s Monologue: The Rhetoric of the Ottoman Penal Code of 1858,” Die Welt Des Islams 54 (2014): 310, https://www.jstor.org/stable/24268892.

[3] Gabriel Baer, “The Transition from Traditional to Western Criminal Law in Turkey and Egypt” Studia Islamica 45 (1977): 146.

[4] Schull, Prisons, 30.

[5] Mehmet Mazak and Fatih Güldal, Osmanlı’dan Günümüze Temizlik Tarihi [The History of Cleanliness from the Ottoman to Nowadays] (Istanbul: Yeditepe Press, 2011), 76.

[6] Ibid., 30.

[7] Mazak and Güldal, Temizlik Tarihi, 55.

[8] Ayner Wishnitzer, “Eyes in the Dark: Nightlife and Visual Regimes in Late Ottoman Istanbul”, Comparative Studies of SAM 37 (2017): 246. https://muse.jhu.edu/article/667608

[9] Ibid., 63.

[10] Heinzelmann, “The Ruler’s Monologue”, 309.

[11] Vesley Gennings , “The Code Penal of 1810” in The Encyclopedia of Crime and Punishment (West Sussex: Wiley and Blackwell, 2016), 241.

[12] H. Butterworth and Baldwin, Cradock, and Joy, The Penal Code of France with a Preliminary Dissertation and Notes, (London: 1819), 103.

[13] Mazak and Güldal, Temizlik Tarihi, 75.

[14] Kübra Nugay and Abdullah Kahraman, “The Transformation of Ottoman Criminal Law in the 19th Century: The Example of Crime of Complicity”, ULUM 2/1 (2019): 103.