Physicians as Experts in the Classical Period of the  Ottoman Jurisdiction Law

Ahmet Kılınç

Makale detayları

Physicians as Experts in the Classical Period of the Ottoman Jurisdiction Law

Yazarlar:

Ahmet Kılınç

Yayıncı:

Erciyes University

Ana Başlıklar:

Hukuk (Diğer)

Dergi:

Erciyes Üniversitesi Hukuk Fakültesi Dergisi Vol.19 Issue 1, pp.287-333

Belge Tipi:

Makale

Yayın Tarihi:

4/2024

Belge Dili:

Türkçe

Document ID (Org No.):

2001316539

pISSN:

1306-3839

Anahtar kelimeler:

Özet:

 The legal system of the Ottoman State is divided into two: the classical period and the post-tanzimat period. The sources and application of classical period Ottoman law have relatively unique characteristics. It is known that during the long period of the mentioned period, the state took serious steps to ensure justice. The provision of justice is too complex an issue that cannot be achieved only by judges, who are referred to as qadi. Many officials assist qadis during the trial. Experts also supported the judge while solving the case. The institution of expert existed in ancient times, in the Ottoman State and even in today; this information shows us that expert is indispensably important for the judicial organization. Experts played very important roles in ensuring justice in the classical period of the Ottoman State. Expert, in its simplest form, can be defined as a third party whose expertise is consulted when the subject of a legal dispute requires special and technical knowledge. If the dispute before the judge requires technical knowledge about health, medical personnel can be consulted as experts. This determination is valid in the Ottoman State as it is today. It should be noted that the number and variety of medical personnel providing medical intervention in the Ottoman State was wide. In this study, all people who provide medical intervention for treatment purposes or to prevent, determine or protect the disease are considered as physicians. Ottoman State was very meticulous in matters such as training physicians and practicing their profession. This study attempts to explain in what kind of cases the physicians have been seen as experts in the classical period of the Ottoman Empire, how they were appointed and the effects of their opinions on the stage of the case. While Qadı registers are our first-hand source, the Registries Records Mühimme Defterleri and other archival documents are used as the sources when needed. This study is relatively original, because it does not focus on experts or physicians. It underlines the physicians as experts. The results of the study are as follows: In the Ottoman judicial organization, physicians appear as viewing members, shuhudul hal members, litigant of consent record and experts roles. Qadıs have wide discretion to apply to a physician expert. Qadıs first decide on the need for professional knowledge of the dispute; then they applied to the opinions of physicians as experts. The central authority determined the expert physicians in the case of conflicts concerning the defective slave-concubine. The judges have appointed the physicians as experts who work in the Darushaifa or their own offices in the region. Qadıs did not apply to the medical expert in matters that could be understood by the ordinariness of life, even if the subject matter was a medical matter. Depending on the circumstances of the case, the judges applied to the physician in one of the cases related to the same subject while they could not apply to the ot-her. At this point, Qadıs were limited in the claims of leprosy and in the case of. The physicians were able to present their views in the presence of a member of the expedition, by sending their opinion or before the court. The physicians who expressed their opinion as experts before the court were able to become witness in the same case. Expert physicians were seen in following cases: murder, assault and battery, adultery, reject the religion claims, conflicts concerning the defective slave-concubine, the presence of leprosy or mental and neurological disorders. Other physicians were experts in determining the claim of non-standard unusual treatment. The medical opinions of the physicians have played an important role in the legal analysis and decision of the case by the judges. The opinion of the expert physician was not disputed. The experience of classical period Ottoman law reveals that measures should be taken to ensure that physicians perform their profession properly and that judges should have wide discretion in appointing medical experts. This accumulation of legal history reveals that judges must be courageous in making decisions without consulting an expert on case matters that can be understood in the ordinary course of life.

 Bu çalışma Osmanlı Devletinin klasik döneminde hekimlerin bilirkişi olarak ne tür davalarda görüldüklerini, nasıl atandıklarını ve görüşlerinin davanın seyrine olan etkisini izah etmeye çalışır. Kadı sicilleri, birinci el kaynak olmakla beraber, veri sağlayan mühimme kayıtları ve diğer arşiv belgeleri de yeri geldiğinde istifade edilen belgelerdir. Sadece ehl-i vukufu ya da sadece hekimleri çalışmaması, hekimlerin hukuk süjesi yönünü çalışması, işbu çalışmayı nispeten özgün kılmaktadır. Çalışma ile ulaşılan birtakım sonuçlar şunlardır: Osmanlı yargı teşkilatı içerisinde, hekimler, keşif heyet üyesi, şuhudul hal, rıza sene-dinin tarafı ve ehl-i vukuf rolleri ile karşımıza çıkmaktadırlar. Kadıların hekim bilirkişisine başvurma konusunda geniş takdir yetkisi vardır. Kadılar, öncelikle uyuşmazlık konusunun hekimlik meslek bilgisine ihtiyaç olduğuna karar vermiş; ardından hekimlerin görüşlerine bilirkişi olarak başvurmuşlardır. Ayıplı köle-cariye ile ilgili uyuşmazlıklarda hangi hekimlerin bilirkişilik yapabileceğini merkezi otorite belirlemiştir. Kadılar bulundukları bölgede mesleklerini icra eden Darüşşifadaki veya kendi dükkanları olan hekimleri görevlendirmişlerdir. Kadılar, dava konusu tıbbi bir mevzu dahi olsa hayatın olağan akışı ile anlaşılabilecek hususlarda hekim bilirkişiye başvurmamışlardır. Somut olayın şartlarına bağlı olarak kadılar aynı konuya ilişkin davaların birinde hekime başvurabilmişken diğerinde başvurmayabilmiştir. Bu noktada cüzzam ve ayıplı cariye-köle iddialarında kadıların yetkileri sınırlandırılmıştır. Hekimler, keşif heyet üyesinde yer alarak, haber göndererek veya mahkeme huzurunda görüşlerini bildirebilmişlerdir. Mahkeme huzurunda ehl-i vukuf olarak görüş bildiren hekimler, daha sonra şahit statüsüne geçebilmişlerdir. Kayıtlarda hekimlere ehl-i vukuf olarak adam öldürme, müessir fiil, zina, mürtedlik iddiası, cüz-zamlı veya akli melekelerinin yerinde olup olmadığı, cariye ve veya kölelerin ayıplı olup olmadıklarının tespitinde başvurulmuştur. Mutad dışı tedavi iddiasının belirlenmesinde de diğer hekimler bilirkişilik yapmışlardır. Hekimlerin tıbbi görüşleri, kadılar tarafından vakanın hukuki tahlilinde ve karar verilmesinde önemli rol üstlenmiştir. Bilirkişi hekim görüşlerine kural olarak itiraz edilmemiştir. Klasik dönem Osmanlı hukuku tecrübesi, hekimlerin mesleklerini layıkıyla yapmalarını sağlayacak tedbirlerin alınması ve hâkimlerin hekim bilirkişisi belirleme hususunda geniş takdir yetkisine sahip olması gerektiğini ortaya koymaktadır. Bu hukuk tarihi birikimi, hayatın olağan akışı ile anlaşılabilecek dava konularında hâkimlerin bilirkişiye gitmeden karar vermede cesur olmalarını gerektiğini ortaya koymaktadır.

 The legal system of the Ottoman State is divided into two: the classical period and the post-tanzimat period. The sources and application of classical period Ottoman law have relatively unique characteristics. It is known that during the long period of the mentioned period, the state took serious steps to ensure justice. The provision of justice is too complex an issue that cannot be achieved only by judges, who are referred to as qadi. Many officials assist qadis during the trial. Experts also supported the judge while solving the case. The institution of expert existed in ancient times, in the Ottoman State and even in today; this information shows us that expert is indispensably important for the judicial organization. Experts played very important roles in ensuring justice in the classical period of the Ottoman State. Expert, in its simplest form, can be defined as a third party whose expertise is consulted when the subject of a legal dispute requires special and technical knowledge. If the dispute before the judge requires technical knowledge about health, medical personnel can be consulted as experts. This determination is valid in the Ottoman State as it is today. It should be noted that the number and variety of medical personnel providing medical intervention in the Ottoman State was wide. In this study, all people who provide medical intervention for treatment purposes or to prevent, determine or protect the disease are considered as physicians. Ottoman State was very meticulous in matters such as training physicians and practicing their profession. This study attempts to explain in what kind of cases the physicians have been seen as experts in the classical period of the Ottoman Empire, how they were appointed and the effects of their opinions on the stage of the case. While Qadı registers are our first-hand source, the Registries Records Mühimme Defterleri and other archival documents are used as the sources when needed. This study is relatively original, because it does not focus on experts or physicians. It underlines the physicians as experts. The results of the study are as follows: In the Ottoman judicial organization, physicians appear as viewing members, shuhudul hal members, litigant of consent record and experts roles. Qadıs have wide discretion to apply to a physician expert. Qadıs first decide on the need for professional knowledge of the dispute; then they applied to the opinions of physicians as experts. The central authority determined the expert physicians in the case of conflicts concerning the defective slave-concubine. The judges have appointed the physicians as experts who work in the Darushaifa or their own offices in the region. Qadıs did not apply to the medical expert in matters that could be understood by the ordinariness of life, even if the subject matter was a medical matter. Depending on the circumstances of the case, the judges applied to the physician in one of the cases related to the same subject while they could not apply to the ot-her. At this point, Qadıs were limited in the claims of leprosy and in the case of. The physicians were able to present their views in the presence of a member of the expedition, by sending their opinion or before the court. The physicians who expressed their opinion as experts before the court were able to become witness in the same case. Expert physicians were seen in following cases: murder, assault and battery, adultery, reject the religion claims, conflicts concerning the defective slave-concubine, the presence of leprosy or mental and neurological disorders. Other physicians were experts in determining the claim of non-standard unusual treatment. The medical opinions of the physicians have played an important role in the legal analysis and decision of the case by the judges. The opinion of the expert physician was not disputed. The experience of classical period Ottoman law reveals that measures should be taken to ensure that physicians perform their profession properly and that judges should have wide discretion in appointing medical experts. This accumulation of legal history reveals that judges must be courageous in making decisions without consulting an expert on case matters that can be understood in the ordinary course of life.

 The legal system of the Ottoman State is divided into two: the classical period and the post-tanzimat period. The sources and application of classical period Ottoman law have relatively unique characteristics. It is known that during the long period of the mentioned period, the state took serious steps to ensure justice. The provision of justice is too complex an issue that cannot be achieved only by judges, who are referred to as qadi. Many officials assist qadis during the trial. Experts also supported the judge while solving the case. The institution of expert existed in ancient times, in the Ottoman State and even in today; this information shows us that expert is indispensably important for the judicial organization. Experts played very important roles in ensuring justice in the classical period of the Ottoman State. Expert, in its simplest form, can be defined as a third party whose expertise is consulted when the subject of a legal dispute requires special and technical knowledge. If the dispute before the judge requires technical knowledge about health, medical personnel can be consulted as experts. This determination is valid in the Ottoman State as it is today. It should be noted that the number and variety of medical personnel providing medical intervention in the Ottoman State was wide. In this study, all people who provide medical intervention for treatment purposes or to prevent, determine or protect the disease are considered as physicians. Ottoman State was very meticulous in matters such as training physicians and practicing their profession. This study attempts to explain in what kind of cases the physicians have been seen as experts in the classical period of the Ottoman Empire, how they were appointed and the effects of their opinions on the stage of the case. While Qadı registers are our first-hand source, the Registries Records Mühimme Defterleri and other archival documents are used as the sources when needed. This study is relatively original, because it does not focus on experts or physicians. It underlines the physicians as experts. The results of the study are as follows: In the Ottoman judicial organization, physicians appear as viewing members, shuhudul hal members, litigant of consent record and experts roles. Qadıs have wide discretion to apply to a physician expert. Qadıs first decide on the need for professional knowledge of the dispute; then they applied to the opinions of physicians as experts. The central authority determined the expert physicians in the case of conflicts concerning the defective slave-concubine. The judges have appointed the physicians as experts who work in the Darushaifa or their own offices in the region. Qadıs did not apply to the medical expert in matters that could be understood by the ordinariness of life, even if the subject matter was a medical matter. Depending on the circumstances of the case, the judges applied to the physician in one of the cases related to the same subject while they could not apply to the ot-her. At this point, Qadıs were limited in the claims of leprosy and in the case of. The physicians were able to present their views in the presence of a member of the expedition, by sending their opinion or before the court. The physicians who expressed their opinion as experts before the court were able to become witness in the same case. Expert physicians were seen in following cases: murder, assault and battery, adultery, reject the religion claims, conflicts concerning the defective slave-concubine, the presence of leprosy or mental and neurological disorders. Other physicians were experts in determining the claim of non-standard unusual treatment. The medical opinions of the physicians have played an important role in the legal analysis and decision of the case by the judges. The opinion of the expert physician was not disputed. The experience of classical period Ottoman law reveals that measures should be taken to ensure that physicians perform their profession properly and that judges should have wide discretion in appointing medical experts. This accumulation of legal history reveals that judges must be courageous in making decisions without consulting an expert on case matters that can be understood in the ordinary course of life.

Makale detayları

Physicians as Experts in the Classical Period of the Ottoman Jurisdiction Law

Yazarlar:

Ahmet Kılınç

Yayıncı:

Erciyes University

Ana Başlıklar:

Hukuk (Diğer)

Dergi:

Erciyes Üniversitesi Hukuk Fakültesi Dergisi Vol.19 Issue 1, pp.287-333

Belge Tipi:

Makale

Yayın Tarihi:

4/2024

Belge Dili:

Türkçe

Document ID (Org No.):

2001316539

pISSN:

1306-3839

Physician

surgeon

kehhal (ophthalmologist)

expert

medicine

disease

mental and neurological disorders doctor (Bimarhaneci)

capable wo-men (kabil hatunlar)

lunatic

classical period

Ottoman State

Darushai-faTabip

hekim

cerrah

kehhal (göz hekimi)

ehl-i hibre

ehl-i vukuf

deva

hap

illet

Bimarhaneci

kabil hatunlar

cenun

bilirkişi

klasik dönem

Osmanlı Devleti

Daruşşifa

Sayı

Makale detayları

Yazarlar: Ahmet Kılınç

Yayıncı: Erciyes University

Ana Başlıklar: Hukuk (Diğer)

Dergi: Erciyes Üniversitesi Hukuk Fakültesi Dergisi Vol.19 Issue 1, pp.287-333

Belge Tipi: Makale

Yayın Tarihi: 4/2024

Belge Dili: Türkçe

Document ID (Org No.): 2001316539

pISSN: 1306-3839

Sayı

Yazarlar:

Ahmet Kılınç

Yayıncı:

Erciyes University

Ana Başlıklar:

Hukuk (Diğer)

Dergi:

Erciyes Üniversitesi Hukuk Fakültesi Dergisi Vol.19 Issue 1, pp.287-333

Belge Tipi:

Makale

Yayın Tarihi:

4/2024

Belge Dili:

Türkçe

Document ID (Org No.):

2001316539

pISSN:

1306-3839