The Idea of Human Rights as Perceived in the Ottoman Empire

Berdal Aral, Fatih University (Istanbul)

Human Rights Quarterly 26.2 (2004) 454-482

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Reprinted in the Reflection Cafe with the permission of the Johns Hopkins University Press.

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Abstract

Although human rights doctrine has primarily been a product of Western history, non-Western conceptions and interpretations of issues which we may today link with "human rights" can undoubtedly enrich the debates on this topic. The Ottoman system prioritized the benefits of collectivities rather than those of individuals, and emphasized justice rather than freedom. This paper argues that both the Ottoman sultan as well as the courts took great care to observe the Shariah law, understood of course from a Sunni perspective, which accorded extensive rights to the individual, Muslim and non-Muslim alike. These rights included the right to life, property, fair trial, and social protection, as well as specific rights for women. Contrary to some claims, the state in the Ottoman case did not seek to take control of the "public sphere" unless politics set in. It is only after the Tanzimat reforms of the nineteenth century, influenced primarily by European laws and institutions, that the state came to predominate the public sphere, thus narrowing the scope for civic action. [End Page 454]

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I. Introduction
Analyzing the evolution of human rights in Turkey, experts in this field still focus exclusively on the nationalist/republican era, from the 1920s to today, generally disregarding the Ottoman experience that preceded the modern era. The single most significant reason for this obvious lack of interest is the difficulty of relating the "modern" conception of human rights to the ideas, perceptions, values, and institutions characterizing the Ottoman rule, which lasted over six hundred years from 1299 to 1922. The other reason may be the fact that Turkish academics and other experts in human rights tend to take an unfavorable view of the Ottoman legacy. In those rare instances when the Ottomans are being studied from the perspective of human rights, it is usually limited to the final period of the empire, commonly known as the Tanzimat devri (the period of re-ordering that began in 1839), during which time the Ottomans came increasingly under the influence of Western civilizational standards.

This outright lack of interest in the classical period of the Ottoman Empire shows an unwavering distaste for the Ottoman Weltanschauung, i.e., its perspective of life and conception of the world. This gives the impression of a number of accepted clichés about the Ottomans concerning human rights. Before the Tanzimat, the Ottomans were thought to represent the antithesis of what had been achieved to protect and promote the rights of the individual in absolutist states in the West. To be more specific, the Ottomans were hardly credited with respect to the following rights and liberties: the right to life; immunity from arbitrary actions by the state; independence of the judiciary; prohibition of torture; freedom of expression; the right to privacy; freedom to travel; and so on. In short, the Ottoman Empire continues to be depicted as a tyrannical state and as a typical example of "Oriental Despotism" in the Marxist sense.

Such explicit and/or implicit prejudice is based purely on the ignorance of, and disrespect for, evidence that the subjects of the Ottoman Empire seem to have been treated generally more humanely and justly than those of the empire's contemporaries, an inevitable conclusion in the light of research. It was the Ottoman Empire that granted refuge and sanctuary to the Jews of Spain when, in 1492, they were expelled en massefrom the country. If we accept that the existence of respected human rights is implied by a people's confidence in a Ruler's justice; in their confidence that violation of the law will be punished; in an autonomous sphere of existence for individuals as well as communities; in the existence of a list of rights and freedoms sanctioned by written laws that bind not only the individuals but also the state; then we should accept that, on the whole, the Ottomans had a fairly good record of human rights protection. [End Page 455]

Concerning the position of human rights under Ottoman rule in the pre-Tanzimat era, the focus of analysis primarily centers on the Ottomans' treatment of their non-Muslim subjects. This focus reflects the apologetic attitude of Turkish scholars who take a sympathetic view towards the Ottomans. This attitude is by and large the result of Western accusations of Ottoman abuse and maltreatment of their non-Muslim subjects. The scholars who have a positive view of the Ottoman Empire, thus, strive to show that, contrary to accusations of maltreatment, these subjects were treated humanely, as their distinct culture and identity was respected by their Ottoman rulers. Furthermore, another, yet no less significant reason, exists; in parallel to the undeniable split among Turkish scholars regarding the role which Islam should play in Turkey, two conflicting views predominate with regard to the legacy of the Ottoman Empire. The first current of thought, which may be described as "pro-Ottoman-nationalist," considers the Ottoman epoch as a kind of "age of felicity" (Asr-ý ; Saadet; the term denotes the time of the Holy Prophet and his four successors, i.e., Caliphs, when, as Muslims believe, God's rule on earth reigned supreme). From this perspective, since harmony and mutual understanding characterized the interaction between state and society under Ottoman rule, one can only appreciate rather than criticize the Ottomans. The "secularist perspective," on the other hand, is based on the assumption that Ottoman rule represented the "dark age" of humanity when decisions were arbitrary and oppression prevailed. Therefore, there is no need to examine the Ottoman Empire from the perspective of human rights since human rights did not exist in that era. There can be no doubt that both of these views are too narrow to allow a true understanding of the issue in question, since, as ideologically biased, they are sure to be based on emotions rather than facts. The truth is found somewhere in between, as reliable scholarship has demonstrated.1

This article begins with a description of the modern conception of human rights, while at the same time exposing different categories of human rights. It then proceeds with an exposition of the Islamic conception of key political terms in the classical era, which may be linked to human rights as we understand it today. They are the raison d'être of the state, justice, rights, and freedom. The Shia school of Islam is also examined in this section. The article then examines the Ottoman conception of state, politics, and society, [End Page 456] focusing on the main strands of thought as expounded by Ottoman thinkers on politics and society. Next, the human rights performance of the Ottoman Empire is exposed. The following section outlines the Ottoman millet system as the body of administrative principles giving a degree of autonomy to religious communities, and the extent to which this system guaranteed the rights and liberties of non-Muslim minorities. Under a subheading within this section, the paper draws on "interventions" by powerful European states in the Ottoman Empire beginning from the end of the eighteenth century upon claims of maltreatment, in particular, of non-Muslim subjects of the empire. The final part of this study elaborates on the compatibility between an Islamic perception of human rights and modern human rights doctrine in the light of the lessons which we may draw from this "Ottoman model."

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VII. Conclusion
The issues which have been discussed here so far lead to the conclusion that in matters covered by the Shariah law, the Ottoman Empire generally respected the human rights of its subjects. In areas not covered by firm injunctions of the Shariah law, arbitrary rule sometimes prevailed. This discrepancy between law and legal practice was partly the result of the conspicuous absence of civic establishments involved in politics. In the Ottoman case, the state, out of fear of potential rivalries, never allowed the emergence of intermediary groups that could act as channels of communication between the individual and the state. In other words, seen as alternative centers of power, political formations such as the capitalist class and local fiefs were considered threats to the power of the state; accordingly, they were never allowed to become a significant force. Social groups centered purely around religious and cultural values and activities within various Islamic communities and religious orders (tarikats), foundations, village councils, and tradesmen's guilds did not excite animosity on the part of the state.103

For the Ottoman ruling elite, the ideal system of governance had to be sought on the basis of Shariah law. Even after Western-inspired reforms had been proceeding at full speed, the Ottoman statesmen seemed reluctant to do away with their basically Islamic political system.104 Interestingly, even the opponents to the sultan's absolute rule (istibdat), who gained growing support among educated circles in the second half of the nineteenth century, took great pains to present their ideas in the context of Islamic discourse. For instance, in their search for a constitutional order that would confer more extensive rights to the individual, the Young Ottomans (Genç Osmanlýlar) were always keen to emphasize that their demands for reform were based on Islamic injunctions.105 One of the most respected members of the opposition, Namýk Kemal, found the basis for representative government [End Page 481] in the Quranic principle of sûra which requires that matters concerning the community should be decided by mutual consultation (mesveret). Likewise, the opposition's demand for an accountable government was justified by referring to the experience of the early years of Islam when the Islamic community had given an oath of allegiance (biat) to the new caliph, on condition that he should not deviate from Shariah law.106 This, in a way, proves the lack of full compatibility between the Ottoman legal order and the Shariah law.

This discussion aims to demonstrate that the issue of human rights does not have to focus on the individual per se. Alternative, legitimate ways to protect the human rights of individuals in society exist. The Ottoman experience resulted in: maintaining a reasonable equilibrium between different social groups; encouraging pluralism based on the maintenance of religious communitarianism; and striving for justice for all the subject peoples irrespective of religion instead of consecrating legal equality as the guiding principle. As Muslims, the Ottomans perceived human rights as natural rights of divine origin; and as a consequence, they were sacrosanct and therefore inviolable. The sultans and the ruling elite took great pains to ensure that the rights and liberties expressly conferred by the Shariah law were implemented in full. These features of the Ottoman legal system should be thoroughly considered when evaluating the degree to which human rights were implemented and respected during the Ottoman Empire.

It is difficult to disagree with the concluding statement of Gökçen Alpkaya's article on the exercise of human rights under Ottoman rule: "[c]onsidering the relativity of the concept of human rights, which consists of a universal list of imperatives, we should perhaps first question the concept itself."107 Therefore, what is ultimately enlightening is to reach an understanding ofthe Ottomans' perception of human rights without attempting to judge it from the perspective of modern human rights doctrine. Only then will it be possible to appreciate that, with regard to the aforementioned doctrine, valuable lessons could be learned from the Ottoman experience without denying its shortcomings.

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