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European Journal of Economic and Political Studies

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-6 (2), 2013

Secular Law in an Islamic Polity: The Ottoman Case

hsan Ylmaz*, Hseyin GndoduDepartment of Political Science and Public Administration,

Fatih University, Turkey

Abstract

The aim of this study is twofold. Firstly it puts that long before the foundation of Turkish

Republic, the Ottoman sultans from the 18th century on gradually secularized their legal

systems through transplanting Western codes and institutions with the exception of

civil code. Secondly and more assertively it argues that this secularization process did

not evoke a serious struggle between the religious and political authorities as it did in

the West thanks to the political conventions and legal characteristics the Ottoman state

carried along from its very beginning on. Secularism began to pose serious problems

from the first years of Turkish Republic on when the Kemalist establishment set about

extending the area of legal secularism and turning it to an ideology which can be called

as ultrasecularism or Kemalist lacit with an aim to socially engineer society in a top-

down fashion by legal instrumentalism.

Keywords: Legal secularization, Ottoman Law, Turkish modernization, Kemalism, instrumentalism.

* Corresponding author.E-mail addresses: [email protected] (.Ylmaz), [email protected] (H.Gndodu).

hsan Ylmaz - Hseyin Gndodu

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Introduction

In his visit to Egypt on the 12th of September in 2011 Turkish Prime Minister Re-

cep Tayyip Erdoan called on Egyptians to adopt a secular constitution and later he

added Do not be wary of secularism, I hope there will be a secular state in Egypt.

Although he is still labeled by some as a conservative Islamist, he could openly ex-

press that he favored a secular state and more interestingly the constituency of his

party who are also blamed as anti-secularist did not show any negative reaction

to his words. However, one of the main political struggles in the history of Turkish

Republic has become seemingly the one between the secularist establishment and

Muslim grassroots who were wrongly perceived anti-secularist. Then, how come

these allegedly anti-secularist grassroots did not deprecate but even appreciate

their leaders passion for secularism? Findings of this study suggest that the afore-

said tension was not between the secularism and anti-secularism but between the

ultra-secularist attitude initiated by the Kemalist establishment from the beginning of

Turkish Republic on and those who were harmed by it, namely the religious citizens.

Historically speaking, secularism was not brought to Turkey firstly by the found-

ers of Turkish Republic. Almost one hundred years before the establishment of the

Republic, the Ottoman sultans had already begun to secularize the legal system.

Nevertheless, the Ottoman secularization reforms did not evoke any considerable

problems neither with the ulama class nor with the Muslim subjects as it did during

the Kemalist revolutions. This is because, this study also asserts, these reforms were

not against the traditional politics and legal conventions of the Ottomans from the

very beginning on. The secular aspects which the Ottoman political discourse had

and the worldly considerations of the Ottoman law allowed new legal regulations for

the public benefit and changes in the system to adapt to the time conditions.

As part of the Ottoman political policy making, the siyasetname and slahatname

authors, referring to the past applications of famous kings and sultans and to the legal

characteristics of Islamic state always considered the secular regulations in their ad-

vice. They did not see it enough to urge the sultans to be religious so that their sub-

jects would be religious, too, and would obey their rule. Instead, they also counseled

them to make their subjects happy in this world by suggesting them a secular justice

which required a mutual implicit contract between the sultan and his subjects. If he

would give them justice, they would give their productivity in return through which


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the treasury would be full and the state would meet its needs.

Moreover, Ottoman law which was based on the Hanafi school of law and the

ulama who were not enactors but the implementers of this law left the legislation to

the hands of sultans. The Ottoman sultans could enact new laws called kanun and

they were approved by the ulama who thought that the Sharia would be powerful

only if the political authority would strengthen itself through the new regulations leg-

islated under the title of kanunnames. The legislation was obviously man-made and

the process of enacting these kanuns was clearly secular. Yet, the Ottoman state was

not a secular state in the strict sense of the term because it not only derived its legiti-

macy from Islam but also saw itself as the defender of Islam and practiced Islamic

law under the leadership of a caliph-sultan.

In modern Turkey, however, secularism was introduced as synonymous with

modernism during the first half of the 20th century. Therefore, secularization has be-

come part of Turkish modernization and westernization. It was argued that the secret

of the success of the triumphant Western nations lied in their secular approach and

institutions. Consequently, secularism has been accepted as a required part of be-

ing modern following the model of the developed Western nations. The founders

of Turkish Republic in this sense of secularism presented themselves as those who

initiated the secularization of the state and society and thus they ignored the secular

aspects in the Ottoman politics and the secular reforms taken part together with the

Ottoman modernization which this study will elaborate on.

Western law had been in the process of being transplanted to Turkey for a pe-

riod of about one hundred years before the establishment of the Republic. In fact,

although the legal reform attempts quickened and more radicalized after the forma-

tion of the Republic, the Ottomans either enacted or received and adopted some

secular laws long before. In this regard, Turkish legal history presents three differ-

ent aspects. The first, which started in the beginning of the 14th century and ended

in 1839, was the period of Islamic law based upon the principles of the Quran and

administered by religious courts throughout the Ottoman State. This period has been

easily labelled by some secularist circles as the period of Sharia as if it was en-

acted as in todays Iran without any secular aspects in it. The second period began

in 1839 with the Charter of Glhane and the Ferman of Reform attempts. For the


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first time, new secular courts were established and compilation of secular laws and

transplantation of Western laws and regulations began to appear, including Ottoman

Penal Codes of 1840 and 1858, the Ottoman Commercial Code of 1850 and some

other laws and regulations of Western origin, especially in the French pattern. The

third phase starts with the declaration of the Republic in 1923 when new ideas of

a complete westernization and establishment of an ultrasecular state led Turkey to

the enactment of a civil code adopted from Switzerland with minor modifications in

4 October 1926. Similarly, the Turkish Criminal Code was adopted from the Penal

Code of Italy of 1899 and the Turkish Criminal Procedure Code was adopted from

the German Criminal Procedure Code. Switzerland became the source of the Turk-

ish Code of Obligations, the Turkish Code of Civil Procedure, and the Turkish Code

of Execution and Bankruptcy. This periodization reveals that Turkish secularization

did not begin with the establishment of Turkish Republic, rather it was just one of the

Ottoman reform attempts during the 19th century.

This study will firstly propound the secular aspects in the Ottoman political dis-

course and in the Ottoman law respectively. Secondly, the secularization process

and new legal regulations initiated by the Ottoman sultans mostly in the second half

of the 19th century will be enumerated. It will come to conclude that the secular

aspects and worldly considerations apparent in the Ottoman political and legal tradi-

tions both made it easy for the Ottoman reformers to transplant some of the secular

laws from the Western countries and prevented struggles between the religious and

political circles.

The Place of the Secular in the Ottoman Political Discourse

Secularism simply requires the separation of religious from the secular institu-

tions in government. However, the Ottoman case suggests that sacred and secular

relations in a political setting may be a bit more sophisticated unlike what the con-

ventional wisdom has so far argued. What if a religion itself allows for reason; pro-

motes rationality and encourages human law-making which is perceived as possible

only in secular political systems?

Since the main sources of Islam, Quran and Sunnah (Traditions of Prophet Mu-

hammed), did not restrict the state to a certain regime and instead it left the organiza-

tion of the state and society to rulers (ulul-amr), not only in practice but also in theory


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state institutions were subject to change as the needs of the society changed. Even

the core element of Islamic state, justice, was not clearly defined and how to apply

justice was not a question agreed upon. Thus, Muslim sultans tried to place their own

interpretation of justice in the centre of their politics.

As the conquest of new lands by the medieval Muslims continued, the Muslim

government based on tribal structure fell short of meeting the needs of the state which

had to govern large territories and peoples keeping their own ancient customs. This

new imperial politics brought about new imperial ideologies like the Circle of Jus-

tice (Darling 2008, 16) which was not a religious but a secular concept tracing back

to Ancient Iran and India. Justice and the image of a shepherd ruler were not new

concepts for Islam, and urf (established custom) is permitted to enter into the Islamic

law (Hamidullah 1979, 18). In the Quran chapters of Nahl (verse 90), Sad (verse

26), Hadd (verse 77) etc. justice was advised and ordered but how to do it was not

clear. Thus, the Circle of Justice, although having a secular origin, was welcomed

through adaptation by Islamic political literature and even by jurists and members

of the ulama (Islamic scholars). This is because it was a successful method to secure

the justice in a multicultural empire. After all, in Muslim political philosophy, the main

concern about political issues was not on the source and from where it originated but

was how beneficial it was for the society (Crone 2007, 151). This understanding of

public welfare (maslahat- mme) was not confronted by Islamic scholars and quite

the contrary, it was supported by them.

Mverd (974-1058) specifies the qualifications and responsibilities of the ruler

referring mostly to the Quran and the past practices of early Islamic community and

ranks the responsibilities of the rulers as defense of the realm, provision of secu-

rity, appointment of capable officials, proper tax collection and execution of justice

(Darling 2008, 19) by giving the ruler a right to provide justice outside the regular

legal system of Islam. It is duty of the ruler to provide justice and rule the society not

of ulama. Even though Gazl (1058-1111) stresses the Islamic justice more than the

secular one (Lambton 1981, 118), he does not ignore mentioning worldly results of

justice and injustice by referring to non-Muslim rulers like Zoroastrian kings (Lamb-

ton 1981, 122-123). In short, justice as the most important pillar of Islamic states was

not seen as solely a religious concept and so the worldly and secular dimensions of

it are not neglected.


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As the Muslim Turks dominated the Middle East lands and the glorious times

for Abbasids started to disappear from the eleventh century on, they, together with

their own old Turkish state traditions in their socio-political baggage, had to adopt

the state theory of the previous Muslim states of the Middle East in order to rule that

large multicultural polity. Hence, the traditions of those states naturally entered state

conception of the Turks and political writings. The first Ghaznavid ruler Sebuktegin

(?-997), for example, addresses in his political testament to his son Mahmud without

any religious concern in it as if he admonishes a modern prince:

The first thing you should do is to keep the private and public

treasuries in a prosperous condition; for a kingdom can only be

retained by wealth. If you do not possess money, gold, or wealth,

nobody [i.e., the troops] will obey you. Wealth cannot be acquired

except by good government and wise statesmanship, and good

government cannot be achieved except through justice and righ-

teousness (Darling 2002, 5).

The secular concern in this state conception is more visible in the famous maxim

repeated also by Nizml-Mlk (1018-1092), grand vizier of Seljuks, A kingdom

remains with unbelief, but not with injustice (Nizm al-Mulk 2002, 12), considering

justice with its worldly results other than religious concerns.

Since the Ottomans had the legacy of these Turko-Muslim states especially that

of Seljuks and they were aware of the whole Islamic literature written in Arabic or

Persian during the Medieval Ages, they inherited their state theory and political

practice mostly from them. One of the first examples of Ottoman political discourse

is Dervish Sar Saltuks (?-1297) advice to Osman Gazi (1258-1326) and again he

considers justice with its worldly results; Be just and equitable so that you may

stay in power and retain the obedience of your subjects. (nalck 1973, 66)

Ottoman political thought can be examined in many different genres (see in de-

tail Gndodu 2011, 41-81), but for the purposes of this study some representatives

of Ahlk (ethics) and Islahatnme (reform treatise) genres will be mentioned since

these thinkers have secular considerations more than others like Sfs (mystics) and

Faqihs (Jurists). The representatives of the Ahlk genre make a division between the

government of self and the government of others and connect the quality of govern-


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ment to the moral quality of the sultan. They composed their works on the concept

of practical philosophy (hikmet-i ameliyye) conformed to Sunn theology. They ex-

press their theoretical ideas in morality, government and social order and leave a

large area for administrative regulations of political authority. They see politics as

a subtitle of practical philosophy and handle it within the field of ethics. The reason

and religion are inseparable to them. They believe the existence of unity on the

earth and man should participate in this unity through social life. The legitimacy for

this genre, nalck states, comes from its approval by Gazali (nalck 1973, 165-167).

One can find much reference in their books to both Ancient Greek and Persian rul-

ers like skender (Alexander the Great), Nushirevan, Ardashir etc., although these

rulers were not Muslim.

El-Ams (?-after 1406), as one of the first Ottoman thinkers writing political works,

states that the principles (evz) of politics is established by the prophet (nms) but

judgments (ahkm) are determined by the sultan (imm or melik) in accordance with

those principles (El-Ams 1406, 54b). Thus, he, as a statesman from the very begin-

ning of the Ottoman state, thinks that the legal area is shaped by the sultan. The role

of the sultan, to him, is to guide his subjects to true happiness and perfection through

his judgments (El-Ams 1406, 55b). When we recall the purpose of secularism in

modern nation states the ideas of El-Ams clearly involves some secular concerns.

Knalzde Al (?-1571) relates the necessity of a just ruler with the indispens-

able need of individuals to live together. Echoing with the ideas of Machiavelli and

Hobbes with whom he was more or less contemporary, he states that since every

individual inclines to satisfy his desires, sometimes these desires are at odds with the

desires of another individual, in this case a conflict becomes inevitable and the more

powerful side tyrannizes the weaker one, whether the former is right or not. There-

fore, Knalzde considers an omnipotent ruler as a condition to secure the justice in

a society and to give people their rights (Knalzde 2007, 137).

A historian influenced by Ahlk genre, Tursun Bey, by repeating the thoughts of

past thinkers like Frb, Nizml-Mlk and bn-i Haldn, states that for the human

order with interdependence and cohesion instead of injustice and violation of rights,

tedbr (politics) is needed (Tursun Bey 1977, 12). To him, politics has two types.

The first is the one done as to the requirements and rules of hikmet (wisdom). The


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second is the one which depends on reason not wisdom and is done to solve only

the worldly problems. This kind of politics, he says, is called siyset-i sultan (sultanic

politics), but it is named as urf in the Ottoman tradition (Tursun Bey 1977, 12). This

type of politics can also be called as secular politics since it regards only the worldly

matters and inspired by this definition Ottoman state ideology during the classical

age can be called as urfism (Gndodu 2009, 105-106). What should be noticed in

Tursun Beys ideas is that he mentions this kind of secular politics in a positive way.

Apart from these thinkers who can be categorized in Ahlak genre, also Islahat-

name authors main consideration is worldly politics. They concentrate on a field

on which they experienced a lot and take for granted rationally the question of cor-

ruption in the state and society. As mostly free from religious accounts they offer

practical solutions to the contemporary problems and they reflect that the subjects

and civil servants can only be controlled through overpower and surveillance not

through admonition or religiousity (Kurt 1998, 66).

Since these slahatnme authors think that these problems were caused not by

the negligence of religion, their suggestions are not calling people to be more re-

ligious to solve the ongoing problems. Instead, they analyze the reasons of decline

and advise the rulers to take rational measures as keeping the number of soldiers

in a harmless level, decreasing the tax burden of the subjects, supervising the state

officials and overcoming the bribery etc.

Katib elebi (1609-1657), a prolific scribe and an Islahatname author, argues

that if a functional solidarity among the constituting elements of the society is secured

and kept with rational politics, this state could stand in long years and make its sub-

jects happy (Katib elebi 1979, 122). Although he, also as a history writer, benefits

from the views of Ibn-i Haldun in his analysis of the current state and society, his

advice and suggestions for solution to ongoing problems are pragmatic ones with

practical concerns (Ktib elebi 1979, 123). He states that the infidel kings protect

their sovereignty with rational politics (siyaset-i akliyye), so the Sharia should be sup-

ported with reason for success in politics.

Another slahatname writer who gives much importance to reason in politics is

brahim Mteferrika (1670-1746). He recounts the regimes and polities in Europe-


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an political thought and also translates some Western political concepts to Ottoman

Turkish (brahim Mteferrika 1732, 7a-7b). He places special emphasis on current

sciences (fenn-i hazra) in the West and enumerates the regimes in the Western po-

litical thought. Although he thinks Sharia and rational politics together with justice

is enough for the retention of state, he is aware of the ongoing political debates in

Europe as well.

These slahatname authors think that all the problems the state experienced

were resulted from the absence of justice. However, their conception of justice is

again a secular one. They reflect that justice begins with the content of reaya (sub-

jects) and then they produce more for the treasury and then the salaries of the civil

servants and soldiers are paid and then the sovereignty becomes powerful. These

secular considerations in the Ottoman political discourse are also evident in the Ot-

toman law to follow.

The Secular Considerations and Aspects in the Ottoman Law

The Ottomans inherited their legal tradition from previous Turco-Muslim states

in legal practices and from Islamic law (fiqh) in theory. For legal practices, although

the source for the laws was Sharia or customs (urf) in accordance with Sharia, the

law-maker was the state authority not religious class or clergy. This is why the names

of the kanunnames were Fatih Kanunnamesi, Kanunname-i l-i Osman etc. Since

Sharia does not address certain areas regarding the administration of state, the cus-

toms (urf) as a source and kanun as legal codification were used by the Ottoman

sultans. Public and criminal law areas were open to political decision-making in tune

with the changing time and space and in accordance with the needs of society and

new conditions. They were not strictly bound by the methodology of Islamic law (usul

al-fiqh). That made the Ottoman law arguably a secular not a religious one at least in

its methodology.

Since ulama class saw the political authority as prerequisite to the implementa-

tion of Sharia, they did not oppose to those kanunnames through which the sultanic

authority would improve. (nalck 2005, 44) Even if kanuns were in accordance with

Sharia, since they were enacted by political will and not because of being religious

principles, at least the legislation process was secular. The Ottoman legislation even

in the classical period was rational and open to change. The first challenge to the


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Church, and this was also accepted as the birth of secularism, was by Holy Roman

Emperor Frederick II who saw it necessary to take back the profane powers from the

Pope and suggested something like a caliphate regime in which a successor would

apply the definitive commands of God and try to find solutions to the other worldly

problems (Abel, Arkoun, Mardin 1994, 50). Ironically, that was what existed in the

Muslim world in the same period and what continued and prevailed in the Ottoman

Empire from the very beginning on. In the Ottoman Empire the urf (customary or al-

legedly secular law) was not in conflict with the Sharia (Islamic law). The urf already

existed in Islamic law, but the Ottoman sultans of the classical age managed to ben-

efit from the urf to the extent for securing their political authority over servants and

subjects and used it as the ground to adapt to the changing conditions of their times.

This effort helped them to enact new codes (kanunnames) in the areas which were

not determined by the Sharia and even some taxation not accordant with it.

This state attitude or ideology was strengthened by the luminary Shaikh al-Is-

lams (chief qadi and mufti) like Ibn-i Kemal and Ebussuud and by the ulama class in

general. That means the environment targeted by the monarchs of the Renaissance

Europe already existed in the Ottoman country especially in the reigns of prominent

sultans like Mehmed the Conqueror, Selim the Grim and Sleyman the Lawgiver. In

the Ottoman Empire, the state organized the religion since also the ulama members

were state officials. Yet, due to the absence of powerful sultans the effect of this legal

tradition was impoverished by the ulama whose power increased with the armed

contribution of the Janissaries from the end of the sixteenth century on. However,

such ulama members were always criticized by slahatname authors as being devi-

ated from traditions.

Islamic law has left a considerable area of private life and a broader area of pub-

lic life to the preference of the individual and society. Instead of strictly regulating the

areas which can change depending on the tempo-spatial context, it endeavored to

put the essential norms and left a ground for different new legal opinions and regula-

tions in line with these norms (Aydn 2005, 78). Thus, especially in the public, admin-

istrative and criminal law areas, there were many intended gaps in the Islamic law.

Soon after the death of the Prophet, his companions tried to solve the new problems

they faced according to the Quran and Sunnah, but in the cases when they could not

find an explicit provision they resorted to ijtihad. The fatwas given in such regards

have a considerable sum in the history of Islamic law (Karaman 1989, 73-76). The


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sultans, in this regard, were given the power to protect some good customs for the

public benefit (maslahat- mme) and to make some innovations in the state system.

This power laid the emergence of the urfi law connected to the eri law (Barkan 1988,

185).

The handling of temporal or worldly powers by the sultans of previous Turco-

Islamic states for centuries established the urfi law connected to the Sharia. The Ot-

toman Empire naturally adopted this established state tradition while making some

contributions to it. In the texts of Ottoman urfi law and kanunnames there seems no

worry regarding their religiosity with regard to their formulation and inscription.

Also it was not the ulama class who prepared them. These texts did not need to be

approved by the Shaikh al-Islam, either. However, to increase their influence these

kanunnames were generally attached with related fatwas (Dursun 1988, 216). This does not mean that the urfi law regulated every area if needed. It only regulated the

areas of public and administrative law and most of the criminal law. For example, the

civil law was entirely in the scope of the Sharia.1 The Sharia coexisted with the urf

and the missing parts or the non-applicable parts of the former were regulated by

the latter (Imber 2002, 244). The source of the latter to regulate these areas became

the local practices, the laws and applications of the previous dynasties and the needs

obliged by new conditions (Imber 2002, 248). Mehmed the Conqueror made the

ulama a part of the ruling class who were also paid by the state treasury. By this way

he guaranteed, in a sense, the approval of his policies by the ulama class, unfortu-

nately paving the way for the erosion of a sort of classical Islamic checks and balance

system that relied on civilian autonomous and independent ulama, which was the

case in the first centuries of Islam.

Selim the Grim and Sleyman the Lawgiver did not accept the interference of re-

ligious authorities to the state affairs (nalck 2001, 326). The poem of Selim the Grim

which he read as an objection to the ulama who warned him before his expedition to

Shiite Safevids, is a case in point:

What are these laws, rules and ways?

Are these the words of God coming from the sky?

They are not the tradition of the prophet, either.

What I am saying now has no controversy

1 That is why the Ottomans transplanted laws in all areas but the civil code and instead, preferred to produce an authentic Islamic civil code, Majalla.


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Whatever a sultan enacted in his reign

That is his law with no suspicion.2

Selim the Grim knew that the Sharia itself gave him the right to enact new codes

for the good of the religion and society, so he wanted to ban the ulama from interfer-

ing this right.

Sleyman the Lawgivers Sheikh al-Islam, Ebussuud, even legalized the cash

wakfs (Islamic charitable foundations) which were giving debt for interest (Imber

2004, 45). Also, he gave the sultan the power to interpret the Sharia and accepted

the decrees of the sultan as in the boundaries of the sacred law (Imber 2004, 278).

In other words, he facilitated the applicability of Sharia to the reality by means of the

urf which it approved. Also, Dede Cngi (?-1567), again a famous ulama member

of the sixteenth century, wrote two treatises on politics in which his attempt was to

reconcile the sultanic authority (urf) with the Sharia just as Ebussuud did (Ylmaz, H.

2005, 73). To legitimize the sultanic politics he employs two fiqh terms as taghayyur

(change in conditions) and maslahat- mme (public benefit) (Ylmaz, H. 2005, 75).

The preface of a kanunname by Sleyman the Lawgiver reads the sultan has

commanded the codification of this Ottoman kanun, since these regulations are es-

sential for prosperity in the affairs of the world and for the regulation of the affairs of

the people (nalck 1998, 70). Unpacking this sentence reveals both that the codi-

fication was made by the order of the sultan without any religious reference and

that this codification was made for the aim of worldly benefits for the prosperity of

people, a characteristic which makes this kanunname secular at least in methodol-

ogy. Since most of the sources for the Ottoman law came from Sharia and even the

source of legitimacy for the sultans who enacted this law was Sharia itself, it is not

supportable that the Ottoman law was purely secular but as it is clear in the above

given examples that it certainly had secular considerations and aspects.

Although the secular aspects of the Ottoman law was neglected and impaired by

ulama class of the 17th and 18th centuries, they were revived especially by Mahmud

the Second in the first half of the nineteenth century by abolishing the guild of the

Janissaries and restricting the responsibilities of ulama class but again using them

2 For its Turkish original, see Uur 2001, 106.


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for religious legitimacy. From then on, the power struggle did not take place be-

tween the ulama class and the sultans but between those who wanted to modernize

and secularize the country by imitating the Western institutions and those who want

to adapt to the modern world by reviving the lengthy omitted fundamentals of the

Ottoman political and legal traditions. The conditions of the time which caused the

Ottoman to taste defeats in almost every area by the Western powers gave rise the

former group to capture the central government by the help of the new armed forc-

es. These conditions alongside with the World War I supplied the former group with

the opportunity to found a new Turkish state based on ultrasecularism which can be

defined in the Turkish case as the firm state control of the religion in order to make

themselves approved and selected by a secularized nation which they wanted to

create ironically by means of religion. They did not find adequate the secularization

efforts of the 19th century Ottoman reformists and went beyond to secularize even

the civil code which was not touched before in the Turkish legal history. This last

onslaught made the secularization process a still-continuing struggle especially be-

tween the Kemalist circles and practicing Muslim grassroots.

The next part tries to propound that before the Kemalist revolution, the secu-

larization process had already began and it did not cause any serious problem be-

tween political authority and religious circles or Muslim subjects since it acted more

or less in accordance with the legal tradition and did not touch the jus civile or set

about some ultrasecularist regulations by excluding both the ulama class and the

religious character of the Turkish people.

Gradual Secularization of the Ottoman Law and Legal Transplantation

Ottomans first recognized in the 17th century that the state began to lose its

strength and reform in the institutions was needed. Initially, their vision of a properly-

functioning system was the traditional Ottoman system of the golden age (McCarthy

1997, 174). As a result, reform attempts of the seventeenth century were generally

indigenous attempts which mainly centered on strengthening the authority of the

central state. They thought they were still superior to the West. In the seventeenth

and eighteenth centuries the Ottoman state was still a super power indeed. As a

result, for them there was too little to learn from the West. Decline or loss of terri-

tory was still attributed to a failure to apply and use the traditional institutions, tech-

niques and weapons (Starr 1992, 7). The Ottomans did not know that the changes


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in education and economy in the West that would ultimately defeat them (McCarthy

1997, 180). Yet, the world has not waited for Ottomans to reform their system and re-

vive their old power. The West was advancing in science and technology. It was not

enough to return to their strengths of the days of Sleyman the Lawgiver (McCarthy

1997, 180). It took the Ottoman elite a while to recognize that they were falling far

behind the Western powers.

After the eighteenth century the reform efforts took on a different tone and the

Ottomans opened their doors to the West. When Sultan Ahmed III took power in

1703, his grand vizier Nevehirli Damat brahim Paa decided that the West had

something to be imitated. As a result, ambassadors were sent to Western countries.

This led to a kind of superficial westernization. Some matters of importance were

also copied from the West as well, including the printing press that led to the publica-

tion of many scientific books (McCarthy 1997, 184). Ahmed IIIs successor, Mahmud

I made some practical reform attempts of the Ottoman military.

In the 19th century, more and more Ottoman power elite started perceiving

westernization as a precondition of reform. Therefore, indigenous solutions were

not seen sufficient and were not taken into account. Even though they believed that

the states salvation rested in the acceptance of Western technology and Western

institutional forms, they could not formulate a solution as to how Western technol-

ogy and institutions would be adapted without accepting Western culture (Ortayl

1986, 166-168). However, during the nineteenth century, both under the influence

of the spontaneous spread of ideas through personal contact and study, and under

direct political pressure from the Western powers, the state made periodic attempts

to introduce Western political and social institutions by promulgating decrees. The

Ottomans had not destroyed traditional institutions but had constructed new ones

that co-existed in parallel to the traditional ones, resulting in the duality of institutions

(Ortayl 1986, 166-168; see also in detail Berkes 1978, 179-190).

Mahmud II knew that the only way to strengthen the state was to increase the

central authority. For this, he had to deal with the biggest two obstacles, the cor-

rupt ulama and the spoilt Janissaries. He, just like his ancestor Mehmed II, chose to

eliminate one group, in this case the Janissaries, to strengthen his authority by using

again the ulama class. After he succeeded this first aim, he decreased the power of


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the ulama by decreasing the responsibilities of the ulama with quantity and quality in

state offices and by employing the religious institutions to adapt to the new conditions

of the time (Zrcher 1995, 65). Just like Mehmed II made his picture drawn by Bellini,

Mahmud II made his picture to be hung at the walls of state offices. As mentioned-

above, Mehmed II made the ulama paid state officials in return for their support in his

targets. Likely, Mahmud II increased the salaries of the ulama to take their support

he needed during his reform plans (Okumu 1999, 203). He asked the Shaikh al-

Islam Yasincizade Abdulvahhab Efendi to write a booklet suggesting people to obey

to the sultan (Yasincizade, nd). In this booklet it was advised that the sultan should

be obeyed in any condition. After the abolition of the Janissaries also the Bektai or-

der was banned but the Sunni orders were not touched (Berkes 1978, 171). He also

wanted to take tekkes under the state control and even wanted to appoint the heads

(shaikhs) of the orders by state with the hands of Shaikh al-Islam (Kara 1985, 92-93).

With his efforts, even the ulama in general stopped to insist on challenging the re-

forms but had a new aim of reforming the state and society on the basis of religious

tradition. He, therefore, revived the classical rapport between religious and political

authorities.

Mahmud II did not have the qualified staff to realize his aim of centralized state

probably since the modern education in the country had been omitted for a long time.

Hence, while founding new Western type schools, he also sent pupils to the West to

speed this process. When these pupils returned to the homeland together with the

ones graduating from the schools like Harbiye (Military School), Tbbiye (Medical

School) and Mhendishane (Engineering School) dared to reform the state and so-

ciety by directly transplanting the Western institutions to the Ottoman Empire. The

transplantative legal secularism also began by this way. This was not what Mahmud

II wanted to do. These intellectuals were not aware of the Islamic and Ottoman po-

litical and legal traditions since they had no religious education. To transplant the

Western institutions seemed to them easier than reforming the state and society on

the basis of the past glorious times of the Empire. The process started by Mahmud II

with the aim of bringing back the ideology of his successful ancestors, away from his

intention, spread the Westernization as imitation to every field (Okumu 1999, 216).

Mahmud II even withdrew from declaring the Decree of Reorganization (Tanzimat

Ferman) under these conditions since the traditional state rights (hukk- hne)

would be restricted (Okumu 1999, 216).


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The death of Mahmud II was followed by the accession of his young son, Abdl-

mecid, to the throne at the age of 17. He was not interested enough in state affairs

unlike his father. Hence, the state affairs were handled by the new bureaucrats who

had Western style of education and a resulting admiration of everything Western.

These bureaucrats led by the high ranking ones like Mustafa Reid Paa were the

frontiers of this new transplantationist reform. They interestingly named their move-

ment as Tanzimt- Hayriyye (The Auspicious Reorganization) which had a religious

reference. By this, they tried to convince the new ulama and the people that they did

not aim to change the system based on the Sharia (Okumu 1999, 237-238). The

Decree of Reorganization was declared after the approval of the Shaikh al-Islam, as

much (Okumu 1999, 241). These reformists tried to save the state by granting equal

rights to Muslim and non-Muslim subjects alike (Bozkurt 1998, 284). However, other

than equality between Muslims and non-Muslims in taxation and military service,

there were not other real life innovations. The other provisions it insistently declared

were already in practice for centuries. Yet, it abolished the millet system which was

a firmly established Islamic system.

The Ottoman Penal Code of 1840 was influenced by the French criminal law but

it was still largely within the framework of the Islamic penal laws. However, its impor-

tance stems from the fact that for the first time in history, an Ottoman kanun was in the

form a secular Western code. The state sanctioned traders courts were already es-

tablished, circumventing traditional Islamic law and creating new secular commer-

cial courts. The first Ottoman secular criminal courts were established in the 1840s

in police headquarters. They were operating under a new secular penal code. A

mixed court of maritime commerce was established in 1850. In these mixed courts,

half of the judges were Western. Ottoman commercial courts were also established.

A new chain of jurisdiction was established and this chain extended upward through

the secular provincial governor to the capital, bypassing links with Sharia courts.

In 1850, the Ottoman Commercial Code was enacted. It was an adopted version of

the French Commercial Code. This is the first clear example of legal transplantation

in Turkey (Starr 1992, 29). The Ottoman Land Code of 1858 was inspired by the

French freehold farming system. The Ottoman Penal Code of 1858 was based on

the Napoleonic Code of 1810, putting aside Islamic punishments and establishing a

French-type system of courts, with tribunals of first instance, courts of appeals and a

supreme court of appeals. These were the first distinct hierarchy of a secular court


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system in the country (Starr 1992, 31). This secular criminal Code and court system

remained in operation till 1923.

As a result of these secularist attempts the new conflict now emerged not be-

tween the ulama and bureaucrats but between those who wanted to reform the coun-

try on the basis of fiqh (Islamic law) and those who wanted to completely transplant

the Western institutions and social sciences (entrk 2008, 11-12). Also, their writ-

ings appealed to two groups: those who wanted to implement a faster liberal reform

agenda and those who wanted a renewed Islamic understanding to take part in the

system denied by Tanzimat ruling elite (McCarthy 1997, 302). Actually the aim of the

both camps was the same, which was to reform the system. However, the question

was who would have the political power in the center of the state after the reforms

became successful. In other words, who would be the principal shareholders of the

central government was the main question. Reforming the state on the basis of fiqh,

though it would be successful, would give no power to the new intelligentsia and

bureaucrats, since in a state reformed in this way the shareholders of the central

state would be again the ulama class.

Therefore, the latter group preferred to modernize the state by transplanting

the Western institutions in toto in which they would have important posts. They tried

to reach their goals by introducing the ideology of Ottomanism and came together

under the association of Young Ottomans at first. They were trained in modern secu-

lar Ottoman bureaucratic schools, knew one or more Western languages, and had

lived for years in major Western capitals. As a result, they developed a respect for

western political institutions and affirmed that the state would never be modernized

unless adopting a democratic state and a constitution. Although the latter group was

so eager to reach their goals as it is seen in li Paas challenge to fiqh by wanting

to adapt the French Civil Code instead of it (entrk 2008, 17), their efforts of trans-

plantation went to naught, because they neither had an armed support nor gained

an Independence War which would make their every movement legitimate, an

achievement that their followers would get about 70 years later. Instead, the former

group with the contribution of intellectuals and bureaucrats like Namk Kemal, Ziya

Paa and Ahmet Cevdet Paa initiated the reformist movements tried to be based

mostly on the original Islamic state with regard to fiqh.


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The new secular courts founded after Tanzimat often had to resolve by recourse

to commercial law, but the judges were rarely knowledgeable about the fiqh. Ini-

tially, this problem was tried to be solved by the president of the religious court

becoming the president of the secular court as well but this proved unsatisfactory,

and a decision was made to codify the Islamic law of obligations (Starr 1992, 34). As

a result, for the first time in the Muslim history, Islamic law in the area of civil law was

codified (Majalla), which was developed between 1867 and 1876.

Even though secular commercial and criminal courts were established earlier,

the true beginning of the secular legal system can be said to start in 1868 at the di-

vision of Meclis-i Vala into two organs: the Council of State (uray- Devlet, todays

Dantay), a legislative body and a court of appeal (the Divan- Ahkam- Adliyye)

which was divided into civil and criminal sections. The Divan- Ahkam- Adliyyes

name was later changed to Adliyye Nezareti (Ministry of Justice).

In the entire Tanzimat period, the Majalla (the Ottoman Civil Code) was one of

the most characteristic achievements. It was felt that a Civil Code was greatly need-

ed and its preparation appeared on the agenda. Ali Paa proposed the adoption of

the French Civil Code but was opposed by Ahmet Cevdet Paa who supported a

Civil Code compatible with Islamic law; his view was accepted and he prepared

the Majalla (Bozkurt 1998, 292). It codified the Hanafi fiqh on transactions, contracts,

and obligations, leaving the family law out. The Majalla was applied in both religious

(Sharia) and secular (nizamiye) courts. The Penal Code and Commercial Code were

the predecessors of the Ottoman Civil Code and they were largely based upon or

inspired by Western codes. But the Majalla was purely Islamic in content but West-

ern in form, it could be said to be a joint venture between conservatists and reform-

ers, exemplifying the negotiation and compromise between these groups (Ostrorog

1927, 79). Thus, for the secularization process opposite poles reached an agree-

ment. The first secular law school, the Istanbul Law Faculty, was established in 1875

to train judges, advocates and public prosecutors for the non-Islamic courts (Bozkurt

1998, 290).

Reformers in 1876 took advantage of the chaos in the country and pressed for

a constitutional state. Young Ottomans seized the opportunity to put their ideas into

practice and the first Ottoman constitution (Kanun-i Esasi) was promulgated on 23


75

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December 1876, which also started the period known as the First Merutiyet, or First

Constitutional Period, a period of a constitutional monarchy. The 1876 Constitution

was a document that resembled written Western constitutions. It was modeled on

the Belgian Constitution of 1931 and the Prussian Constitution of 1851 (Bozkurt 1998,

285). It is the first constitution of an Islamic state in history. In the constitution, Islam

remained the official religion of the state. All subjects were declared to be Ottomans

regardless of their religion. All subjects were equal; all were to enjoy liberty; a per-

sons home was declared inviolable.

In addition to defining the main organizational structure of the state, it detailed

basic rights and liberties of Ottoman subjects. It also put that the courts and the judg-

es be secure from all external interventions; such a written principle as a result took

place in this Constitution for the first time. The 1876 constitution, for the first time,

recognized a legislative assembly (Meclis-i Mebusan), although somewhat restricted

in the exercise of its powers. This parliament was also to be partially elected by the

people. This parliament was divided into two chambers, an elected Meclis-i Mebusan

(Chamber of Deputies) and Meclis-i Ayan (Chamber of Notables), appointed directly

by the Sultan. A grand vizier would perform the duties of a prime minister with his

ministers. The ura-y Devlet (Council of State) was retained as the supreme court

of appeal for administrative law cases and was to continue its legislative function. A

new high court (Divan- Ali) was also established to hear cases against members of

the government. Meclis-i Mebusan was granted certain powers to enact certain laws

and to exercise control over the executive (zbudun 1978, 24). The entire secular

court system that evolved during the Tanzimat period was incorporated into the con-

stitution. Religious courts were retained in matters of religion.

After the promulgation of the 1876 constitution, a system of public prosecutors

and of judicial inspectors was established. The Constitution also introduced the in-

stitutions of attorney and notary public. The ministries of Justice and Religious Affairs

were united under one ministry: the Ministry of Justice and Religious Affairs (Adliyye

and Mezahib Nezareti) that had the mandate of jurisdiction of the secular nizamiye

courts, regulated by written laws. In 1879, the French Criminal Procedure Code was

transplanted that was the basis for the establishment of modern criminal courts and

for the public prosecutors. In the same year, the Civil Procedure Code was enacted

which was also modeled on the French law. In 1911, nearly 70 articles from the Ital-


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ian Zanardelli Criminal Code were transplanted into the Ottoman Criminal Code

(Bozkurt 1998, 288).

Ottoman law was developing not only through transplantation of Western Codes,

but also through doctrine, following the Western jurisprudence. Surprisingly, more

than ultra-conservatists, Western powers opposed the law secularization and West-

ernization of the Ottoman law, since they were worried that they could not interfere in

the Ottoman domestic affairs. It must be noted for instance that the Western powers

objected to the application of the procedural law to Muslims and non-Muslims alike

(Bozkurt 1998, 288). These Western powers demanded a return to the previous sys-

tem arguing that new reform attempts undermined the Capitulations and privileges

of non-Muslims (Bozkurt 1998, 290). The Ottomans had to defend the transplantation

of Western laws against Western critics who preferred to see the old system main-

tained (Bozkurt 1998, 290).

Despite secularization in several fields of law after the Tanzimat, the laws of mar-

riage, divorce, inheritance, and custody of children for Muslims continued as before.

The Majalla was the Civil Code of all Ottoman subjects, whatever their religion. As a

result, the family law and laws of inheritance and wills, and laws of charitable founda-

tions (wakfs) were not included in the Majalla as they were different from each other

on the basis of the religions of the subjects since in these areas non-Muslim minori-

ties had different and autonomous laws in accordance with the millet system (Ostro-

rog 1927, 79). Some staunchly secularist reformists objected to this situation arguing

for a total reform. A number of Western civil codes were translated into Turkish.

Some scholars even published articles comparing the French Civil Code and Majalla

article by article (Bozkurt 1998, 292-293). Without knowing that it would become the

Civil Code of Turkey 14 years later, another scholar translated the Swiss Civil Code

into Turkish in 1912. The German Civil Code was translated in 1916 (Bozkurt 1998,

293). In 1916, the Ottoman government established a committee to draft a civil code.

This committee studied Roman, British, French, German, Swiss, American, Austrian

and Hungarian laws (Bozkurt 1998, 293).

On 25 October 1917, the Ottoman Family Laws Ordinance (OFLO) (Hukuk-u Aile

Kararnamesi) was enacted. It was the first codification of Muslim family law in history.

This was an extraordinary law also in the sense that it eclectically reflected and amal-


77

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gamated the views of different Islamic legal schools (madhhab) (see in detail Tucker,

1998: 6-10). With this law, for the first time, religious courts were placed under the

authority of the Ministry of Justice (Starr 1992, 40). This law was still a legally pluralist

document since it grouped separately the rules related to marriage and divorce for

Muslims, Jews, and Christians, but authorized the qadi courts to handle cases related

to the marriage and divorce, and dowry and trousseau claims for non-Muslims. This

drew sharp criticism from the diplomats of great powers (Bozkurt 1998, 293). After

WWI, the British occupied Istanbul and forced the government to repeal this law in

1919. Therefore, the only way for the Kemalists who established the Republic in 1923

would continue this process was to secularize the civil code as a whole, which they

did in 1926 by adopting the Swiss Civil Code.

Conclusion

Unlike the European process of secularism, Turkish secularism did not come

out of a conflict between state and religion or a power struggle between different

classes. Instead, the problem of secularism in Turkey emerged as a by-product of

modernization process which began from the 18th century of the Ottoman Empire.

During this process, the aim of the reformists was not to create a secular state and

nation but to be able to protect the state from the Western powers through transplan-

tation of their modern institutions. However, such a transplantative reform process

also brought about importing the Western secular codes to the Ottoman legal sys-

tem. Yet, this secularization process during the 19th century of the Ottoman Empire

did not cause serious struggles between the reformists and conservatists as it did in

the Turkish Republic. The problem was not between those who were against West-

ernization and those who were for, but it was the problem of how this process would

be. There are some reasons for this as elaborated above.

Firstly, the political and legal traditions of the Ottoman Empire which can be ob-

served during the classical age already gave the Ottoman sultans the right to enact

new codes out of eri sources but in accordance with them. This right was practiced

through kanunnames with the appropriate fatwas of Shaikh al-Islams. Hence, Ottoman

ulama unlike the clergy in the Medieval Europe were in compromise with the politi-

cal authority on the legal issues. We can also see this tradition in the Ottoman political

discourse where Ottoman thinkers though from different genres share the opinion

that the sultan was the only authority who could introduce new regulations. This sec-


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ular consideration in legal and political realms is one of the reasons for the agree-

ment between ulama, intellectuals and political authorities during the 19th century.

Secondly, the Ottoman ulama were also statesmen who were aware of the very

aim of modernization mentioned above. They agreed upon the idea that in order to

protect the state from the Western powers they had to pretend to be like Western

states. Most of the privileges given to minorities were actually in this regard. How-

ever, since the secularization process did not touch the private spheres like family,

they also could see them in the realm of the Sharia.

Thirdly, the Ottoman people, subjects or reaya, were never actors during this

modernization process. Also, it did not change their way of life so much since mod-

ernization took place mostly in public sphere. However, when it came to the Kemalist

secularism many uprisings happened against the new style of modernization and

these subjected people turned out to be political actors.

While Ottoman secularization was not a very aim for the reformists but a by-

product of modernization process which was accepted as necessary to compete

with the West, Kemalist lacit, however, was the result of the fear that religion would

play a negative role during their planned revolutions. Therefore, the Kemalist estab-

lishment also penetrated their ultra-secularist authority to the individual level and pri-

vate lives of the citizens by secularizing also the civil realm of the legal system. Since

the Turkish people continued their religious practices and a Civil Islam emerged

against State Islam imposed by the Kemalist cadre, the problem of assertive lacit

kept its rating till today.

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