Klasik Dönemde Osmanlı Huku

Araştırma Makalesi/Research Article Eskiyeni 44 (Eylül/September 2021), 385-408
Evolutionary Secularisation of the Ottoman Law in the Nineteenth Century:

Roots and Implications 
Miyase Yavuz Altıntaş
Dr. Öğr. Üyesi, Iğdır Üniversitesi (ROR ID: 05jstgx72)

İlahiyat Fakültesi İslam Hukuku Anabilim Dalı
Assist. Prof. Dr., Iğdır University, Faculty of Theology
Department of Islamic Law
Iğdır/Turkey
[email protected]
ORCID: 0000-0002-5338-3266
Evolutionary Secularisation of the Ottoman Law in the Nineteenth Century:

Roots and Implications
Abstract
In the world history, the nineteenth century witnessed globally major economic, politic, and
social changes. More importantly, their implications constitute today’s challenges particularly
for modern Muslim-majority states where the tension between state, religion and society has not
been settled. There is no doubt that looking at the past where the separation between sharī‘a and
state started clearly to appear serves for a better understanding of today’s struggle in locating
the role of sharī‘a in legal systems of modern Muslim-majority states. Many of them, i.e. the
Middle Eastern and some North African states are the successors of the Ottoman Empire. The
Ottomans ruled over continents for centuries thanks to their well-established governmental
policy and legal system. However, they were also obliged to introduce some remarkable changes
in social, political and legal spheres in the nineteenth century. The era is generally called as the
process of Ottoman modernization and secularisation referring to Tanzimat Edict and following
legal reforms. This study seeks to analyse the way Ottoman law has been transformed in the
nineteenth century, as well as its roots, challenges and implications. To this end, the paper offers
an answer to the questions as to whether secularisation of Ottoman law was evolutionary or
revolutionary, why it had to go through a process of secularisation, and to what extent classical
Ottoman system could serve this secularisation process. To address these inquiries, the study is
divided into two principle sections: the first part evaluates the classical Ottoman legal system and
its religious and non-religious characters, arguing that the Turkish state tradition with its influ-
ence on government and law making were in fact the changeable features of the Ottoman law.

Bu çalışma Osmanlı İmparatorluğunda Hukukun Sekülerleşmesi başlıklı yüksek lisans tezim esas alınarak hazırlanmış-
tır. / This article is extracted from my master thesis, Secularisation of Law in the Ottoman Empire (London/UK: SOAS
University of London, Faculty of Law and Social Sciences, MA Thesis, 2013).

İntihal Taraması/Plagiarism Detection: Bu makale intihal taramasından geçirildi/This paper was checked for plagiarism
Etik Beyan/Ethical Statement: Bu çalışmanın hazırlanma sürecinde bilimsel ve etik ilkelere uyulduğu ve yararlanılan tüm
çalışmaların kaynakçada belirtildiği beyan olunur/It is declared that scientific and ethical principles have been followed
while carrying out and writing this study and that all the sources used have been properly cited (Miyase Yavuz Altıntaş).
Geliş/Received: 28 Haziran/June 2021 | Kabul/Accepted: 05 Eylül/September 2021 | Yayın/Published: 20 Eylül/September 2021
Atıf/Cite as: Miyase Yavuz Altıntaş, “Evolutionary Secularisation of the Ottoman Law in the Nineteenth Century: Roots
and Implications = Osmanlı Hukukun Ondokuzuncu Yüzyılda Evrimsel Sekülerleşmesi: Kökler ve Etkileri”, Eskiyeni 44
(Eylül/September 2021), 385-408. https://doi.org/10.37697/eskiyeni.959071
CC BY-NC 4.0 | This paper is licensed under a Creative Commons Attribution-NonCommercial License
Eskiyeni 44 (Eylül/September 2021)

386 • Altıntaş, Osmanlı Hukukun Ondokuzuncu Yüzyılda Evrimsel Sekülerleşmesi: Kökler ve Etkileri
The second part examines the process of secularisation of law from the pre-Tanzimat period to
the end of the Ottoman Empire. This part reveals that secularisation of the Ottoman law was of
evolutionary character, and that reforms were introduced thereafter for practical purposes, i.e.
meeting contemporary needs and necessities, and not for the sake of philosophical and political
considerations. However, these attempts led to a gradual secularisation of the Ottoman law, and
further culminated in a revolutionary approach in the republican era.
Keywords
Islamic Law, Ottoman Law, Codification, Tanzimat, ‘Urf, ‘Urfī Law, Qānūn
Osmanlı Hukukun Ondokuzuncu Yüzyılda Evrimsel Sekülerleşmesi: Kökler ve Etkileri

Öz
Ondokuzuncu yüzyıl dünya tarihinde küresel boyutta esaslı ekonomik, siyasi ve sosyal değişiklik-
lere şahitlik eden bir yüzyıl olmuştur. Daha da önemlisi bu gelişmelerin etkileri günümüzün
sorunlarını -özellikle din, devlet ve toplum arasındaki gerilimli ilişkinin devam ettiği modern
Müslüman-çoğunluklu ülkeler için- oluşturmaktadır. Gerilimin çıkış noktasını yani geçmişte
şeriat ve devlet ayrımının net bir şekilde gözükmeye başladığı dönemi incelemek bugün şeriatın
modern Müslüman-çoğunluklu ülkelerin hukuk sistemlerindeki rolünü belirlemede yaşanan
sıkıntıları anlamaya şüphesiz katkı sağlayacaktır. Bugün bu ülkelerin birçoğu -Ortadoğu ve bazı
Kuzey Afrika ülkeleri olmak üzere- Osmanlı İmparatorluğunun mirasçısı konumundadır. Osmanlı
İmparatorluğu sahip olduğu köklü devlet yönetme geleneği ve hukuk sistemi sayesinde asırlarca
kıtaları aşan bir alanda hüküm sürmüştür. Fakat ondokuzuncu yüzyılda sosyal, siyasal ve hukuk
alanlarında bazı önemli değişikliklere gitmeye gerek duyulmuştur. Nitekim Tanzimat Fermanı ve
akabinde yapılan reformları işaretle bu süreç genellikle Osmanlı modernleşmesi ve sekülerleşme-
sinin yaşandığı dönem olarak kabul edilmektedir. Bu çalışma Osmanlı hukukunun ondokuzuncu
yüzyılda nasıl bir dönüşüme uğradığını, bu dönüşümün köklerini, süreçte karşılaşılan zorlukları
ve etkilerini tahlil etmeyi amaçlamaktadır. Bu doğrultuda, Osmanlı hukukunun sekülerleşmesi-
nin evrimsel bir nitelikte mi yoksa devrimsel bir nitelikte mi olduğu, neden böyle bir sürecin
yaşandığı ve klasik Osmanlı hukuk sisteminin bu sürece ne denli katkı sağladığı gibi sorulara
cevap aranmaktadır. Bu sorulardan hareketle çalışma iki ana bölüme ayrılmıştır. Çalışmanın ilk
kısmı klasik Osmanlı hukuk sistemini, dini ve dini olmayan özelliklerini incelemektedir. Bu kı-
sımda, Türk devlet geleneği ve onun idare ve hukuk sistemi üzerindeki etkilerinin Osmanlı huku-
kunun değişime açık özelliklerini teşkil ettiği ifade edilmektedir. Çalışmanın ikinci kısmı Tanzimat
öncesi dönemden başlayarak Osmanlı İmparatorluğunun ortadan kalkışına kadar sekülerleşme
sürecini ele almaktadır. Bu bağlamda Osmanlı hukukunda sekülerleşmenin evrimsel bir nitelikte
gerçekleştiği ve yapılan reformların teorik ve siyasi bir alt yapıdan uzak olarak o dönemki ihtiyaç
ve zorunlulukları karşılamak üzere yapıldığını ortaya koymaktadır. Fakat bu girişimler Osmanlı
hukukunun kademeli olarak sekülerleşmesini beraberinde getirmiş, nitekim süreç Cumhuriyet
döneminde devrimsel bir yaklaşımın benimsenmesi şeklinde neticelenmiştir.
Anahtar Kelimeler
İslam Hukuku, Osmanlı Hukuku, Kodifikasyon, Tanzimat, Örf, Örfi Hukuk, Kanun
Introduction
Tanzimat (Reorganization) Period (1839-1876) is generally referred to as the be-
ginning of modernization and secularisation in the Ottoman legal system.1 Legal
1
There is no doubt that the concept of ‘secularisation’ is a contentious one. There are various secularisa-
tion theories and different studies on the topic in relation to state, society, and religion, thus making
www.dergipark.org.tr/tr/pub/eskiyeni
Altıntaş, Evolutionary Secularisation of the Ottoman Law in the Ninete-enth Century: Roots and Implications • 387
reforms in the Tanzimat period, both as an action and as a discourse, served as basis
of reform attempts in the legal field until the demise of the Ottoman Empire in 1922.
For this reason, scholarly accounts often consider Tanzimat to define the period from
1839 to 1922.2 However, Tanzimat Period is not only about the latter attempts, but
also about former efforts that facilitated legal reforms. Here, secularisation of Otto-
man law may be considered as a ‘process’ which has its origin in the classical Otto-
man legal system, and extends to the early years of the Turkish Republic.3
Tanzimat reforms may not be isolated from reformist attempts of previous centu-
ries. On the Tanzimat reforms, two important points should be underlined: first, Tan-
zimat was not a novel notion, and that the Tanzimat Edict (ferman, unilaterally declared
by the Sultan) was a continuation of classical Kanunname tradition in the Ottoman
Empire; second, a few attempts towards legal reform in the reign of the Mahmud II
(particularly some economic, administrative and military reforms introduced in his
time and in the time of his predecessor Selim III) laid the ground for more comprehen-
sive reforms in the Tanzimat period. Moreover, socio-cultural and economic change
with the beginning of the 16th century brought along legal reforms in due course, and
ultimately resulted in the establishment of the Republic of Turkey.4
Legal reforms in the Tanzimat period, while being formally introduced in Otto-
man legal system, have their origins in the Turkic traditions and customs on gov-
ernment, administration and law-making that have been built and devised over
centuries. In this context, Mecelle (1876) and Ottoman Law of Family Rights (1917) are
the concept approached by several research fields i.e. politics, sociology, philosophy and religion. This
is why a framework on the usage of the concept is a necessity. By refraining itself from any ideological
perceptions, with ‘secularisation of the Ottoman law’ this study basically means removing sharī‘a from the
center of the Ottoman legal system. –‘Modernization’ is also rarely used within this context in the study. –
In other words, it adopts Wilson’s approach defining secularisation as “the process whereby religious
thinking, practice and institutions lose social significance”. Bryan R. Wilson, Religion in Secular Society, ed.
by Steve Bruce (UK; Oxford: Oxford University Press, [1966] reissued 2016), 6. Similar, albeit, more detailed
explanation on its being decreasing impact of not just religion but also all supernatural doctrines in shap-
ing daily life is provided by Ertit. As he states secularisation is a sociologic concept unlike laicism (Fr.
laïcité), which is a political concept meaning specifically the relation between state and religion and their
separation. Volkan Ertit, Sekülerleşme Teorisi (Ankara: Liberte Yayınları, 2019), 47, 86-87. The concept of
‘laïcité’ is only used to express the Republic of Turkey’s ideology within this study. By using ‘evolutionary’
and ‘revolutionary’, this study implies the essence of the process by seeking to comprehend how sharī‘a
lost its previous position in the Ottoman legal thinking, practice and institutions.
2
Ahmet Mumcu, “Tanzimat Döneminde Türk Hukuku”, Adâlet Kitabı, ed. Halil İnalcık et al. (Ankara:
Kadim Yayınları, 2012), 207.
3
Reading legal changes in the late Ottoman by merely looking at Tanzimat period causes negligence of
the multi-layered structure of the Ottoman legal system and simplification of the process. In many
studies, legal changes and secularisation of the Ottoman legal system are considered to be started in
the middle of the nineteenth century with adoption of European codes. See, for example, Noel J. Co-
ulson, A History of Islamic Law (Edinburgh: Edinburgh University Press, [1964] 1978); Aharon Layish, “The
Transformation of the Sharīʿa from Jurists' Law to Statutory Law in the Contemporary Muslim World”,
Die Welt des Islams 44/1 (2004), 85-113; Herbert J. Liebesny, “Religious Law and Westernization in the
Moslem Near East”, The American Journal of Comparative Law 2 (1953), 492-504.
4
Kemal Karpat, “The Transformation of the Ottoman State, 1789-1908”, International Journal of Middle East
Studies 3/3 (1972), 244.

primary examples to support this argument which remained in effect and use in
some Middle Eastern states such as Lebanon, Jordan and Palestine up until recent
decades.
To address the main arguments, this study first takes a look at the structure of
the Ottoman legal system, and evaluates the foundations of secularisation of law in
the 19th century. This part provides a general understanding of the structure of the
legal system in the Ottoman Empire that serves as the basis of legal reforms in the
Tanzimat era. The present study intends not only to provide essential background
information but also to comprehend how this legal system has been secularized and
how it has evolved from the classical era to the legal reform era. Thus, then, it traces
the legal reform process from the pre-Tanzimat period to the fall of the Ottoman
Empire, and assesses the impact of these reforms. To this end, track of law and legal
attempts are examined, and the factors affecting the development and transfor-
mation of law are critically evaluated. Based on its findings, the study concludes that
the Ottoman legal system was not purely built upon religion, and that some func-
tional secular features also had some impact. Thus, Tanzimat reforms in a sense were
not completely against the tradition. Yet, they were linked to previous develop-
ments in a number of fields, and incrementally influenced secularisation of the Ot-
toman legal system, being reappeared in a stronger form of secularisation, laïcité, in
the Republic of Turkey.
1. Bases of the Secularisation Process in the Classical Ottoman Legal System

The present section introduces the secular feature and the base of Ottoman legal
system by underlining the co-existence of shar‘ī law and ‘urfī law, and subsequently
explains the Turkic state tradition, citing examples to indicate its influences on Ot-
toman legal system; and lastly this section evaluates the characters of the Ottoman
legal system and their impacts on law reforms in the 19th century.
1.1. Co-existence of the Shar‘ī Law and the ‘Urfī Law

Islam was the formal religion and the Ḥanafī School of law was the formal madh-
hab of the Ottoman Empire.5 However, in terms of civil rights, followers of other
religions were free to abide by the rules of their respective religion. Additionally,
they were able to practice their own law in reference to family matters and succes-
sion, and they were free to elect own head of the community.6 Regarding other sects
in Islam, there was not a strict protocol to follow until the 16th century. Application
of other sects’ opinion in the courts can be seen in some cases. For example, in the
15th century in Bursa, the Ḥanafī qāḍī (judge) of Bursa appointed the Shāfiʿī delega-
5
See for the adoption of Ḥanafī madhhab as the official school of law and the formation of the Ottoman
legal system between the fifteenth and eighteenth centuries, Guy Burak, The Second Formation of Islamic
Law: The Hanafi School in the Early Modern Ottoman Empire (Cambridge University Press, 2015).
6
Cevdet Küçük, “Osmanlı İmparatorluğu’nda Millet Sistemi ve Tanzimat”, Tanzimat Değişim Sürecinde
Osmanlı İmparatorluğu, ed. Halil İnalcık-Mehmet Seyitdanlıoğlu (İstanbul: Türkiye İş Bankası Kültür Ya-
yınları, 2012), 544.
ted judges due to Shāfiʿī opinion was more convenient on a certain legal dispute.7
Since the 16th century, the Ḥanafī sect was strictly implemented in Anatolia and
Rumelia, mostly populated by Ḥanafī followers. In other areas of the empire,
however, depending on the sectarian majority, the Ottoman Empire appointed a
judge according to their sect with a chief Ḥanafī qāḍī.
As the formal religion of the state, Islam was the main source of law-making in
the Ottoman Empire. Sources of the shar‘ī law were classical fiqh books and fatwās.
Technically, fatwā as an opinion of muftī (juristconsult) is not a source of jurisdiction.
However, fatwā influenced the Ottoman judicial system in two respects. First, if there
was a fatwā dealing with the case, qāḍī (judge) should consider that fatwā because
otherwise decision could be appealed at the Dīvān-ı Humāyūn (imperial council).
Second, in some cases, sultan asked fatwā from shaykh al-Islam (a chief qāḍī and muftī)
on a specific matter and then with the ratification of this fatwā by the sultan, it
would become the law. In other cases, shaykh al-Islam offered fatwās on some issues
to the Sultan, and similarly, with the ratification by the Sultan, these would become
the laws.8 A remarkable example of this sort of practice is Shaykh al-Islam Ebu’s-suūd
and his corpus of fatwās, al-Ma‘rūzāt. Codification of fatwās is a crucial attempt thro-
ugh the legal reforms. Thus, Aydın argues that this practice was pioneer and prepa-
rative for Mecelle and other codification movements by signaling a transformation in
Islamic law from the form of a jurist law to the form of a statutory law.9
The ‘urfī law coexisted with the shar‘ī law in the Ottoman Empire, with the ‘urfī
law being formed by decrees and edicts of the Sultan since initial times of the Empi-
re.10 However, the ‘urfī law was recognized dominant position in the Ottoman legal
system by Sultan Mehmed, the Conqueror. Sultan Mehmed utilized the ‘urfī law to
systematise and build state institutions. He promulgated two important kanunnames
(code of laws), one about state organisation and the other about administrative,
finance and criminal issues. These codes systematized formal journal of law by sepa-
rating chapters and sections.11
Additionally, Sultan Suleyman, the Lawgiver, placed strong emphasis upon the
‘urfī law. During his reign, Shaykh al-Islam Ebu’s-suūd connected the shar‘ī law to the
‘urfī law that served as administrative law of the Empire.12 To this end, Ottoman cash
waqf (endowment) could be considered as a controversial example. Ebu’s-suūd rec-
ognized the legality and legitimacy of the cash waqfs because of their acceptance in
7
Mehmet Akif Aydın, Türk Hukuk Tarihi (İstanbul: Hars Yayınları, 2007), 97.
8
Aydın, Türk Hukuk Tarihi, 102.
9
10
See for details, Halil İnalcık, “Osmanlı Hukukuna Giriş Örfi-Sultani Hukuk ve Fatih’in Kanunları”, Adâlet
Kitabı, ed. Halil İnalcık et al. (Ankara: Kadim Yayınları, 2012), 79-82.
11
İnalcık, “Osmanlı Hukukuna Giriş”, 83-84.
12
Dora Glidewell Nadolski, “Ottoman and Secular Civil Law”, International Journal of Middle East Studies 8/4
(1977), 520-521. Colin Imber examines how Shaykh al-Islam Ebu’s-suūd brought ‘urfī law into conformity
with shar‘ī law by looking at numerous areas. He particularly links Ebu’s-suūd’s achievement with his
corpus of fatwās. Colin Imber, Ebu’s-su‘ud: The Islamic Legal Tradition (Stanford, California: Stanford Uni-
versity Press, 1997).

the society.13 Such cases of the ‘urfī law were not considered as opposing to the ba-
sics of Islamic law, with reference to the principles of maṣlaḥa (public interest),
istiḥsān (juristic preference) and siyāsa al-shar‘iyya (regulatory instruments of sharī‘a)
as source of justification.
Initially, there was not clear separation between the shar‘ī law and the ‘urf’ī law,
yet, under common practices, private law matters, regulated in detail by Islamic law
such as family law, succession, law of property, law of obligations and commercial
law were broadly covered by the shar‘ī law. However, the ‘urfī law was also imple-
mented on those matters as needed; for example; some ‘urfī regulations were given
priority on use and transfer of demesne (mīrī land) in the field of law of property and
land law.14 In addition to organisation of state affairs, and many varieties of the ‘urfī
taxes for financial gain, criminal law was mostly regulated by the ‘urfī law based on
discretionary act of ulu’l-amr (those in authority), known as ta‘zīr. This system was
result of a synthesis of old Turkish state tradition and the practices of previous Isla-
mic states such as Umayyad, Abbasid, Seljuk and Mamluk.15
In short, Islam was dominant as the source of legitimacy in the Ottoman Empi-
re. Therefore, there was not any inclination to separate religion and state affairs.
On the contrary, the principle of Din-ü-Devlet (religion and state) indicates that
religion and state affairs cannot be separated in the Ottoman Empire. At the same
time, this principle also underlines the significance of the idea of ‘state’ in the
Ottoman mentality.16 Thus, as noted before, maṣlaḥa was one of the main explana-
tions for the ‘urfī law practices. According to Aral, state was dominant in relations
between religion and state.17 Hence, ‘the interest of the state’ was the appearance
of maṣlaḥa principle.
1.2. Tradition of Turkic State Government

Turkish state administration tradition, associated with Turkic and Iranian states
in Central Asia, had also visible impact on Ottoman legal system which can be seen
not just on state government practices and state institutions, but also on the unders-
tanding of law and justice.18 Many specific examples might be addressed here regar-
ding the tradition of Turkic state government influence on the Ottoman Empire, but
13
Halil İnalcık, Osmanlı’da Devlet, Hukuk, Adalet (İstanbul: Eren Yayınları, 2005), 40; See for the debate on
legality of Ottoman cash waqfs, Jon E. Mandaville, “Usurious Piety: The Cash Waqf Controversy in the
Ottoman Empire”, International Journal of Middle East Studies 10/3 (1979), 289-308.
14
15
16
İnalcık, Osmanlı’da Devlet, 42.
17
Berdal Aral, “The Idea of Human Rights as Perceived in the Ottoman Empire”, Human Rights Quarterly
26/2 (2004), 456.
18
Prominent Turkish historian Halil İnacık especially highlights and shows this point in his various
valuable works, such as Osmanlı’da Devlet, Hukuk, Adalet and “Osmanlı Hukukuna Giriş Örfi-Sultani Hu-
kuk ve Fatih’in Kanunları”. The book Adâlet Kitabı is also dedicated to reveal Turkic state tradition, un-
derstanding of law and justice, and their influence in the Ottoman legal system. The book includes
works of different leading scholars alongside İnalcık.
I would like to emphasise two crucial examples, ‘circle of justice’ and qānūn, due to
their distinctive influence on Ottoman law.
The term, ‘circle of justice’ was defined as “No power without troops, no troops
without money, no money without prosperity, no prosperity without justice and
good administration” by the Ottomans,19 thus suggesting that justice and good ad-
ministration is central to the Ottoman mentality. In this approach, non-Islamic ele-
ments and some practices contrary to the shar‘ī law can be observed in the Ottoman
implementations. For example, while Islamic law dictates that certain qualifications
have to be met in order to become ulu’l-amr, the Ottoman practice entailed mem-
bership in the Ottoman dynasty was the prime requirement.20 Another well-known
case is fratricide. Murder without lawful base is clearly against the teachings and
tenets of Islam21 but it was practiced by Ottoman sultans to protect the state.
Tradition of qānūn was a result of this approach on the state and good admi-
nistration. The rule legislated by sultan was named qānūn and ḍawābiṭ. Prominent
Ottoman historian Tursun Beg explains the sultan’s authority on legislation, sta-
ting that sultan’s orders for the sake of world order (nizām-ı ālem) is called siyāset-i
sultānī (politic of sultan) and yasāq-i pādishāhī (ban of sultan), known as ‘urf.22 Re-
cognition of the Sultan’s authority as law-maker, in other words, refers to executi-
ve power. The concept ‘world order’ (nizām-ı ālem) refers to social balance, and
highlights the exclusive position of the state, further suggesting that it is a duty
for the sultan to legislate rules, in addition to the shar‘ī law.23 As İnalcık noted
there was de facto separation of power and that there was place for civil law along-
side the shar‘ī law.24 Figures as serving as the authority of executive power were
referred to as ahl al-‘urf (people of ‘urf) in the Ottoman system. The other part of
the system included ahl al-shar (people of shar‘ī law).25 This distinction is important
because, through legal reforms, the ahl al-‘urf gradually dominated the Ottoman
legal system, and the association between the ahl al-‘urf and the ahl al-shar, in other
words the ‘urfī law and the shar‘ī law, ultimately resulted in the complete exclusion
of the ahl al-shar in Turkey.
Kanunnames collocation of decrees and edicts of sultan, were formally drafted
in order to ensure the rule of law and introduce rights and duties of people. Regar-
ding the drafting of kanunname, supervision and ratification of shaykh al-Islam is an
important point to underline as it points out the root base of legitimisation in the
Ottoman Empire. As the chief religious authority, shaykh al-Islam’s control over non-
religious rules ensures that they are translated into pieces of Islamic law. Substanti-
19
Linda T. Darling, A History of Social Justice and Political Power in the Middle East: the Circle of Justice from
Mesopotamia to Globalization (New York: Routledge, 2013), 2.
20
Aral, “The Idea of Human Rights”, 465.
21
Qur’ān; al-Isrāʾ 17/33, al-Nisāʾ 4/92-93, al-Furqān 25/68.
22
İnalcık, “Osmanlı Hukukuna Giriş”, 74.
23
24
İnalcık, Osmanlı’da Devlet, 41.
25

ally, shaykh al-Islam was an officer of the state who did not have any powers other
than those prescribed by the political authority. This was the way of legitimisation of
secular features in the Ottoman legal system. In this process, some qānūns were re-
jected by shaykh al-Islam in some cases. For example, Shaykh al-Islam Ebu’s-suūd ob-
jected to a qānūn in capitulation which recognized the testimony of non-Muslims
and non-Ottomans, arguing that “there is no decree of sultan on unlawful thing”.
But on the other hand, in some cases qānūns could be against the shar‘ī law. For
example, there were hard penalties in excess of Islamic boundaries based on aut-
hority of ta‘zīr.26 This control practice and Islamic legitimisation is an important
point to be considered in the analysis of legal reforms. The first serious reform
attempt, the Tanzimat Edict, emphasised Islam, and the shar‘ī law in many instan-
ces, but İnalcık claims that “clarification of eligibility to the sharī‘a in the Tanzimat
Edict was pro forma Ottoman traditionalism. In so doing, sultan considered his
religious authority as Caliph (a supreme religious and political leader), as well as
the piety of the people, and particularly the class of ʿulamāʾ”.27 Moreover, the Ot-
toman constitution of 1876 clearly states that Islam is the religion of state and that
the sultan was the Caliph and defender of Islam. This remained the case until the
removal of the statement, ‘State religion is Islam,’ from the 1924 constitution un-
der the amendment made in 1928.
Ottoman legal system was neither purely Islamic nor secular but it represented a
functional synthesis between religious and non-religious factors. It can be argued
that Ottomans implanted the old Turkic state government practices and ideas in
their system, and used them effectively. Between the ‘urfī law and the shar‘ī law, the
question of which one was more dominant or how the ‘urfī practices were included
within Islamic framework put aside, the impact of recognition of secular power in
rule making and qānūn tradition on the late 19th century Ottoman legal thinking
cannot be overlooked.
1.3. Islamic or Quasi-Secular State

The Ottoman legal system accommodated multiple aspects that nourishes it for
centuries and enables to rule on various regions and countries. Regarding Islamic
perspective, existence of ‘urf (custom) as a source of uṣūl al-fiqh (Islamic legal metho-
dology) was the main principle for the Ottoman ‘urfī law practices. However, in
terms of Islamic legal methodology, the position of the ‘urf is controversial. It is not
specified as a separate legal source in the classical uṣūl al-fiqh literature.28 The ‘urf is
divided into two types by jurists, i.e. “‘urf that was prevalent during the time of the
Prophet, and the ‘urf that emerged later or that was found to be operative in conque-
26
27
Halil İnalcık, “Sened-i İttifak ve Gülhane Hatt-ı Hümâyûnu”, Tanzimat Değişim Sürecinde Osmanlı İmparator-
luğu, ed. Halil İnalcık-Mehmet Seyitdanlıoğlu (İstanbul: Türkiye İş Bankası Kültür Yayınları, 2012), 106.
28
İbrahim Kafi Dönmez, “Örf”, Türkiye Diyanet Vakfı İslâm Ansiklopedisi (İstanbul: TDV Yayınları, 2007),
34/89.
red countries”.29 The jurists agreed upon the authority of the first type of ‘urf while
the latter was controversial when it contradicted the principles of Islamic law. The-
refore, Othman argues that the ‘urfī practices in the Ottoman had no binding force
according to Islamic legal theory.30 In addition, Levy claims that the ‘urf was used as
an instrument of the executive power where the sharī‘a is theoretically supreme in
most of the Muslim world.31 Thus, it is claimed that the ‘urf appeared as a legal sour-
ce from 12th century on, and it reached its peak with the Mecelle.32 Yet, Dönmez emp-
hasises that classical jurists consciously did not include the ‘urf as a legal source due
to difficulty of technical explanation but it should be noted that the ‘urf is used with
istihsān (juristic preference) and istiṣlāḥ (to deem proper) methods through its rela-
tion with ra’y (personal opinion), hājat (need), zarūrāt (essentials) and maṣlaḥa consi-
derations.33 Moreover, rational applications in the scope of the siyāsa al-shar’iyya are
considered as a form of ijtihād (personal reasoning). Apaydin notes that although
ijtihād practices of sultan and other high level political figures (i.e. ulu’l-amr, amīr al-
mu’minīn, imām) are not shar‘ī ijtihād but they are ‘urfī ijtihād, and that for this reason,
they should not be interpreted as secular.34
However, contemporary studies on Ottoman law tend to state that there are so-
me secular considerations and aspects in the Ottoman legal system. The main argu-
ments in these studies refer to the domination of the state in its relation with reli-
gion, and to the existence of the tradition of qānūns. İnalcık argues that Ottomans
developed a legal system beyond sharī‘a in consideration of the interest of the state.
He argues that the old Turkic state tradition was keystone of the Ottoman system.35
The most prominent old Turkic state tradition, qānūns of the Ottomans, are conside-
red as secular legislation in many respects by Layish.36 Moreover, Liebesny claims
that “Islamic law never had a truly all-inclusive application in the Islamic countries.
Secular legislation had developed, especially in the Ottoman”.37 Rather than thinking
qānūn and sharī‘a as two separate entities, one should remark the interplay between
them. Burak’s recent work draws attention to reconciliation between dynastic law
and Islamic law following the invasions of the Mongols in the region in order to
reconstruct socio-political structure in society. He even argues that the Ḥanafī
School was reshaped during this process calling the Ottoman period the Second For-
mation of Hanafi law.38
29
Mohammad Zain bin Haji Othman, “Urf as a source of Islamic Law”, Islamic Studies 20/4 (1981), 345.
30
Othman, “Urf”, 348.
31
Reuben Levy, The Social Structure of Islam (Cambridge: Cambridge University Press, 1965), 258.
32
Gideon Libson, “On the Development of Custom as a Source of Law in Islamic Law”, Islamic Law and
Society 4/2 (1997), 155.
33
Dönmez, “Örf”, 92.
34
H. Yunus Apaydn, “Siyaset-i Şer’iyye”, Türkiye Diyanet Vakfı İslâm Ansiklopedisi (İstanbul: TDV Yayınları,
2009), 37/301.
35
36
Layish, “The Transformation of the Sharīʿa”, 88.
37
Liebesny, “Religious Law and Westernization”, 496.
38
Burak, The Second Formation of Islamic Law.

Another aspect of the Ottoman legal system is that it accommodated legal plura-
lism and inter-religious peace. Ottoman Millet system recognized legal freedom on
personal law matters to Christian and Jewish communities, which is considered
commendable even in contemporary standards. This system recognized broad liber-
ties to the minorities in the Ottoman Empire regarding their life styles and social and
religious customs. Ottoman experience is argued to be more humanistic than many
of its contemporaries and that there are significant lessons to present societies from
this practice.39 Moreover, Barkey argues that the Ottoman Empire is an incisive good
case against Huntington’s ‘clash of civilizations’ by adducing the Millet system. Her
remarks suggest that the Ottoman practice of Millet system refutes Huntington’s
work that rests on “the false assumption of the incompatibility of religious units and
a false reading of history”.40 In addition, due to their pluralist and tolerant applicati-
ons, for instance protection and welcome of the Jews of Spain in 1492 in Granada, the
Ottomans are seemed to be frankly successful on the issue of human rights protec-
tion.41 Citing the examples above, instead of stating that the Ottoman Empire was an
Islamic state, Riedler refers to it as quasi-secular,42 and Bottoni prefers to define it as
“a sort of confusion between theocracy, Caesaro-papism and confessionism”43. As a
result of these different approaches on the characteristic of the Ottoman system it
can be argued that this mixed outlook of Ottoman law and its secular aspects could
have made legal reforms acceptable at least in initial attempts. Thus, the Tanzimat
Edict and legal reforms did not meet serious oppositions. Critical discussion about
the way of Ottoman modernization and search for a new methodology to accommo-
date the uṣūl al-fiqh started after the Second Constitutional era, but they did not
make difference, and secularisation process reached the peak in republican Turkey.
It is possible to argue that the existence of the ‘urfī law and its effective use, the
tradition of qānūn and kanunname, and the understanding of siyāsa al-shar’iyya could
be considered facilitating features in the Ottoman legal system for reforms, at least
39
İhsan Yılmaz, “Diversity, Legal Pluralism and Peaceful Co-Existence in the Ottoman Centuries”, The
Ottoman Mosaic: The Preservation of Minority Groups, Religious Tolerance, Governance of Ethnically Diverse Socie-
ties, ed. Kemal Karpat-Yetkin Yildirim (US: CUNE Press, 2010), 97-98.
40
Karen Barkey, “Islam and Toleration: Studying the Ottoman Imperial Model”, International Journal of
Politics, Culture, and Society 19/1-2 (2005), 17-18.
41
42
Florian Riedler, Opposition to the Tanzimat State Conspiracy and Legitimacy in the Ottoman Empire 1859-1878,
(London/UK: SOAS University of London, PhD Thesis, 2003), 13.
43
Rossella Bottoni, “The Origins of Secularism in Turkey”, Ecclesiastical Law Journal 9/2 (2007), 177. The
term caesaro-papism is explained as “part of Weber’s political sociology and is used to indicate a distinct
kind of rulership, namely that of a secular ruler who has total power over the church. Caesaro-papism
entails the complete subordination of priests to secular power, and it essentially means that church
matters have become part of political administration”. Richard Swedberg, The Max Weber Dictionary: Key
Words and Central Concepts (Stanford, California: Stanford Social Sciences, 2005), 22. The concept confessi-
onalism refers to the system in which “citizens are classed according to religious affiliation or confes-
sion. It is equivalent to communitarianism but more focused on the religious foundation of commu-
nity”. John Donohue, “Changing the Lebanese Constitution: A Postmodern History”, Cardozo Law Review
30 (2008-2009), 2512.
they may be considered as a bridge between classical period and modern period. The
main goal in Tanzimat reforms was to stop the entire state system from falling down.
It should also be noted that the first codifications or other modern attempts were
about administrative, militarily or criminal issues. Regarding non-Muslim rights, in
the Millet system, members of other religions were entitled to a peaceful life and to
exercising extensive civil rights recognized by the state. This means that the reorga-
nization, amendment, law making on some particular issues relevant to the state
government, to the idea of preserving state interest, and to the principle of recogni-
zing certain rights for the minorities were not unique to the Tanzimat period.
As emphasised before, for the sake of legal stability, legal reforms were first int-
roduced to ensure strict adherence to the Ḥanafī School in the 16th century, also
leading to the decline of the ‘urf’ī law as a major source of law-making,44 and coinci-
ding with the retreat of the Ottoman state as a major power. In addition to the social
and cultural changes in the continent and their impacts on the Ottoman state and
society, the decision to stop employing the ‘urfī law meant a diminished capacity of
the Empire to respond to the changing needs of the time. Therefore, it was not surp-
rising to see that Ibn ʿĀbidīn (d.1836), the last classical Ḥanafī jurist in the Ottoman
Empire, was the first jurist who called for legal reforms by highlighting ‘urf shortly
before the introduction of broad legal reforms.45
2. The Secularisation Process of the Ottoman Law

This section examines the Ottoman legal reforms in the 19th century and early
20 century. To better understand the origins of fundamental legal reforms between
th
1839 and 1922, pre-Tanzimat period is briefly analyzed. The term Tanzimat reforms, as
noted earlier, could be used to refer to the period from the beginning of serious legal
reform (1839) to the end (1922). Hence, the Tanzimat Edict (Gülhane Hatt-ı Hümāyunu,
1839) and subsequent legal attempts were bases for the entire reform period. Never-
theless, this reform period is separated into three periods, pre-Tanzimat, Tanzimat
(1839-1876) and post-Tanzimat (1876-1922), in order to identify the gradual seculari-
sation of the Ottoman legal system.
2.1. Pre-Tanzimat Period

Major reforms were introduced in the Ottoman legal system in the 19th and in
early 20th centuries, marked by the innovations prescribed in the Tanzimat Edict,
often cited as the start of modernization, westernisation and secularisation move-
ments in the Empire. However, these movements cannot be isolated from the social,
cultural and historical facts, and steps taken in the 17th and 18th centuries. Particular
measures have been taken to address major social and economic problems that the
44
Mehmet Akman, “Örf”, Türkiye Diyanet Vakfı İslâm Ansiklopedisi (İstanbul: TDV Yayınları, 2007) 34/93.
45
See Wael B. Hallaq, “A Prelude to Ottoman Reform: Ibn ‘Abidin on Custom and Legal Change”, Histories
of the Modern Middle East: New Directions, ed. Israel Gershoni et al. (Boulder & London: Lynnie Rienner
PuH, 2002), 37-61.

state organization faced, often in forms of technological advance. More serious and
influential attempts were made during the reign of Selim III (1789-1807) and Mah-
mud II (1808-1839). This period is particularly important in terms of clarifying the
relationship between the religion and the state. Selim III was known for his reformist
agenda and for his Western orientation that he was portrayed as pro-European by
the ʿulamā.46 Amid tensions and objections to his reforms, Selim III was deposed by a
fatwā of shaykh al-Islam subsequent to a major reform attempt by which he decided to
abolish the existing army structure and replace it with a new one, known as Nizām-ı
Cedīd (The New Army). The objection by the clerics had something to do with their
tacit alliance with the traditional army, and not with religious considerations.47 Ad-
ditionally, the clergy was, in this period, very much corrupted to pay attention to
their personal privileges and interests. For instance, a report indicates that Shaykh
al-Islam Feyzullah Efendi (d. 1115/1703), exercising his influence on the administra-
tion, appointed his son Fethullah Efendi an heir to the position of shaykh al-Islam.48
Thus, the disorder and breakdown in the ʿulamā class that was seen starting from the
second half of the 16th century eventually resulted with Tarīk-i İlmiyye’ye Dâir Ceza
Kānunnamesi which was promulgated in 1938 by Sultan Mahmud II to prevent cor-
ruption, bribery and inappropriate behaviours in the ʿulamā class.49
Mahmud II mindfully dealt with these powerful groups, abolishing the Janissa-
ries in 1826 and restricting the power of the clergy in a number of fields. It should
be recalled, however, that despite bold attempts towards reforms, Islam was
always referred to as source of law-making. Sultan Mahmud’s reform initiatives
also addressed many issues in other areas as well. The abolishment of the Janissa-
ries, cited as Vak‘a-i Hayriyye (The Auspicious Incident), is considered to be a tur-
ning point for the reform movement.50 In fact, Mahmud II’s reforms served as
foundations for the Tanzimat Edict and subsequent reforms. In this sense, it may be
argued that with transformation of the authority of shaykh al-Islam into a new
department (Bab-u Meşihat), the restriction of influence of qādī through introduc-
tion new institutions such as municipality and ministries, ilmiyya (the clergy) class
was replaced by kalamiyya class (bureaucrats) in the administration. One incident
symbolizes this transition in which Mahmud II tore up a cahier of warning by the
46
Sina Akşin, “1839’da Osmanlı Ülkesinde İdeolojik Ortam ve Osmanlı Devleti’nin Uluslararası Durumu”,
Tanzimat Değişim Sürecinde Osmanlı İmparatorluğu, ed. Halil İnalcık-Mehmet Seyitdanlıoğlu (İstanbul: Tü-
rkiye İş Bankası Kültür Yayınları, 2012), 141.
47
Nazım İrem, “Klasik Osmanlı Adalet Rejimi ve 1839 Gülhane Kırılması”, Adâlet Kitabı, ed. Halil İnalcık et
al. (Ankara: Kadim Yayınları, 2012), 292.
48
Ejder Okumuş, Türkiye’nin Laikleşme Serüveninde Tanzimat (İstanbul: İnsan Yayınları, 1999), 185. See for
Feyzullah Efendi’s biography and career path which also sheds light into the tensions and power strug-
gles between the state and the ʿulamā class in the 17th and 18th centuries. Michael Nizri, Ottoman High Po-
litics and the Ulema Household (New York: Palgrave Macmillan, 2014).
49
Musa Çadırcı, “Tanzimat’ın İlanı Sıralarında Osmanlı İmparatorluğunda Kadılık Kurumu ve 1838 Tarihli
Tarîk-i İlmiyye’ye Dâir Ceza Kânunname’si”, Tarih Araştırmaları Dergisi 14/25 (1981), 139.
50
Moshe Ma’oz, Ottoman Reform in Syria and Palestine 1840-1861: The Impact of the Tanzimat on Politics and
Society (Oxford: Clarendon Press, 1968), 2.
shaykh al-Islam, stressing that they should mind the religious affairs, and that the
Sultan has the authority of government.51
Sultan Mahmud also established Meclis-i Vālā-i Ahkām-ı Adliyye (Supreme Council
for Judicial Ordinances) which later served as the source of Meclis-i Tanzimat (As-
sembly of Tanzimat) in charge of Tanzimat reforms. In addition, through promulga-
tion of two kanunnames on penal law, Sultan Mahmud II initiated a process through
which property right, freedom of faith and thought and equality were discussed.52 In
other words, Sultan Mahmud’s efforts greatly contributed to a transition in the secu-
larisation process, from the Dīvān-ı Hümāyun (imperial council) to the general as-
sembly, and from the qānūn to the rule of law. In this process, Sened-i İttifak (The Bill
of Alliance of 1808) with āyāns (the landed aristocracy) also should be underlined as
it is the first legal mechanism that restricted the Sultan’s authority,53 referred to by
some scholars as the “Magna Carta of the Ottomans”.54 Students sent abroad for
advanced education during his term also contributed to the process of secularisation
as they often became familiar with the Western values and emulated them after
returning to their home country. Reşit Pasha, the principal architect of the Tanzimat
Edict, was one of these students. However Sultan Mahmud’s reforms were criticized
on the basis that they did not address root causes of the problems, and that they
could, at best, be seen a poor response to a very broad issue.55 However, it would
have been extremely difficult to implement the Tanzimat reforms without these
foundational efforts.
2.2. Tanzimat Period (1839-1876)

Tanzimat period was could be characterized by the infiltration of the western
standards and values, not only in legal matters but also in political, administrative,
financial, social and cultural fields in the Ottoman state. For this reason, Tanzimat
period is considered as a keystone for the modernization of Turkey and its transfor-
mation into a state of law since crucial steps were taken on the executive, legislative
and judicial issues in this period. The promulgation of Gülhane Hatt-ı Hümāyunu (Tan-
zimat Edict of 1839), and of Islahat Fermanı (Rescript of Reform of 1856), and the estab-
lishment of the Nizāmiye (regular) courts could be cited as major reform in this par-
ticular period towards reformation of the state system.
2.2.1. Tanzimat Edict (1839) and Rescript of Reform (1856)
On the 3 November 1839, Mustafa Reşit Pasha recited, and publicized the Imperi-
al Edict in the name of Sultan Abdülmecid (1839-1961) in the Gülhane (outer garden
51
Okumuş, Türkiye’nin Laikleşme Serüveni, 211.
52
Okumuş, Türkiye’nin Laikleşme Serüveni, 211.
53
İnalcık, “Sened-i İttifak”, 91.
54
Stanford Shaw-Ezel Kural Shaw, History of the Ottoman Empire and Modern Turkey Reform, Revolution and
Republic: the Rise of Modern Turkey, 1808-1975 (Cambridge: Cambridge University Press, 1977), 2/3.
55
Frank Edgar Bailey, “Palmerston ve Osmanlı Reformu (1834-1839)”, trans. Yasemin Avcı, Tanzimat
Değişim Sürecinde Osmanlı İmparatorluğu, ed. Halil İnalcık-Mehmet Seyitdanlıoğlu (İstanbul: Türkiye İş
Bankası Kültür Yayınları, 2012), 313.

of the Topkapı Palace), referred to since then as Gülhane Hatt-ı Hümāyunu that marked
the beginning of a new era (1839-1876), called Tanzimat-ı Hayriyye (the Auspicious
Reorderings). Considering that Mustafa Reşit Pasha, author of the Edict who also
promulgated it, was, as noted above, a student sent abroad for education and that
the document was publicized only a few months after Sultan Mahmud died, some
scholars argue that it was Sultan Mahmud who drafted the Edict,56 considered a
‘charter’57 that paved the way towards creation of the first Ottoman Constitution.
The Tanzimat starts with a statement specifying that divergence from Islamic
principles and law was the root cause of retrogression; and in many instances, the
text emphasises that salvation is possible only by turning to precepts of Qur’an and
Islamic principles. This reference to Islam and its law could be considered as a sign of
“traditionalism” as İnalcık’s notes, but it also should be noted that the main concern
and aim was to save the Empire from collapse through centralization of the authori-
ty without compromising the foundations of Islam.58 In this sense, Tanzimat reforms
could be viewed as reformist, and not revolutionist since the idea was not to strip
the state and society off Islam. The issues and concerned addressed in the Edict may
be summarized as follows:
“These institutions must be principally carried out under three heads, which are:
1. The guarantees insuring to our subjects perfect security for life, honor, and
fortune.
2. A regular system of assessing and levying taxes.
3. An equally regular system for the levying of troops and the duration of their
service.”59
Subsequent to the introduction, the text elucidates on the importance the prin-
ciples through which comprehensive guarantees were extended on the security of
life, property and honour, prohibition of muṣādere (confiscation), collection of taxes,
limitation of military service, expansion of the functions associated with the mem-
bers of Meclis-i Vālā (established by Mahmud II), and preparation of a penal code.
However, because the Tanzimat Edict was not strong enough to maintain equality
between Muslim and non-Muslim, the administration took a further step and prom-
ulgated the Islahat Fermanı (Rescript of Reform) on 25 February 1856 as a supplement
to the former edict, stating main objective as follows:
“The guarantees promised on our part by the Hatt-ı Hümayun of Gülhane,
and in conformity with the Tanzimat, to all the subjects of my Empire,
without distinction of classes or of religion, for the security of their per-
sons and property and the preservation of their honour, are today con-
56
Ahmet Mumcu, “Tanzimat Döneminde Türk Hukuku”, Adâlet Kitabı, ed. Halil İnalcık et al. (Ankara:
Kadim Yayınları, 2012), 207-208.
57
Yavuz Abadan, “Tanzimat Fermanı’nın Tahlili”, Tanzimat Değişim Sürecinde Osmanlı İmparatorluğu, ed.
Halil İnalcık-Mehmet Seyitdanlıoğlu (İstanbul: Türkiye İş Bankası Kültür Yayınları, 2012), 71.
58
İnalcık, “Sened-i İttifak”, 92.
59
Türk Anayasa Hukuku Sitesi, “The Rescript of Gülhane - Gülhane Hatt-ı Hümayunu”, trans. unknown,
(Access 28 February 2021).
firmed and consolidated, and efficacious measures shall be taken in order

that they may have their full and entire effect.”60
The text does not make any reference to Islam or Muslim subjects, but the
context suggests that the legal guarantees it provides are mostly relevant to the
non-Muslim subjects (dhimmīs) and to their rights. Establishment of tribunal
court and representation in the assemblies, attendance to civil and military
schools and recruitment as civil servant are, among others, the most influential
rights recognized in the document to the members of non-Muslim communities.
As a result, Islahat Edict created legal dualism by introducing mixed courts for
commercial and criminal issues between Muslims and non-Muslim subjects, or
among non-Muslim subjects. It also caused disorder rather than order and peace
for both Muslim and dhimmīs as it encouraged minorities to fight for political
rights as well including independence, autonomy of Lebanon being the first
concrete outcome of this tendency.61 It can be stated that the issue of non-
Muslim subjects’ rights became one of the triggers and accelerator for the pro-
cess of Ottoman modernization. Within this context, the first secular citizenship
law in the Muslim world, Osmanlı Tābiiyyet Kanunu enacted in 1869, can be consi-
dered as the final step in introducing equal citizenship rights for the Ottoman
subjects regardless of their religion and sects.62
A number of attempts towards modernizing institutions and standards have been
made in reference to the Tanzimat Edict and the Edict of Reform. The first attempt
was the codification of legal rules through substantial borrowing from western law,
leading to the adoption of new hierarchical court system. Law-making was not alien
to the Ottoman tradition but these secular courts were novel, and different from
classical single-judge and first instance court system. Therefore, changes in the judi-
cial system could be considered an important and influential step towards the secu-
larisation of the Ottoman law. As the new courts also needed recruitment of new
professionals specialized in the new legal system, the whole process resulted in the
transformation of the classical Ottoman law from fiqh (Islamic jurisprudence) to
modern law.
2.2.2. Codifications through Legal Borrowing and Evolution of Legal Institutions
The Tanzimat Edict acknowledges the need to enact new laws to stop the decline
of the Empire and to make progress in certain fields ‘within a few years’. Therefore,
codification was the first step towards changing the entire legal system, but this was
not the main objective of the edict, which, like its predecessors, was focused on the
‘interest of state’. As such, it had nothing revolutionary to offer. However, codifica-
tions led to gradual and evolutionary secularism of the system, as characterized by a
transition from single judge court to hierarchical courts, from meclis (councils) to
60
Türk Anayasa Hukuku Sitesi, “The Rescript of Reform - Islahat Fermanı”, trans. unknown, (Access 28
February 2021).
61
Küçük, “Millet Sistemi”, 551.
62
İbrahim Serbestoğlu, “Zorunlu Bir Modernleşme Örneği Olarak Osmanlı Tabiiyet Kanunu” Ankara
Üniversitesi Osmanlı Tarihi Araştırma ve Uygulama Merkezi Dergisi 29 (2011), 205.

parliament, and from fiqh to positive law. Because codifications as part of what the
edict sought to accomplish were mostly in form of legal borrowing from western
countries, particularly France, the term ‘justice,’ for instance, became “promulgation
of secular legislation outside the jurisdiction of the Islamic traditions and autono-
mous from them in the Tanzimat period”.63 In this period, serious and effective role
was given to the Meclis-i Vālā as legislative council that has been divided and merged
a few times under different titles. Ultimately, this meclis became source of secular
present time Turkey’s the most significant institutions, Danıştay (Council of state)
and Yargıtay (Court of appeal). The experience of Meclis-i Vālā may be considered as
representative for whole secularisation process of the Ottoman law.
The Ottoman Penal Code of 1840 was the first major codification. Even though
it was not innovative step because criminal issues were already regulated by the
state under the ‘urf’ī law, the penal code combined all existing rules and organised
them in a way to form a collection of criminal legal rules.64 The code was in con-
formity with the sharī‘a but also was influenced by the French penal law, the influ-
ence of which manifested itself in two major instances that mark divergence from
the sharī‘a law. First, the code reaffirms the equality of all Ottoman subjects before
the law, thereby translating the principle of equality as a standard spelled out in
the Tanzimat edict into a concrete practice that led to creation of secular criminal
courts in 1840s. Second, the Ottoman Commercial Code of 1850, adopted from
French commercial code, was, according to Starr, “the first clear example of trans-
planting European codes to Turkish soil”.65 In the classical time, commercial issues
were mostly regulated by ‘urf’ī law, with some commercial concession to foreign-
ers and treaty of commerce. However, it was also in the scope of shar‘ī law because
law of property and law of obligation were discussed in fiqh accounts in detail. For
this reason, the ʿulamā class strongly opposed the initial attempts towards prom-
ulgation of new commercial code in 1841, arguing that it stepped up the domains
of shar‘ī law.66 The code included some significant articles against the shar‘ī law,
including one on the recognition of usury.67 This was an important step in terms of
divergence from shar‘ī law and secularisation. Additionally, the Commercial code
of 1850 led to an increased number of secular commercial courts. Before the adop-
tion of the code, there were already councils of commerce under ministry of com-
merce which were then transformed into mixed commercial courts in 1848.68 They
included 7 Ottoman and 7 alien members, and were founded in urban areas İzmir,
Beirut, Salonika and Cairo. This model, however, has become very popular and
widespread with an amendment to the code in 1860. These courts are important
63
June Starr, Law as Metaphor: From Islamic Courts to the Palace of Justice (New York: State University of New
York Press, 1992), 21.
64
65
Starr, Law as Metaphor, 29.
66
67
Mumcu, “Tanzimat Döneminde Türk Hukuku”, 220.
68
because they demonstrate limitation of state authority on the judiciary, as evi-

denced in their panel compositions.69
Subsequent to the commercial code of 1850, the Ottoman Penal Code of 1851 was
adopted as a revision of the first code of 1840. The revised version signifies visible
departure from shar‘ī law towards the modern system as evidenced by recognition of
public prosecution and the abolition of right of forgiveness to offender in qiṣāṣ (retal-
iation) penalty.70 In the field of criminal law, the Criminal Code of 1858, compared to
the previous codes adopted in 1840 and 1851 which contained provisions incompati-
ble with the sharī‘a law, makes no room for substantial sharī‘a commands and also
introduces a new court system, called Nizāmiye courts, with courts of first instance,
courts of appeal, and a court of cassation.71 It was one of the most remarkable exam-
ples of ‘legal borrowing’ from Napoleonic code of 1810,72 featuring principles of
“There is no crime without a law, and no punishment without a law”.73 Moreover,
Nizāmiye courts based on French models were significant divergence from old single
judge court system. The penal code of 1858 remained in effect with a few changes
until the start of the republican era.
As noted earlier, the main concern of the reforms was the salvation of the
state. Centralisation of the administration was considered an initial step to accom-
plish this mission. Therefore, it was not surprising to see adaptation of French
model continental law which offers centralisation and hierarchical court system,
confirming the argument that the Ottoman reforms were a response to pressure
by Western powers and an attempt to keep the state structure from complete
failure. In other words, the Ottoman experience was “[l]ike other cases of legal
transplantation in the history of the world, the resulting judicial system was an
amalgam of local and borrowed law designed to address local needs and struc-
tures, and it was certainly not a carbon-copy of the French legal system”.74 Findley
remarks that there were some changes in the tradition of Ottoman political
thought from the 18th century, and that Ottomans were interested in the French
system because of its emphasis upon some concepts such as freedom, equality,
centralisation and bureaucratisation.75
To this end, it should be noted that the land law of 1858 was only partially inspired
by the Western codes and was mainly based upon kanunnames, fatwās and imperial
69
See for an in depth analysis on the Ottoman Commercial Code of 1850, especially in terms of its coexis-
tence with Mecelle, M. Macit Kenanoğlu, Osmanlı Ticaret Kanunu (Ankara: Lotus Yayınevi, 2005).
70
See Mumcu, “Tanzimat Döneminde Türk Hukuku”, 222-225; Starr, Law as Metaphor, 31-32.
71
72
Avi Rubin, “Legal Borrowing and Its Impact on Ottoman Legal Culture in the Late Nineteenth Century”,
Continuity and Change 22/2 (2007), 282.
73
74
Avi Rubin, “British Perceptions of Ottoman Judicial Reform in the Late Nineteenth Century: Some
Preliminary Insights”, Law & Social Inquiry 37/4 (2012), 992.
75
Carter V. Findley, “Osmanlı Siyasal Düşüncesinde Devlet ve Hukuk: İnsan Hakları mı, Hukuk Devleti
mi?”, Tanzimat Değişim Sürecinde Osmanlı İmparatorluğu, ed. Halil İnalcık-Mehmet Seyitdanlıoğlu (İstan-
bul: Türkiye İş Bankası Kültür Yayınları, 2012), 494-495.

decrees. Remaining in effect even in the republican era without any amendments, the
law is considered as the first important national law in terms of language, technique
and organisation before Mecelle.76 Thus, it is argued to be “a true evolution of Turkish
law”.77
As the above cases suggest, the idea was not to make the state and law secular,
but was good organisation and administration of the state, creating a state of confu-
sion that led to inconsistent attempt. For example, it is interesting to see that there
were five different types of courts during the Tanzimat era. Şer’iye courts addressed
cases of personal status and pious endowments (waqf); courts of communities were
dealing personal status issues of communities; consular courts were founded for
foreigners; Nizāmiye courts covered the criminal, civil and commercial fields; and
commercial courts addressed cases involving at least one foreigner or non-Muslim.
On the actual start of secular legal system, Starr argues that it was the division of the
Meclis-i Vālā into a legislative body, Council of state (Şūrā-yı Devlet) and a court of
appeal (the Dīvān-ı Ahkām-ı Adliyye) in 1868.78 Dīvān-ı Ahkām-ı Adliyye was divided into
two parts for civil and criminal cases, later its name being changed to Adliye Nezāreti
(Ministry of Justice). This was the sign of separation of powers and recognition of an
independent department of justice. Thus, these gradual changes brought along secu-
larisation of law education. As a concomitant result of developments on the legal
system, it was necessary to regulate the legal education through adoption of new
codes and particularly establishment of new Nizāmiye courts. To this end, Kavānīn ve
Nizāmāt Dershanesi (training centre of rules and orders) were established in 1870 to
teach new codes and principles. When it became evident they fell short to meet the
demand, Mekteb-i Hukūk-i Sultānī was launched in 1874 as a first law school.79 This
concrete step meant transformation from fiqh to positive law education as the re-
publican era jurists who made the system ultra-secular were educated in this mod-
ern school.
In contrast to ideological claims, the clergy did not oppose the Tanzimat reforms.
On the contrary, they did collaborate with the political administration on the prom-
ulgation of codes and application of new rules. Even shaykh al-Islams supervised the
implementation of the rules, controlling whether or not they were implemented
properly.80 Even in the classical era, the clergy submitted to the political administra-
tion, but they were entitled to having a say if something seems wrong. In the decline
of the Ottoman Empire, the clergy, like many other compartments within the state,
was in decline. As a direct result, they were unable to offer lasting solutions to the
prevailing problems in the legal domain.
76
77
Quoted in Starr, Law as Metaphor, 30.
78
79
See for the establishment of the first law school, Nuran Koyuncu, “Hukuk Mektebinin Doğuşu”, Gazi
Üniversitesi Hukuk Fakültesi Dergisi 16/3 (2012), 163-186.
80
Okumuş, Türkiye’nin Laikleşme Serüveni, 240-243.
Cevdet Pasha could be cited as a prime exception. In a fierce debate on how to

proceed in devising a new civil code, the modernists insisted on the adoption of the
French civil code whereas the traditionalists, led by Cevdet Pasha, argued that draft-
ing such a significant legal document should be based on references to the history,
tradition and values of the Ottoman society. Cevdet Pasha’s view received acceptance,
resulting in the codification of Mecelle-i Ahkām-ı Adliyye (1869-1876), probably the most
prominent attempt since it was an authentic Ottoman Islamic legal code.81 Moreover,
among Ḥanafī School it was doing eclectic selection (takhayyur) according to current
condition and needs. Its significance does not only derive from its ability of demon-
strating collaboration between modern and traditional systems, but also from its
outlook as a prominent step in terms of practicing Islam by Ottomans.
2.3. Post-Tanzimat Period (1876-1922)

Meşrutiyet I (The First Ottoman Constitutional Era, 1876-1878) covers the pe-
riod from the promulgation of the Kānūn-ı Esāsī (the Ottoman Constitution of
1876) to the abolishment of the parliament activities by Sultan Abdülhamid II on
14 February 1878. The First Ottoman Constitution was promulgated with the
efforts of Young Ottomans in a traumatised period due to threats from Russia
and European powers which, according to the Ottoman officer, required a tho-
rough legal reform. Kānūn-ı Esāsī included 12 sections and 119 articles, and was
modelled on the French-Belgian constitution of 1831. 82 The constitution conti-
nued to take gradual step over Tanzimat reforms towards modernization and
indirectly secularisation of the legal system.
A radical effort in the Tanzimat period, the secular court system was incorporated
into the constitution, with courts being organized by law, appointment of judges for
life and no outside interference allowed. Additionally, the Ottoman Parliament was
established under the constitution, and composed of two houses, Meclis-i A‘yān
(Chamber of Notables) and Meclis-i Meb‘ūsan (Chamber of Deputies). Dīvān-ı Ālī was
also created to deal with cases against members of the states along with the council
of state as a high court. Moreover, novel advancements such as freedom of travel,
freedom of the press and the security of the mails were introduced for the first time.
However, article 113 protected the exclusive right of the Sultan, portrayed as sacred
and responsible to no one under the constitution, and entitled to appointment and
dismissal of ministries of state, declaration of war and peace, convening and dissolu-
tion of parliament and conclusion of treaties. Last but not least, Islam was stated as
the official religion of the state, but all subjects were declared Ottomans and equal to
each other regardless of their religious identity.
Sultan Abdülhamid II suspended the first Ottoman constitution and closed the
parliament in 1878 out of political concerns which had primary relevance to the
attempts towards modernization and secularisation in the Ottoman Empire. The
81
82

Meşrutiyet II (The Second Ottoman Constitutional Era, 1908-1922) commenced with

the restoration of the Ottoman Constitution of 1876 by the Young Turk revolution of
1908 and remained in effect until its abolishment by the Sultan on 1 November 1922.
During this term where it remained in effect, the most important attempt was the
promulgation of the Law of Family Rights in 1917, which codified family law that is
considered as “the last bastion or last stronghold” of Islamic law.83 This was the first
time in the Islamic history that family law was codified. However, it should be consi-
dered in the context of political, social and cultural circumstances. In other words,
the process of secularisation of Ottoman law consisted of practical and required
attempts. Therefore, it started with administrative and militarily fields, and was
expanded to include other matters, finally covering the Family law.
The first legal document on family law was adopted at the parliament in 1876,
focused on the limitation of financial exchange at betrothal between the families.84
This detailed example was not directly ruled by shar‘ī law, leading, however, to the
promulgation of Hukūk-ı Āile Kararnāmesi (Law of Family Rights of 1917).85 Starr
upholds that recognition of principle that “the sharī‘a courts might be ordered to
apply, in all relevant cases, an opinion other than that of the school to which they
were traditionally bound” by the Sudanese Mohammedan law courts in 1915 was
the groundwork for the revolutionary Ottoman Law of Family Rights.86 Law of
Family rights ensured judicial unity, thus it regulated Jewish and Christian Family
law in accordance with their respective legal systems. In respect to Islamic law, it
took a step forward from Mecelle by adopting the method of choosing the most
suitable view among the schools of jurisprudence (talfīq). As a direct outcome of
this change, certain provisions were adopted on the limitation of male’s right to
divorce, requirement of judge or deputy to practice repudiation, state procedures
and registry for divorce and marriage, right of divorce to wife on grounds of con-
tagious disease or absence or abandoning of husband based on Maliki law, mainte-
nance based on Ḥanbalī law, right of divorce petition on grounds of cruelty to wife,
minimum age of marriage 9 for female, 12 for male and right to insert a condition
against polygamous right of husband. Law of Family Rights was abolished in 1919
due to reaction of both Muslims and non-Muslims but remained in effect until
1949 in Syria and until 1951 in Jordan, and is considered as a basic family law code
for Muslims in Lebanon and Syria.87
To complement the reforms in the court system, particularly the Nizāmiye courts
in the Tanzimat period, procedural laws and codes, Usūl-i Muhākemāt-ı Hukūkiyye
Kanunu (Code of Civil Procedure of 1879) and Usūl-i Muhākemāt-ı Cezāiyye Kanunu
83
Lynn Welchman, Women and Muslim Family Laws in Arab States A Comparative Overview of Textual Develop-
ment and Advocacy, (Amsterdam: Amsterdam University Press, 2007), 11.
84
85
Aydın, Türk Hukuk Tarihi, 459-460.
86
87
Judith E. Tucker, “Revisiting Reform: Women and the Ottoman Law of Family Rights, 1917”, The Arab
Studies Journal 4/2 (1996), 4.
(Code of Criminal Procedure of 1879) were promulgated, mostly modelled on the

French law. Mahkeme-i Teşkīlāt Kanunu (Law of judicial organisation of 1879) was
promulgated to fill gaps in judicial system, and new concepts were introduced to the
system such as prosecution, enforcement offices, judicial inspectorate, regulation of
court fees, new methods of execution, notary office and attorneyship.88 Moreover, as
a step further in the legal education, Mekteb-i Hukūk-i Şāhāne (Law Faculty) was
opened to train bureaucrats and experts in the law in 1880 and a year after it was
combined with Mekteb-i Hukūk-i Sultānī.89
As stated before, there was not serious opposition by the clergy, except some in-
dividual opposition to the Tanzimat reforms. Thus, there was not a critical search or a
discussion for the new methodology to accommodate Islamic law in the system. Said
Halim Paşa revealed the mainstream attitude towards European codes and legal
institutions by acknowledging their “mistake” saying “we assumed that translation
of the European codes would be sufficient. We imagined that only a few changes
would be sufficient for their acceptance and implementation”.90 Intellectual discus-
sions started after Meşrutiyet II to justify this modernization of law based on concepts
of uṣūl al-fiqh (Islamic legal methodology) such as ‘urf, ijmā‘ (consensus of scholars),
istihsān, ijtihād (personal reasoning) and their different interpretations.91 But, it
seems that it was too late because the Ottoman Empire collapsed on 1 November
1922, being replaced by the Republic of Turkey in 1923 as an ultra-secular (laïcité)
state.
Conclusion
Secularisation of Ottoman law is a process spanning across less than one and a
half ages (19th and the beginning of the 20th centuries) in terms of substantial at-
tempts. However, there are some crucial features of the Ottoman law that made
transition between classic period and reform era. The understanding of old Turkic
state and tradition of law making (qānūn) were successfully combined with the au-
thority of ulu’l-amr and flexible structure of Islamic law in the Ottoman Empire
which built an Islamic structure where it effectively used the idea of state interest to
make its own rules with reference to some Islamic concepts, ‘urf, maṣlaḥa, sedd-i zerāi‘
and istihsān. The ideas of state interest and authority to enact were keystones in
terms of transition to the reform era. Therefore, new codes were adopted without
any serious objection particularly which the ‘urf’ī law regulated before. On the other
88
Mumcu, “Tanzimat Döneminde Türk Hukuku”, 225.
89
Koyuncu, “Hukuk Mektebinin Doğuşu”, 176.
90
Said Halim Paşa, Buhranlarımız ve İçtimai Hayatımız (İstanbul: Çağdaş Kitap, 2020), 53.
91
See for debates over ijtihād and related legal concepts, as well as contemporary approaches emerged
after Tanzimat and Meşrutiyet II, Sami Erdem, Tanzimat Sonrası Osmanlı Hukuk Düşüncesinde Fıkıh Usûlü
Kavramları ve Modern Yaklaşımlar, (İstanbul: Marmara University, PhD Thesis, 2003); for an examination
of the role of the Ottoman ʿulamā in the constitutional debates, Yakoob Ahmed, The Role of the Ottoman
Sunni Ulema During the Constitutional Revolution of 1908-1909/1326-1327 and the Ottoman Constitutional Debates,
(Birleşik Krallık; Londra: SOAS University of London, PhD Thesis, 2018).

hand, modernization of the administrative and military bodies already started in the
reign of Selim III and Mahmud II. This modernization process with new adopted
codes resulted in gradual secularisation of Ottoman law. In other words, it was not
intention to break away from Islam but it was to save the Empire from decline
through modernization which, however, brought about secularisation as well. The
ʿulamā class was unable to mitigate what they would certainly consider a threat to
the de-Islamization of the legal domain because it was too late when they realized
this was happening because power balance was working against them and a new
modern bureaucratic class was in power. As a result, secular legal system emerged in
the hand of this powerful elite class in Turkey. As seen in the Ottoman reforms, this
was a top-down movement, but unlike the Ottoman reforms this was not an evolu-
tionary process; rather, it exhibited some revolutionary elements that undermined
the Islamic tradition and the sentiments and priorities of the pious Muslim popula-
tion of Turkey. For this reason, the debate over the place of Islam in Turkey, and the
tension between secularist and Islamist, remained unsettled.
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Araştırma Makalesi/Research Article Eskiyeni 44 (Eylül/September 2021), 385-408

Evolutionary Secularisation of the Ottoman Law in the Nineteenth Century:

Miyase Yavuz Altıntaş

Dr. Öğr. Üyesi, Iğdır Üniversitesi (ROR ID: 05jstgx72)

Evolutionary Secularisation of the Ottoman Law in the Nineteenth Century:

Eskiyeni 44 (Eylül/September 2021)

Osmanlı Hukukun Ondokuzuncu Yüzyılda Evrimsel Sekülerleşmesi: Kökler ve Etkileri

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1. Bases of the Secularisation Process in the Classical Ottoman Legal System

1.1. Co-existence of the Shar‘ī Law and the ‘Urfī Law

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1.2. Tradition of Turkic State Government

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1.3. Islamic or Quasi-Secular State

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2. The Secularisation Process of the Ottoman Law

2.1. Pre-Tanzimat Period

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2.2. Tanzimat Period (1839-1876)

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firmed and consolidated, and efficacious measures shall be taken in order

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because they demonstrate limitation of state authority on the judiciary, as evi-

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Cevdet Pasha could be cited as a prime exception. In a fierce debate on how to

2.3. Post-Tanzimat Period (1876-1922)

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Meşrutiyet II (The Second Ottoman Constitutional Era, 1908-1922) commenced with

(Code of Criminal Procedure of 1879) were promulgated, mostly modelled on the

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Çadırcı, Musa. “Tanzimat’ın İlanı Sıralarında Osmanlı İmparatorluğunda Kadılık Kurumu ve

Eskiyeni 44 (Eylül/September 2021)

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