The proclamation of the Ottoman constitution of 1876 represented a turning point in the reform process that had been taking place in the Ottoman Empire since the mid-nineteenth century. Following several decades of reforms that had profoundly modified the administrative and judicial organization of the empire, the shift to a constitutional regime constituted the last stage of the Tanzimat era. Through the Tanzimat and Islahat edicts adopted in 1839 and 1856, respectively, the sultan had already granted his subjects the right to security of life (can), honor (ırz ve namus), and property (mal), and had asserted the equality of all Ottoman subjects irrespective of religion.Footnote 1 Yet the constitution promulgated by Sultan Abdülhamid II in 1876—known in Turkish as the Basic Law (Kanun-ı Esasi)—not only elaborated further on the rights and duties of Ottoman citizens, but also placed limits on the sovereign powers of the sultan, creating for the first time a legislative assembly partially elected by the people. While executive power remained in the hands of the sultan, the legislature was granted certain powers to enact laws and supervise the ministers appointed by the sultan.Footnote 2 In addition, the constitution recognized the independence of the judiciary. This article seeks to add to our understanding of this constitutional order by focusing on the introduction of a new notion into the Ottoman political and legal vocabulary; namely, the idare-i örfiyye. Footnote 3
The words idare-i örfiyye were first used in article 113 of the 1876 constitution.Footnote 4 Often translated as “état de siège” (or “state of siege”), the idare-i örfiyye enabled the sovereign authority to temporarily suspend constitutional freedoms in localities threatened by major disruptions to public order. It was first applied in the months and years following the constitution’s promulgation, through a set of measures specific to the state of siege, such as curfews, a ban on public gatherings, and the establishment of courts-martial to try civilians. The notion of idare-i örfiyye has hitherto only attracted the interest of legal specialists, most of whom have taken it as an object of comparative constitutional law, discussing its similarities with French regulations relating to the état de siège.Footnote 5 While these studies have collected valuable information on the main stages of the process of legally defining the idare-i örfiyye during the late Ottoman period, none go beyond a formal perspective on these legal changes. They mainly draw on analysis of the constitutional and legal provisions in order to evaluate their legal implications, while refraining from comment on the political and social dynamics associated with the process.
My approach differs from the previous work in the field in that it aims to discuss conjointly both the legal traditions and political context that shaped the 1876 constitution’s definition of idare-i örfiyye, and the subsequent regulations. With a name rooted in the Ottoman legal tradition and a definition clearly inspired by the nineteenth-century French état de siège, the idare-i örfiyye was a case of legal hybridity that combined the Ottoman political and legal tradition with transnational (or transimperial) legal circulation.Footnote 6 This paper seeks to understand how and why these different legal and political references were combined in order to make it possible, under exceptional circumstances, to suspend the ordinary legal order. At the same time, the article analyzes the first application of the idare-i örfiyye, during the Russo-Turkish War of 1877–1878, in order to show how local and diplomatic reactions to this exceptional state of affairs were crucial for the further definition of the notion. I believe that studying the “making of law” and “law in action” as interrelated fields is one of the most fruitful ways of going beyond legal formalism in such a way as to assess legal transformations within the context of their political and social spheres.Footnote 7 In this respect, the aim of this article is to make an original contribution to those studies of law, society, and empires that have, over recent decades, invigorated the field of legal history.Footnote 8
To this end, my research employs a wide range of sources: in addition to the published French and Ottoman legal texts, I have also relied on documents found in the military archives in Ankara and the Prime Ministry Ottoman Archives, as well as in the British diplomatic archives. Through a critical approach to these sources, the article discusses how various legal sources, the political context of the early Hamidian reign, and local experiences all shaped the notion of idare-i örfiyye, soon transforming it into a tool of government for exceptional and (more frequently) non-exceptional times. I thus hope to help shed light on a particular legal mechanism that played an important political role both during the late Ottoman period and in the later republican era. Beyond this specific case, I also argue that legal hybridity should not be analyzed solely as a product of textual encounters, but also as a result of political and social confrontations involving a wide range of local, governmental, and on occasion foreign actors.
This article is divided into two parts. The first part focuses on the invention of idare-i örfiyye as a new legal notion with roots in both the Islamic legal tradition and the foreign constitutional regimes of the time. In the second part, I will examine the first application of idare-i örfiyye against the backdrop of the Russo-Turkish War of 1877–1878 in relation to the process of law-making that led to the promulgation of the decree (kararname) on the idare-i örfiyye in September 1877.
The invention of idare-i örfiyye
The invention and application of the equivalent of a state of siege was not an Ottoman innovation. In fact, the idea of a suspension of the normal political and legal order in extraordinary circumstances can be traced back to antiquity via such notions as the iustitium of the Roman Republic.Footnote 9 However, in the modern sense of the terms, both martial law and the state of siege were first codified during the French Revolution. In 1789, the former referred to military intervention and the banning of public gathering in the event of seditious demonstrations, whereas the latter was defined in purely military terms (literally to be applied in places besieged by the enemy). However, very rapidly from 1791 onwards, the état de siège shifted towards a more political definition, targeting not only foreign armies but also the enemy within; namely, “rebels” or seditious groups.Footnote 10 In the nineteenth century, it was used during the July Revolution in 1830 and later, in 1849, redefined as a specific legal measure to be used in case of “péril imminent contre la sécurité intérieure ou extérieure” (“imminent peril to internal or external security”).Footnote 11 The 1848 revolutions also triggered similar measures in other European countries. Among these, the Prussian Law on the State of Siege (Gesetz über den Belagerungszustand), adopted in June 1851, included both war and riots (Aufruhr) within its scope and constituted one of the most articulate definitions of the scope and meaning of the state of siege.Footnote 12 Explicitly mentioned in the 1871 Constitution of the German Empire (article 68), it played an important role in the administrative and political balance of the German Empire until the end of World War I, and served as a major point of reference in Carl Schmitt’s early discussion of the notion.Footnote 13 Similar legal measures were adopted by most western European countries, as well as non-European countries, during the nineteenth century. In constitutional regimes, the definition of the état de siège took two forms: the integration of the principle into the constitution on the one hand, and, on the other, the passing of laws and regulations intended to specify its scope and how it was to be applied.Footnote 14
In the Ottoman Empire, this legal notion was introduced through the 1876 constitution, in article 113, under the expression “idare-i örfiyye.” Before analyzing the genesis of this constitutional article, a preliminary remark seems necessary: article 113 was not just one article among others, nor was the idare-i örfiyye a run-of-the-mill legal-political notion. Like its counterparts in other countries, it provided legal grounds for suspending the legal order. In other words, it integrated exceptionality within the rule of law, thereby making it possible to suspend the rule of law in the name of the rule of law. Ever since the nineteenth century, the conceptualization and legitimization of this exceptional clause have proven a challenge not only to lawyers and rulers, but also to political thinkers and philosophers. Discussion of this issue was at the core of Carl Schmitt’s political theory in the 1920s and 1930s, and has once again come to the fore following the 2005 publication of Giorgio Agamben’s State of Exception.Footnote 15 Conceptualizing the state of exception as “neither external nor internal to the juridical order,” Agamben’s exploration of this “zone of anomie” leads him to question the relationship between law, politics, and life in modern states.Footnote 16 While I will not directly engage with this theoretical framework in this article, I do think that analysis of the idare-i örfiyye as a legal notion, and, even more crucially, study of how it was applied, can make an original contribution to discussion of law, authority, and sovereignty in the late Ottoman context.
Article 113 of the 1876 constitution is best known for its final sentence, which grants the sultan the right to expel from the empire any individuals who threaten the safety of the state. While this sentence has attracted extensive commentary as being indicative of the ongoing discretionary power of the sultan under the new constitutional regime, less attention has been paid to the first part of the article, which provides the first definition of the scope and meaning of the idare-i örfiyye. Footnote 17 Article 113 reads as follows:
In the case of the perpetration of acts, or the appearance of indications of a nature to presage disturbance at any point on the territory of the Empire, the Imperial Government has the right to proclaim a state of siege [idare-i örfiyye] there. The state of siege consists in the temporary suspension of the civil laws. The mode of administration of localities under a state of siege will be regulated by a special law.
His Majesty the Sultan has the exclusive right of expelling from the territory of the Empire those who, in consequence of trustworthy information obtained by the police, are recognized as dangerous to the safety of the State.Footnote 18
In this constitutional article, the idare-i örfiyye is defined in relation to four main parameters: actual or virtual disruptions of public order (ihtilâl);Footnote 19 the political authority of the imperial government (İrade-i Seniyye); the civil legal order (kavânîn ve nizâmât-ı mülkiye) that is to be suspended; and the spatial and temporal limitations circumscribing the scope of application to a specific locality (o mahalle mahsûs olmak üzere) on a temporary basis (muvakkaten). While each of these parameters merits thorough analysis, this article will focus mainly on the central notion of idare-i örfiyye, which, to my knowledge, was first used in this particular constitutional article.
Through the term örf, the expression idare-i örfiyye explicitly refers to one of the three major sources of law in the empire, which, alongside kanun and şeriat, constituted the complex Ottoman judicial system. Although örf is often translated as “custom” (together with the term adet), as a legal notion it referred both to customs acknowledged by the imperial authority and to the power of this imperial authority to issue legal regulations. It is not, however, the “customary” dimension of örf that is central in the expression idare-i örfiyye—which could literally be translated as “administration by the imperial authority”—but rather the idea of sultanic power and authority.Footnote 20 In this regard, the juxtaposition within a single constitutional article of the provision on the idare-i örfiyye and the aforementioned right of the sultan to expel dangerous individuals makes much more sense, as these are two related aspects of the discretionary power of the ruler as acknowledged by the constitution.
Thus, the neologism idare-i örfiyye appears as a meaningful choice to root the notion in the Islamic political and legal tradition to which the Ottoman Empire belonged. Moving away from the paradigms of westernization and secularization long favored by Turkish and non-Turkish historians, recent works have emphasized the imprint made on the Tanzimat reforms by the Islamic tradition from the perspectives of vocabulary, political theory, and policies. The Islamic roots and aspects of the reforms have been explored through a wide range of cases, such as the role of religious circles in drafting the reforms, the imprint of the sharia on the penal codes adopted in the mid-nineteenth century, and the centrality of religion in the new schools.Footnote 21 The final version of the 1876 constitution also reveals the importance accorded to conforming to Islamic principles by those who drafted the text. The constitution established Islam as the religion of the Ottoman state (art. 11) and contained a number of references to the Ottoman state’s religious identity. In addition to the caliphal authority of the sultan (art. 3–4), the importance of Islamic law in the judicial sphere was also asserted in several articles that mention the application of Islamic law (ahkam-i şe’riye, art. 7), the need for the law to conform to the state religion (art. 64), and the role of the sharia courts (şe’riye mahkemeleri, art. 87).
The influence of the Islamic legal and political tradition was not limited to these explicit references to the sharia. The way in which the notion of political authority was related to that of legislative power in the constitution also drew on the Islamic tradition. Namık Kemal, who was personally involved in drafting the constitution, wrote extensively on the Islamic roots of the constitutional idea, with special emphasis on the principles of consultation (meşveret) and allegiance (baya).Footnote 22 The idea that the constitution strengthened rather than threatened the authority of the sultan-caliph was emphasized by bureaucrats and thinkers who were either directly involved in the drafting process or who commented on the constitutional text in later years.Footnote 23 Among them, Ahmet Midhat even argued that the constitution was, in essence, similar in nature to the sharia.Footnote 24 From this perspective, both the term idare-i örfiyye and its constitutional definition can be interpreted as a way of preserving sultanic power as the ultimate source of authority within the framework of the constitution.
The Islamic tradition was not, however, the only source of the idare-i örfiyye. Alternative versions of article 113 in the drafts of the first constitution provide important clues as to the political and legal dynamics that shaped the notion.Footnote 25 In the archival version of Said Pasha’s draft, we find the term muhasara hâli, before it became idare-i örfiyye in the printed version.Footnote 26 This literal translation of the French term état de siège reflected the influence that the French legal framework had on the état de siège as conceptualized by the Ottomans. While this literal translation does not appear in any other known draft, the final provision of article 113 on the idare-i örfiyye displays striking similarities with article 106 of the French constitution of 1848, which stipulates that a law must define the scope of the état de siège and how it was to be applied.Footnote 27
The rejection of the term muhasara hâli merits discussion. Although the expression can be found in a few archival documents and parliamentary records from the second constitutional period, it was not used in any of the official regulations issued from 1876 onwards. What is more, the reality or fiction of war was never used to justify application of the idare-i örfiyye, with the sole exception of a draft law from 1877 that was, however, never actually promulgated.Footnote 28 There is a clear difference here from the French case, where, from the French Revolution to the twentieth century, the état de siège was legitimized by the existence of either “external or civil war” (1790) or “internal or external threat” (1848). In the Ottoman constitution, the conditions under which it was possible to proclaim the idare-i örfiyye were defined as ihtilâl, or signs of a possible ihtilâl, with no reference to military threats. The idare-i örfiyye was thus presented as a political and legal response to a political threat, rather than as a military reaction to a war (or war-like) situation.Footnote 29
The fact that no appeal was made to the fiction of war is intriguing given that this differs not only from the French case, but also from the definitions of the state of siege and martial law as developed by other European states in the nineteenth century. Moreover, as the constitution was drafted within the context of uprisings in Bosnia-Herzegovina and Bulgaria and growing diplomatic tensions with the European powers and neighboring Russia, the threat of war might well have been expected to leave some imprint on article 113. Although this is a matter that requires further research, I would suggest two reasons that the fiction of war was left aside in the Ottoman context. First, the use of military expeditions, summary justice, and discretionary authority to suppress rebellion and banditry had been a current practice before the Tanzimat reforms, and continued to be so after them as well. There was therefore no need to appeal to the fiction of war in order to legitimize what could be considered a continuum of governmental practices stretching from early Ottoman times through to the constitutional regime. Second, despite their aim of homogenizing the Ottoman territory and promulgating comprehensive regulations for provincial administration, the Tanzimat reforms had not in fact effaced the many different administrative patterns that were used to rule a massive territory stretching from the Balkans to the Arabian peninsula. Specifically, the model of a civil provincial administration was not applied uniformly across the empire’s territory: on the borderlands and in provinces that posed specific challenges to central authority, military governors tended to be appointed as heads of the provincial administration, with no reference to exceptional circumstances or any distinct legal framework being required.Footnote 30 Given this context, it may have seemed more meaningful to root the idare-i örfiyye in existing practices of governance, rather than legitimizing it through the fiction of war.
“İdare-i askeriyye”—literally, “military administration”—was another notion proposed during the drafting of the constitution. The term can be found in a handwritten comment made by Namık Kemal on a constitutional draft, where he objected to the use of idare-i örfiyye, deeming it “inaccurate.”Footnote 31 His alternative suggestion may have been inspired by the expressions “loi martiale” or “martial law,” used in many languages to refer to similar measures. It was also more a more explicit description of the practical consequences of the application of the state of siege, which Namık Kemal may well have known from the French case. The most striking features of the state of siege were the extended powers given to the military forces and the dispensing of justice via court-martial. Despite Namık Kemal’s objection, the final version of article 113 retained the term idare-i örfiyye, with no reference to the military. Interestingly, archival documents emanating from the military staff during the following months and years sometimes used the term idare-i askeriyye instead of idare-i örfiyye. Footnote 32 Rather than being a recurrent lapsus calami, this terminology illustrates how the military were quick to appropriate this measure. While the constitutional definition refrained from referring to military authority, the regulations related to idare-i örfiyye that were promulgated in the first and second constitutional periods granted the military an increasing role in implementing the measure.
Several conclusions may be drawn from these observations on the invention of idare-i örfiyye in the first Ottoman constitution. First, the notion was defined as a tool for protecting imperial power against disorders or threats to political authority, and, significantly, it was associated with the sultan’s power to expel dangerous individuals from Ottoman territory. Although the Ottoman state had relied heavily on military governance and summary justice to crush political and social dissent during the early modern and Tanzimat periods, under the new constitutional order such practices had to be reframed so as to make them compatible with the rule of law. This was the function of article 113, which defined idare-i örfiyye by linking the Islamic legal tradition to the legal framework that had already been developed in other countries during the nineteenth century.
At the same time, from a political perspective, idare-i örfiyye can be interpreted as a means of maintaining the prevalence and prerogatives of sultanic authority within the framework of the new constitutional regime. In connection with this, the absence of idare-i örfiyye and equivalent notions in the draft constitution prepared by Midhat Pasha, who was the chairman of the constitutional commission in 1876, is indicative of a lack of consensus among the authors of the constitution concerning just how far sultanic authority extended.Footnote 33 While both Namık Kemal and the sultan’s entourage emphasized the need to reinforce the sultan’s prerogatives, Midhat Pasha embodied a reformist, bureaucratic approach that sought to curb executive power and define it via its governmental functions rather than in terms of an intangible sultanic authority. In this respect, the expression hükümet-i seniyye (“imperial government”), used in article 113 to refer to the authority defined as capable of proclaiming idare-i örfiyye, was not without ambiguity as to the respective roles to be played by the sultan and the government in this process.Footnote 34
Many aspects of the invention of idare-i örfiyye have yet to be ascertained. It is unclear, for example, exactly when the expression was coined, or by whom. What is more, both the Islamic roots and the transnational dimension of the notion merit greater attention. Of course, none of these aspects can be explored by focusing solely on the aforementioned constitutional article. Leaving aside the question of origins, the second section of this paper will be devoted to the concomitant processes of the legal definition and implementation of idare-i örfiyye that arose from the promulgation of article 113. Indeed, a decree passed in late September 1877 represented the final stage in a series of attempts to define idare-i örfiyye’s legal scope. Meanwhile, the measure had already begun to be implemented during the spring and summer of 1877 in a number of localities and in the context of the Russo-Turkish War. Below, I argue that the challenges raised by this first implementation of idare-i örfiyye played a decisive role in shaping the legal provisions that were promulgated in the fall of 1877.
The making of law in action: the legal definition and implementation of the idare-i örfiyye in 1877
The first implementation of the idare-i örfiyye in the Russo-Turkish War of 1877–1878
On April 24, 1877, czarist Russia declared war on the Ottoman Empire. This did not come as a surprise, as the situation in the Balkans had gone from bad to worse over the last several years, with increasing intervention by the czarist regime to protect the interests of the Slavic population there. Hostilities opened with a Russian assault on two fronts: in the Balkans, the Russian armies attacked the Danubian province through Romania, while on the Caucasian front, the Russian corps stationed in Georgia and Armenia crossed the eastern Anatolian border and captured Beyazit and Ardahan during the first weeks of the conflict. The social unrest generated by the Russian attack culminated in the capture of Ardahan in mid-May. On May 23, in İstanbul, a few hundred students protested before parliament against the Ottoman defeat. Some of them even managed to enter the parliament and voice their concerns to the deputies before the parliamentary meeting was called off. The following day, idare-i örfiyye was proclaimed in İstanbul. The official notice given to the newspapers of the capital justified the proclamation with the need to maintain security and public order in order to prevent the Russians from benefiting from political instability.Footnote 35 During the summer of 1877, the progress of the Russian armies led the Ottoman state to expand the idare-i örfiyye to a number of localities close to the battlefield: large areas of Bosnia and the entire province of Salonica had been subjected to idare-i örfiyye by late July 1877, and by the end of the summer the measure had been extended to all of Rumelia. During the same year, the island of Crete and the eastern Anatolian province of Erzurum were added to the list as well.
These first instances of implementation of idare-i örfiyye were, for the most part, introduced by official proclamations in the streets and newspapers, which used the term created for the 1876 constitution to announce a set of measures aimed at preserving or restoring public order. However, in the absence of any available law or regulation concerning idare-i örfiyye, the proclamations took place in a semi-legal vacuum. In this context, the means by which the idare-i örfiyye was implemented, as well as its scope, came to be defined empirically through contact and negotiation among the main actors involved: the government, and more specifically the Ministry of War and the Ministry of the Interior; the provincial authorities (governors and generals); the foreign powers involved through their consulates and embassies in İstanbul; and various other local actors. The archival documentation in the Archives of the General Staff in Ankara and the Prime Ministry Ottoman Archives in İstanbul offers interesting insight into this process. Although the documents focus mainly on the official protagonists and tend to gloss over the others, they are nevertheless indicative of the hesitations and negotiations that accompanied the first implementation of the measure.
These documents highlight the crucial role played by the military staff in the Balkans in the proclamation, implementation, and prorogation of the idare-i örfiyye. In April 1877, just after the Russians had declared war, the Ottoman general of the army stationed in Bosnia sent a request to the Ministry of War, not only asking that idare-i örfiyye be proclaimed, but also inquiring about the existence of a regulation for what he called örf-i askeri.Footnote 36 While this example shows that there was some knowledge of the new term among military staff, it also pointed to another source of military knowledge on the topic. Indeed, the general justified his request by citing the Russian proclamation of idare-i örfiyye, a term which he apparently used to refer to the provisional Russian administration in Bulgaria that was set up at the beginning of the war. This provisional administration actually had little to do with the Ottoman idare-i örfiyye: it was conceived as a temporary form of military occupation, with the aim of preparing accession to independence via a set of military, administrative, and judicial reforms, and supervised by a Russian commissioner.Footnote 37 This confusion between the Russian and Ottoman cases shows that the lack of previous experience and of a clear legal framework made it difficult for the actors on the ground to figure out what exactly the idare-i örfiyye meant.
On the ground, the first consequence of the proclamation of the idare-i örfiyye in any given area was the build-up of troops. Additional troops would be sent from neighboring regions to take over the task of confiscating weapons and maintaining public order. Significantly, the first reports emanating from the British vice-consulate in Prevesa concerning the idare-i örfiyye were almost entirely devoted to these military forces and the arbitrary acts attributed to them, such as the violation of private homes and unjustified arrests.Footnote 38
In the context of the Russo-Turkish War, the military staff stationed in the Balkans seems to have played an important role in the rapid spread of the idare-i örfiyye. While the constitutional clause had singled out the authority of the “imperial government,” the process of implementation also empowered local actors. This had been foreseen by Namık Kemal, as per his aforementioned comment on article 113 of the constitution: pointing to the risk that “any governor (vali)” could declare idare-i örfiyye, he had argued, albeit in vain, that the notion be more explicitly subordinated to imperial authority.Footnote 39 While his warning had primarily targeted the provincial bureaucracy, this first implementation of the idare-i örfiyye showed that the military would be the first to benefit from this dissemination of authority.Footnote 40 That the idare-i örfiyye could thus give way to a kind of autonomization of regionally based armies, and thereby, paradoxically, weaken both the executive and the legislative powers, was a subject that would later be debated at length by the Ottoman parliament during the second constitutional period. The first applications of the idare-i örfiyye clearly bore the seeds of this evolution.Footnote 41
This observation makes it clear that the idare-i örfiyye cannot be analyzed solely from the perspective of its impact on the balance between the executive and the legislative in the constitutional regime. The redefinition of political authority that was introduced by the constitutional turn—and more specifically by article 113—also needs to be assessed in terms of the practices stemming from the new political and legal context. In this regard, the discretionary power that the military were granted or that they granted themselves in 1877, and the role played by the provincial administration, police forces, and judicial institutions in implementing the idare-i örfiyye, all merit further research to ascertain the extent to which the state of siege affected local balances of power.
Law and discretion: the incomplete definition of the idare-i örfiyye
When the idare-i örfiyye was first implemented, it gave concrete meaning to the abstract constitutional definition of the notion, attributing specific importance to the military component that the constitutional text had overlooked. Clearly, war conditions had a decisive influence in bringing the idare-i örfiyye much closer to the French regulations’ outline of the état de siège being legitimized by reference to either a real or a fictive war. Even so, the direction taken by this implementation did not have the force of law. On the contrary, as mentioned above, those involved in the implementation on the ground repeatedly asked to be sent the legal provisions that would enable them to understand the exact scope of the notion. Although the first decree of idare-i örfiyye was not issued until October 1877, attempts to codify it in İstanbul can be traced from May 1877 onwards. These attempts developed in tandem with the implementation of the idare-i örfiyye in the Ottoman capital and provinces.
In May 1877, the proclamation of idare-i örfiyye in İstanbul was accompanied by an order (irade) from the Ministry of the Interior, giving a short account of the concrete consequences of the proclamation.Footnote 42 As compared to the constitutional article, this order placed greater emphasis on the role of military authority, referred to as “hükümet-i askeri” and “örf-i askeri.” It entrusted the army with judicial and police powers. From the judicial perspective, the order contained the first mention of the role to be played by courts-martial (divan-ı harb).Footnote 43 A court-martial was to be established at the general staff in İstanbul in order to try the infractions made against the public order. Those found guilty were to be sentenced to death, forced labor, or prison, with the sentences to be enacted immediately (derhâl). These courts-martial were thus in flagrant contradiction of the judicial system established during the Tanzimat period: they destroyed the autonomy of the judicial sphere and deprived the citizens of any right to appeal.
Military forces were also granted the main role in policing. Their missions included not only the confiscation of weapons, but also the investigation of private houses both night and day and the expulsion of suspects, recidivists, and non-residents. The non-resident category (ikâmetgâhları olmayan eşhası) could apply to foreigners, migrants, and vagrants—people who were already being targeted by police forces in the capital. Expulsion was also part of the traditional way of dealing with subversive or uprooted individuals. This provision highlighted how the exceptional circumstances officially targeted by the idare-i örfiyye could blur into its being used as a tool for social control. The final provisions of the Ministry of the Interior’s order were curbs on the freedom of the press and the banning of all varieties of public assembly. On the whole, the order reproduced almost exactly article 9 of the 1849 French law on the état de siege, but its legal scope remained limited to the Ottoman capital.Footnote 44
This order was not, however, the only regulation drafted at the beginning of the Russo-Turkish War. For instance, a law on the idare-i örfiyye (İdare-i örfiyye kanun layıhası) was drafted in April 1877 and approved by the Chamber of Deputies (Meclis-i Mebusan) and the Senate (Meclis-i Ayan) on June 2.Footnote 45 Its 22 articles codified the declaration, application, and derogation of the idare-i örfiyye. The first article provided a specific definition of circumstances that would justify the proclamation of idare-i örfiyye. This article differed from the constitutional article to the extent that it included not only signs of ihtilal, but also situations of war (muharebe) and revolt (isyan): “The state of siege is imposed on war areas and other localities in event of revolt or war or other facts or signs indicative of troubles in some part of the territory, which could threaten the exterior and interior security of the empire.”Footnote 46
It is more than likely that, together with the influence of the French legal texts, the conflict with Russia was one reason why war was added to political troubles as a reason for the proclamation of idare-i örfiyye. The subsequent articles in the draft law contained precise information on the authorities to be involved in the proclamation. While the sultan was granted “exclusive power” to declare the state of siege, this declaration was to take place at the request of the government (art. 2), and only after consultation with local civil and military authorities (art. 3). Most of the draft law was devoted to the attributes of the courts-martial, giving specific information about their geographic scope and the type of crimes they could try. For unknown reasons, however, this draft law was never promulgated, and therefore had no legal authority when the idare-i örfiyye first came into effect in the capital and provinces. Nevertheless, the draft was sent to the armies on the front, for their information.Footnote 47
The absence of any official, comprehensive legal framework paved the way for various interpretations and objections to be formulated on the ground. Although thorough analysis of the available archival material has yet to be conducted, one particular field of contestation related to whether or not the idare-i örfiyye was to apply to foreign nationals. Even before the first proclamation in İstanbul, the British embassy informed the Foreign Office of rumors that the state of siege might be declared. Reporting that this eventuality had “caused great alarm, especially among the Christians and the foreign residents in the city and the suburbs,” the ambassador warned the Ottoman foreign minister:
I pointed out to his Excellency that it might give rise to every kind of difficulty and to serious misunderstandings with foreign Powers on account of the Capitulations. Moreover, to empower the authorities and police to enter houses to search for arms and for other purposes might lead to acts of violence calculated to excite European opinion against the Turkish Government.Footnote 48
From the perspective of the diplomatic sources, the idare-i örfiyye was first and foremost an issue of international law, one which had to be defined within the limits imposed by the extraterritorial rights granted to certain foreign states. The absence of any mention of such limitations in the temporary legal framework available in spring 1877 was a source of worry for diplomatic representatives in the empire. Their concerns only increased when the measure was first implemented. In several documents, foreign embassies and consulates requested clarification concerning the regulation of the idare-i örfiyye, and objected to any possible application to non-Ottoman subjects, as well as to their expulsion.Footnote 49 In the constitutional article, the scope of the idare-i örfiyye was defined in territorial terms and limited to the place where troubles had occurred or could occur. This definition failed to clarify the personal scope of the provision and thus raised many questions as to the fate of any foreign subjects living in the areas where the idare-i örfiyye had been imposed: would they be arrested by the military forces and tried by court-martial? Or would they be expelled from the areas where the idare-i örfiyye was in effect?Footnote 50
While the Ottoman authorities denied any intention to breach the capitulations, they nonetheless stood by the territorial definition of idare-i örfiyye. One particular memorandum in five articles, addressed to the consular representatives and sent out at the end of the summer, clarified how the situation applied to foreign subjects.Footnote 51 According to this document, foreign subjects were indeed subject to the idare-i örfiyye, but with two additional provisions: first, a consular employee should be present in cases of homes being searched or trial by court-martial; second, they would be granted a delay as regards leaving the affected area following the proclamation of the idare-i örfiyye. These nuances reflected Ottoman attempts to placate the foreign powers. And yet, in the eyes of the European powers, both on paper and in practice, the application of the idare-i örfiyye to foreign subjects remained an unacceptable breach of the principle of extraterritoriality. It may be assumed that further research in the archives and contemporary newspapers will reveal other kinds of tensions and resistances caused by the application of the idare-i örfiyye as well.
The İdare-i Örfiyye Kararnamesi, which was promulgated on September 30, 1877, was the final stage in the law-making process and represented the first comprehensive regulation of the idare-i örfiyye. Footnote 52 From a legal standpoint, the regulation’s second article clearly established the superiority of the idare-i örfiyye over any constitutional articles, civil laws, or other regulations that might contradict it: “After the proclamation of the state of siege, the articles of the constitution and other laws and regulations which contradict this decree on the state of siege will be temporarily suspended as long as the state of siege is maintained.”Footnote 53
The main characteristic of this text was its emphasis on the judicial consequences of the idare-i örfiyye. Nine out of thirteen articles were devoted to the attributes of the courts-martial to be set up once the idare-i örfiyye had been proclaimed. The scope of these courts was broad: they could try offences and crimes committed against the internal and external (dahili ve harici) security of the state (art.4), and they could sentence people for crimes and secret meetings that had occurred before the proclamation of the idare-i örfiyye (art. 10–11). In addition, individuals living outside the areas under the idare-i örfiyye could be tried by court-martial if they had been involved in any troubles in these areas (art. 12). In short, the basic spatial and temporal limits of the idare-i örfiyye were, to a certain extent, sidestepped by the judicial scope of the courts-martial.
As a whole, the regulation’s lack of precision of is striking, especially as compared to the draft law mentioned above. No article, for instance, defined the exact circumstances under which idare-i örfiyye could be proclaimed. This omission thereby removed any reference to exceptional circumstances such as war, revolution, or major troubles, thus paving the way for indiscriminate use of the measure as one tool of governance among others. Moreover, none of the nine articles devoted to the courts-martial dwelled upon the actual composition of these courts or the procedures they were to follow, a lacuna that only served to increase the discretionary power of the judges. Finally, although the case of foreign subjects was not explicitly mentioned, article 4 stated that criminals should be judged without any distinction being made as to status or rank (ne sınıf ve haysiyette bulunursa bulunsun). This expression, while seeming to designate state officials and dignitaries, could also be seen as implicitly referring to foreign subjects.
Given the existence of a more specific draft law and the correspondence between Ottoman state institutions and foreign powers that had occurred during previous months, these lacunae were by no means mere oversight on the part of the government. On the contrary, I would argue that those instances when the idare-i örfiyye came into effect led to a deliberate imprecision on the different issues involved. In this respect, in addition to acknowledging Huricihan Islamoğlu’s “constructivist” approach to legal codification and her argument that social realities shaped the law as much as the law transformed social realities,Footnote 54 I would also maintain that confrontation with these realities also shaped what went into the law unwritten, defining exactly which issues were not to be codified. These lacunae left room for tension and negotiation between the various parties who were actively involved in or affected by the idare-i örfiyye, especially the various institutions of central government, the provincial military authorities, and foreign powers. While they paved the way for some degree of flexibility concerning the application of martial law, they also increased the arbitrary power of the military, who had the prime responsibility for implementing the idare-i örfiyye. Since the idare-i örfiyye was per se a suspension of certain fundamental individual freedoms and constitutional rights, the discretionary power resulting from this lack of precision constituted a kind of exception within the exception.
Conclusion
In this article, I have looked at the genesis of idare-i örfiyye as a legal notion and a governmental practice. The history of the legal reforms of the Tanzimat era requires studying from a multilayered perspective, one that takes into account both the Ottoman social and political configuration and transnational and transimperial dynamics. This article has argued that idare-i örfiyye was born from the encounters between the Islamic legal tradition and foreign legal circulation, in the context of the first Ottoman constitutional experience and the war with czarist Russia. It is to be hoped that further exploration of the various sources that influenced the codification of idare-i örfiyye will deliver an even better and fuller understanding of this hybridization process.
I have also attempted to show that the legal definition of idare-i örfiyye went hand in hand with the challenges posed by social and political configurations on the ground. The interactions between the various actors responsible for proclaiming and implementing the idare-i örfiyye were crucial in shaping the scope and modalities of the measure during the first year of its application. This not only led to a broad definition of the attributes of courts-martial, but also influenced the lack of precision regarding certain sensitive and disputed issues.
In February 1878, when he dismissed parliament and suspended the constitution and thereby introduced a shift to authoritarian rule without check and balances, Sultan Abdülhamid II did not refer to the idare-i örfiyye. From a legal perspective, however, this turning point may be viewed as an extension of the concept of idare-i örfiyye to a new form, one without spatial limits and with only very imprecise temporal restrictions.Footnote 55 The suspension of the constitutional framework did not invalidate article 113: during Abdülhamid II’s reign, the idare-i örfiyye continued to be maintained and proclaimed in various places, especially in areas where the public order and state authority were being challenged by gangs and bandits. The significance of such anomalous legal zones at a time when the Ottoman Empire was no longer a constitutional regime is an issue that requires further exploration.Footnote 56 It seems that, at that time, idare-i örfiyye had already been appropriated as a tool of governance, and was being used to manage certain recurrent disorders or challenges to state authority.
The idare-i örfiyye was also extensively used after the reinstatement of the constitution in 1908, as well as during the successive wars that accompanied the violent dislocation of the empire. It was one of the few Ottoman legal notions to be adopted as is by the republican regime after 1923. In this respect, while the modalities of this transition need to be studied further, my research into the genesis of idare-i örfiyye also represents a contribution to our understanding of the Ottoman legacy to the political and legal structures of modern Turkey.
