Ottoman Seculalr and Civil Law

Cambridge University Press is collaborating with JSTOR to digitize, preserve and extend access to International Journal of Middle East Studies.

http://www.jstor.org

Ottoman and Secular Civil Law Author(s): Dora Glidewell Nadolski Source: International Journal of Middle East Studies, Vol. 8, No. 4 (Oct., 1977), pp. 517-543Published by: Cambridge University PressStable URL: http://www.jstor.org/stable/162566Accessed: 04-07-2015 10:57 UTC

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at http://www.jstor.org/page/ info/about/policies/terms.jsp

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected].

This content downloaded from 130.132.173.129 on Sat, 04 Jul 2015 10:57:05 UTCAll use subject to JSTOR Terms and Conditions

http://www.jstor.org

http://www.jstor.org/action/showPublisher?publisherCode=cup

http://www.jstor.org/stable/162566

http://www.jstor.org/page/info/about/policies/terms.jsp



Int. J. Middle East Stud. 8 (1977), 517-543 Printed in U.S.A.

Dora Glidewell Nadolski

OTTOMAN AND SECULAR CIVIL LAW

INTRODUCTION

The term "secularization" is used to qualify that manner of change which occurred in the Islamic system of civil law from 1451 to I926. It refers to the processes that caused gradual revision and/or change in Islamic Ottoman and Turkish civil law and connotes a departure from the orthodox tenets prescribed by Islamic law. This

departure is a process that may create gradual or abrupt change. Also that which in retrospect is classified as a change may not at the outset be classified as such.

Specifically, this change may begin in the form of supplementation and continue in this manner without the process taking the form of major change. On the other hand there may be total change within the structure undergoing these experiences. This structure, which is the subject of discussion, is the Islamic Ottoman and Turkish civil law. The secularization process in this case represents: (I) supplementation, (2) reform (Tanzimat and the Mecelle), (3) change (abrogation of the

capitulatory system), (4) complete secular change in civil law (adoption of the Swiss Civil Code).

If the question, how could a country imbued in Islamic law adopt a form of secular law were to be asked, it would be necessary to note that the process of secularization was superseded by processes of supplementation of the Shari'a and the reception of foreign law, particularly French, in commercial and penal law. The latter two were not strictly forms of secularization because they dealt with areas of law not specifically treated in the Shari'a. The point is, however, that while these laws were not the direct cause of secularization, they indirectly affected civil law in its procedural form. The organizational effects, vested in the nature of the court system, led to the questioning of the substantive nature of civil law.

AUTHOR'S NOTE: The system of transliteration is as follows: I. Both Arabic and Turkish are used. Arabic is used when reference is made to those ele-

ments of Ottoman and Turkish law which originated in Arabic, i.e., Shari'a is used rather than the Turkish $eriat (with the exception of a direct quotation, Appendix C). Turkish is used when reference is made to titles (seyhul-Islam rather than Shaykh al-Islam) and to proper names.

2. Ottoman words are spelled according to Mustafa Nihat Oz6n, Osmanlica-Tiirkce Szliik (Istanbul, I955).

3. The Encyclopedia of Islam is used for proper Arabic nouns, i.e., Khatti-HiimSyun of Giilkhane.

517



5I8 Dora Glidezwell Nadolski

The process of secularization of civil law in Turkey was in part climaxed in I926 with the adoption of the Swiss Civil Code. During the Ottoman Empire,1 however, as early as 1451 the process of supplementing the Shari'a began with edicts known as kanfin-names and vetra (religious tribunals). Then commercial transactions with foreign powers created an impetus during the Tanzimat era for what might be called the beginnings of the reception of foreign law in Turkey. These commercial involvements enhanced the continuation and complexity of the

capitulatory system by manifestation in the trial courts. It was Turkey's desire to rid itself of the capitulatory system of I9I4 by official

de facto pronouncements and by the Treaty of Lausanne. This was not effectively accomplished until Turkey's civil legal system made it possible to abolish the mixed court system which gave non-Muslim foreigners special privileges. The mixed court system was a partial reason for the examination of the substantive nature of civil law. The outcome of this examination was the Mecelle which was begun with the intention of codifying the Shari'a. Its final form, however, eliminated family law. Had this been completed, it would have been a finished secular, civil code, but the Shari'a remained the jits civile of family law until the adoption of the Swiss Civil Code (see diagram).

Intrinsic and extrinsic factors had continually altered Turkey's legal system and created a flexible and operational network for the reception of foreign law. Thus for Turkey to adopt the Swiss Civil Code was not a drastic change in the sense of a foreign code being an alien element in a country for which it was not

designed. Although this in itself was a questionable procedure, an even more

questionable area was the adoption of a code that would drastically change that area of law which had theretofore remained under the jurisdiction of the Shari'a.

It is important to note that the division of the Swiss Civil Code most difficult to administer was, and is, family law. That was the area untouched by the Mecelle and

completely changed by the Swiss Civil Code. In other words, while other areas of law had undergone continuing change, family law, the cultural foundation of any society, had remained relatively unchanged until I926.2

In discussing the foregoing information in more detail, it is the purpose of this

paper to (i) present the historical aspects of Ottoman through Turkish law which

implemented the Shari'a in the sense that it (a) supplemented those areas of law not specifically treated in the Shari'a and (b) allowed for the reception of foreign law in the form of commercial and penal French law; (2) explain how the afore-

I Within the scope of this paper the term Ottoman Empire is used to designate Turkey and its jurisdictional territory up until I918; thereafter the geographical area is reduced to the term Turkey.

2 The only other recorded change was a law passed in 1917 which forbade polygamy. Note that the term "relatively unchanged" is used in the text because according to the findings of the International Association of Legal Sciences this law of I917 was almost totally disregarded by the villagers and therefore ineffective. See H. Z. (tlken, "The New Civil Code and the Tradi- tional Customary Law," International Social Science Bulletin, 9 (1957), 51-53



Ottoman and Secular Civil Law 519

Development of civil law and courts in the Ottoman Empire and Turkey

The Ottoman Empire

Caliphate

Seyhil-Islam

Kaniun Kanun-names

Secular Courts

Shari'a or $eria

-- ii t Religious Courts

Turkey after adoption of the Swiss Civil Code Organizational arrangement

Swiss Civil Code Medeni Kaniinu

Ministry of Justice

Court of Cassation

Lower Courts

mentioned, in addition to the capitulatory system and the Treaty of Lausanne, were factors that induced the process of secularized law in Turkey; (3) describe

the areas of difficulty in the administration of the Swiss Civil Code; and (4) describe briefly the process of civil litigation.

THE PROCESS OF SUPPLEMENTATION

Sovereigns of the Ottoman Empire3 found it necessary to supplement the Shari'a with their own enactments. In so doing, the sovereigns were faced with the com-

plex, diversified nature of a vast empire and with the problem of formulating law

3 This supplementation in the Ottoman Empire continued with the reign of Mehmed II (1451-1481) and Suleyman I (1520-I566) and thereafter.

I

-I



520 Dora Glidewell Nadolski

unspecified in the Shari'a, both within the context of a changing society. The enactments, decrees, or ordinances were termed "kanuns"4 and were primarily concerned with the law of ceremonies, areas of financial, criminal, feudal, military, and

police law. The Shari'a too, dealt with matters contained within the kanuns. There were, however, two laws, ceremony and feudal, which were not part of the early Islamic state; therefore they were solely under the jurisdiction of the sultans. These kanuns took the form of a collection which became part of the succeeding administration and through which reforms were initiated. When the kanuns became volu-

minous, were compiled according to subject matter, or acquired the name of the sultan who decreed them, they were referred to as a kanfin-name.5

Under the reign of Sultan Mehmed II (1451-1481) the process of supplementing the Shari'a continued. Although the kanun and the kanun-name were within the framework of Islamic law, the Shari'a was encountering external, secular forces. The laws (kanun-name) were secular in the sense that they em- bodied customary law, were codified, and did in fact go beyond supplementing the Shari'a. For example, hadd (punishment) was replaced by ta'zir which consisted of graduated punishments according to the degree of the crime or according to the economic status of the guilty party.6

The kanfin-name which were initiated by Mehmed II were further developed by Siileyman I (I520o-156o). When he came to power considerable disorder existed with the feudal system and the different forms of taxation. To facilitate these problems, Siileyman proclaimed kanfins.7 Under him and his successors, the administration of justice based on the Shari'a divided civil administration into districts known as kada. Within these districts a kadi was responsible for the administration of justice. He worked in conjunction with a body of scholars (kadis) who were established on a hierarchical basis with a grand mufti known as the Seyhiil-Islam, the highest officer. An important function of this office, that of determining whether or not a particular action of the government would be within the framework of the Shari'a, was accomplished by the Grand Mufti Ebuussuud

(I545-I574). This accomplishment, with the support of Sultan Siileyman, was

4 Kanfin is from the Greek word meaning rule. Kanfns were legitimized by firmans. These kanfins could not transgress the people's rights which were protected by the $eriat. See Majid Khadduri and Herbert Liebesney, eds., Law in the Middle East (Washington, I955), p. 292.

5 Kanun-names were texts of law which referred to the legislative activity and the general administration of the sultan. See Albert Lybyer, The Government of the Ottoman Empire in the Time of Suleiman the Magnificent (Cambridge, I913), pp. I56-159.

6 Joseph Schacht, Introduction to Islamic Law (Oxford, I964), p. 91. 7 Sultan Siileyman completed the following ordinances: (i) reorganization of the admin-

istration of the military fiefs; (2) codified the administration of farms in Egypt, and compiled a constitution for Egypt called the Kanfin-name Misr; (3) laid down rights and duties of the raya subjects, Muslim and non-Muslim, in respect of feudatories; and (4) dealt with police regulations and penal laws. See "Kanun-Nama," El2, III, 724. Note that Lybyer (The Govern- ment of the Ottoman Empire, p. I59) contradicts the idea that Siileyman's laws were in the form of a kanfin-name.




effected by creating agreement between the Shari'a and the administrative law of the Ottoman Empire (kanun). Ebuusuud formulated a compromise between the Ottoman fiscal institution of land law and that of the Islamic concept of waqf.8 That is, principles concerning state land are based upon custom (urf). He also limited the powers of the kadis which set a precedent for allowing reformers and modernists to introduce change in Islamic law.9

Significant reform measures under Selim III (1789-I807) and Mahmud II (I808-I839) continued in the Ottoman Empire.10 Of legal importance, however, were those reforms of Mahmud in I834. He decentralized the office of the Sadri- azam (grand vizier) by appointing a chief minister with deputy ministers. The Seyhiil-Islam was given jurisdiction of the Shari'a courts and Muslims. The former power of interpretation in temporal matters was denied. This measure cur- tailed the $eyhiil-Islam's activities with respect to general reforms. Since the Shari'a courts were to handle religious matters only, this meant that Mahmud found it necessary t6 establish secular law outside the jurisdiction of the Shari'a, yet sanctioned by it. He thus ordered the establishment of a legal council which formulated codes defining the duties of government officials and judges.l1

Such legal reform measures were foundational in terms of those that were begun with the Tanzimat reform period of I839.12 Previous reform measures had been instigated by indigenous forces, but the Tanzimat period, as it ushered in the impact of the European economic system, created further marked economic distinctions between the Muslims and non-Muslims.13 What was to be done when it seemed that the increasing involvement with Europe demanded changes with which the reform measures of the Tanzimat attempted to cope? The legacy for change within the Ottoman legal structure therefore rested with the capabilities of those reforms of the Tanzimat period.

THE TANZIMAT

With the inauguration of the Tanzimat Charter (Appendix A), differences between the forces of secularism and the Shari'a became formalized, because the

8 For a discussion of waqf, see Khadduri and Liebesney, eds., Law in the Middle East, pp. 203-222.

9 Schacht, Introduction to Islamiic Law, pp. 89-92. This compromise increased the $eyhiil- Islam's power which Selim III later wanted to crush, and which Mahmud in 1834 significantly changed. The mufti was empowered with the right to issue a fetva (fatwa) which was considered his legal opinion.

10 Niyazi Berkes, The Development of Secularism in Turkey (Montreal, I964), pp. 23-I36. 1 Ibid., p. 98. 12 Tanzimat means the act of giving new order to the structure of the state. For a classical

study of the Tanzimat, see Edward Engelhardt, La Turquie et le Tanzimat (Paris: 1882); and ReSat Kaynar, Mustafa Resit Pasa ve Tanzimnat (Ankara: I954).

13 The non-Muslims developed a capitalistic system in which they became underwriters for tax farmers and usurers. They had their own bank in Istanbul. See Berkes, The Development of Secularism in Turkey, p. I43.




charter was not legitimized by the $eyhiil-Islam. This official sanction was considered necessary since the reforms definitely involved the Shari'a. The nonob- servance of this procedure would undoubtedly serve to create continued friction between the two pronounced subjects of the entire charter, the political and reli-

gious. Not only friction existed, but the charter, in delineating its purposes, did not include specific regulatory measures within the separate divisions of the Tanzimat

(Appendix A). For example, the charter did not handle the details of the functions within the judiciary or its interdependence from the executive and legislative. Further unrest would continue when reforms reached the judiciary.14

The Tanzimat was at the same time complex and contradictory for the following reasons. First, it was divided into two parts, the Khatt-i Humnyun of Giilkhane of

1839, and the Khatt-i Hiimayun of 1856. This two-part division occurred as a result of the failure to carry out the 1839 decrees, thus the I856 decrees were promulgated. Second, the Grand Vizier, Reshid Pasha of Giilkhane, attempted to satisfy the

European powers with respect to their intervention in the internal affairs of the

Empire and, at the same time, to reestablish confidence within the internal government. Third, the European powers, while pressing for secularization and just and

equal treatment in the empire, clamored for special treatment in legal, political, and educational areas.

A fourth complexity associated with the third dealt with the various group interests: civilian officials and military officers, non-Muslim subjects (raya), Muslim subjects, and the foreign interests. These foreign interests presented continual problems not only with respect to the capitulations, but also in that they attempted to act as protectors of the non-Muslims residing in the Empire. The

complex and contradictory nature of the Tanzimat created a juxtaposition between the non-Muslims with their extraterritoriality granted by the capitulations and the reformers with their desire for the centralization of power.

By I856 the European powers requested an international agreement to carry out the reforms initiated in I839. This second division of the Tanzimat, known as the Khatt-i Hiimayun and under the direction of Ali Pasha, was a confirmation that the 1839 edicts would be enforced, and that mixed tribunals would be insti- tuted for lawsuits between Muslims and non-Muslims, with codification of laws

relating to them.15 The mixed tribunals were a result of negotiations between the

empire and the European powers having capitulatory economic and religious rights apart from the Muslims. The secular courts were formally recognized in 1847 and were independent of the Shari'a and Christian courts in that they dealt with inter-

14 Ibid., pp. I46-I47. 15 "Tanzinmt-i Khairiye," EI1, VI, 656-658. Also, $erif Mardin, The Genesis of Young

Ottonman Thought (Princeton, I962), and Bernard Lewis, The Emergence of Modern Turkey (London, I96I). It was not until 1879 that legislation of the Tanzimat was completed because of warfare with Russia and insurrections in the Slav provinces. Legislation of 1875 and 1879 put nonreligious tribunals under the Ministry of Justice.




national, commercial relations, an area that had traditionally been outside the

jurisdiction of the Shari'a. The establishment of these commercial courts16 served as an impetus for further development in the areas of criminal and civil law and extended procedures into the nizami.17

Since a major concern of this paper is the development of secular, civil law in

Turkey, attention is directed to its perilous struggles within the complexities of the Tanzimat reforms. Would it be possible or acceptable to establish secular, civil courts outside the jurisdiction of the ?eyhiil-Islam when civil matters were reli-

giously classified? What was to be done, however, when commercial or criminal cases had civil implications? It seemed that the encroachments of secularization, as they effected change in the commercial and criminal codes and courts, would also cause conflict with civil procedures as they related to each other. Moreover, the judges of the secular courts were faced with understanding civil law under the Shari'a when they were not adequately acquainted with fiqh.l8

The establishment of the Divan-i Ahkam-i Adliye (Ministry of Justice) in I868 served as a legitimate reason for considering civil, secular courts. Who could handle so delicate an undertaking? Should it be the ulema or a member thereof? Cevdet Pasa, who in I866 had left the ulema and become a secular minister, was chosen for this task. He turned to the authority of Diwan-i Daf'i Mazaliml9 which stated that secular courts were compatible and necessary to Islam.20 The next step was to codify civil law, but according to what precepts, what models? This question had undoubtedly occupied the thinking of two influential groups: one supported the adoption of the French Civil Code; the other supported the idea of codifying laws from Islamic jurisprudence. It was with the ideas of this latter group that Cevdet Pasa identified his position. His opposition to the French Code (see Ap- pendix B) attracted the attention of the government which asked him to begin the codification of the Shari'a.21

THE MECELLE

Civil codification of the Shari'a was termed the Mecelle.22 Its models and precepts were to be taken from the Hanafite fiqh which deals with obligations, civil

16 The commercial courts were labeled after the Commercial Code of I850 when they came under the jurisdiction of the Ministry of Commerce and totally outside the jurisdiction of the $eyhiil-Islam.

17 The nizami were statutory court systems of the penal courts which were first called mahakim-i cedide.

is "Medjelle," EI1, IV, 449. 19 A tract written originally in Persian by Jalal al-Din Dawwani. 20 Berkes, The Development of Secularism in Turkey, p. I65. 21 Ibid., p. i68. 22 Mecelle means a digest of legal rules and principles; the complete title being Majallat-i

Ahkamli Adliyc (The Book of Rules of Justice), also referred to as the Ottoman Civil Code. For an interesting version (dialogue style) of the Mecelle, see Count Leon Ostrorog, The




procedure, and contracts.23 It was not definitely a civil code, because it did not con- tain that portion of the Shari'a which treats procedures of family, marriage, and inheritance.24 It is notable that while the omission of the aforesaid would seem to evidence a weakness of the Mecelle, Onar cites another reason:

The real weakness of the Majalla lay in its rigidity; since its provisions were based on un- changeable principles of the Islamic religion it could not be adapted to the needs of a rapidly changing society. Although its compilers tried to codify principles that would fit the needs of the people, their sources were limited. They restricted themselves to the principles and opinions of the Hanafi jurists and could not make use of the opinions of jurists of other schools.25

WThile both these positions clarified an incomplete code, it would seem that a civil code which was not permitted to perpetuate itself through the regulation of family, marriage and inheritance laws could not survive, especially since secular, civil courts had been established for the professed purpose of adopting or compiling a new civil code.

Just as the Tanzimat era began and continued in a complex, contradictory manner, so it came to a close in 1879. At this time the Mecelle was still an incom-

plete code according to the process of secularization. Moreover, the action of the I839 and I856 declarations was a similar problem in I879 when the foreign mis- sions would not recognize the code of civil procedure or the execution of judgment. As a result the latter were not applied to the mixed courts, and the capitulatory system still existed.

One can grasp a sense of this complex, contradictory nature of the Tanzimat

period and of the struggle within the Empire to meet the external, economic encroachments of the European Powers. At the same time the Empire endeavored to accommodate and adjust these external pressures with those internal problems, which were in contradiction with the external as they implied disruption and

change. Not only were the external, personality forces complex and contradictory within themselves, but the internal forces were of similar character.26

At this point evidence would lead one to believe that if the Empire were to continue to secularize its system of law completely, at least two factors were preventing

Angora Reforms (London, 1927), pp. 8I-99, and see S. Mahmassani, Fal-safat Al-Tashri Fi Al-Islam (Leiden, I96I), trans. F. J. Ziadeh, pp. 42-47.

23 Berkes says that Cevdet's thesis did not please the European Powers or the ulema; moreover, the $eyhiil-Islam regarded the entire matter as his jurisdiction rather than that of the Ministry of Justice. "His opposition, which caused an interruption in the work of the committee in I870, illustrates what was regarded as the specific prerogatives of the religious institutions as opposed to the secular prerogatives" (The Development of Secularism in Turkey, p. I69).

24 The text of the Mecelle is found in the code collection Dustur, Medjelle-i Ahkam-i Adliyc Sharhi by H. M. Diya al-Din (Der-i Se'adet 1311); see also George Young, Corps de Droit Ottoman, Vol. VI (Oxford, 1906).

25 Khadduri and Liebesney, eds., Law in the Middle East, p. 307. 26 Richard Metternich of France was saying to the empire: "Build your government upon the

basis of adherence to the religious institutions which are the essentials of your very existence. Do not destroy your ancient system in order to build a regime that would not fit your customs




it: the capitulatory system upholding the unsystematic duality of the mixed courts which the Mecelle tried to rectify, and the incompleteness of secular, civil law within the Mecelle. Of these two questions, the Empire first turned its attention to the legitimacy of the capitulatory system in I914. Before discussing this system it must be noted that Turkey had experienced a revolution in I908,27 had been involved in World War I, and that the Empire had been gradually crumbling even before 900o; that it in fact did not exist after I918.28 After this date what had been the Ottoman Empire was geographically and politically reduced to Turkey proper.

THE CAPITULATORY SYSTEM

When the Ottoman Empire announced in 1914 that it was abrogating the

capitulatory system (see Appendix D), the Western world questioned its au-

thority to do so on the basis of international law, asserting that the termination could occur only if (I) the capitulations are no more than unipartite agreements terminable at will; (2) there is freedom of termination under the "change of condition" doctrine; (3) they are in the form of treaties which do not survive belliger- ency; (4) international law can have no binding force upon a nation subject to a

capitulatory regime.29 The Empire informed the powers that these special rules had been extended to

non-Muslim subjects as special privileges. They therefore remained under the autonomous jurisdiction of the Ottoman Empire and were not subject to international law. France, Great Britain, and the United States refused to accept this dictum, declaring that the capitulations had been established by treaties. They even tried to reestablish the capitulatory system through the Treaty of Sevres of T920.30

They continued to be persistent about this matter despite the fact that from the period of 1914 until 1923 the Entente had secured the right to have its legal privileges protected by the consular courts under the auspices of the American Em-

bassy.31

Turkey continued to be faced with the Western Powers questioning its jurisdic-

and way of life. Do not borrow from European civilization institutions that do not agree with your institutions, because Western institutions are based on principles that are different from those forming the bases of your empire." On the other hand, Stratford Canning of Great Britain believed that civilization and reform could come to the East only through the spread of Chris- tianity. Berkes, The Development of Secularism in Turkey, p. I49. Then the contradictory, internal forces as already described represented those who wanted secularization as opposed to those who upheld the doctrine of the Shari'a.

27 For details of the revolution, see Lewis, The Emergence of Modern Turkey, pp. 203-205. 28 For details of these three factors, see Berkes, The Development of Secularism in Turkey,

pp. 289-337, Kemal Karpat, Turkey's Politics (Princeton, 1959), pp. 3-98. 29 Lucius Thayer, "Capitulations of the Ottoman Empire," American Journal of Interna-

tional Law, 17 (1923), 224. 30 Note that Austria, Germany, and Russia had relinquished their rights and agreed to abide

by the abrogation as set forth by the Ottoman Empire. 31 Thayer, "Capitulations of the Ottoman Empire," pp. 229-230.




tion and even its sovereignty! How was Turkey, which was no longer an empire, no longer empowered by the Caliphate-Sultanate regime (thus without an established ruler except for the triumvirate assuming the reins of government during World War I), to finally rid itself of the capitulatory system? For a number of reasons this granting of privileges was a source of irritation to Turkey, particularly in that such a system challenged the sovereignty of a new, insecure nation attempt- ing to centralize itself. The mixed court system litigating in cases involving non- Muslim subjects required the presence of a functionary or dragoman from the subjects' consulate. This arrange-ment was a continual source of confusion for the Turkish judge whose decisions were compromised and lacking in a basis of jurisprudence.32 lWhy should a systeml which was linked with the government of the Middle Ages continue to harass Turkey?33 Under what circumstances would they be able to completely revoke the remaining vestiges of the burdensome capitulatory system ?

THE TREATY OF LAUSANNE

The second attempt to abrogate the capitulations after the I914 pronouncement came with the Treaty of Lausanne of I923. This treaty served as a vehicle, an

opportunity for the airing of grievances seeking a settlement. Turkey's contribution to this treaty was again the proposal to abrogate the capitulatory system. Turkey's plea for abrogation was finally accepted by France and Great Britain, but the United States by I927 had not accepted this part of the treaty.34

The only stipulations of the treaty related to non-Muslim foreigners in judicial affairs. In which case Turkey agreed to ( I) employ foreign legal advisers to receive

complaints and exercise surveillance of the administration of justice; (2) the concession that foreigners may settle questions concerning personal status according to their own laws and customs in their own national courts; and (3) recognize in Turkish courts private agreements in civil matters arrived at by the parties con-

32 Jasper Yeates Brinton, "Turkey's New System of Laws and Courts," Current History, 25 (January, I927), 498-50I.

33 For a historical and interesting interpretation of the capitulatory system, see Nasim Siisa's The Historical Interpretation of the Origin of the Capitulations in the Ottoman Empire (Baltimore, I930). He agrees with De Rausas that the capitulatory regime had its origin in a once universally observed principle of "personality of law" by which the foreigner carried his own laws wherever he went. There are three spellings for this author's name: Soosa, Siisa, and Sousa.

34 Opposition to the treaty was based on the absence of definite guarantees concerning naturalized American citizens of Turkish origin and sympathy for the Armenians whose national aspirations had been sacrificed by Allied Powers at Lausanne. The United States did, however, in 1927 enter into an agreement with Turkey which stated that there would be the establishment of diplomatic and consular relations on the basis of the principles of international law. See Phillip M. Brown, "The Treaty of Lausanne," American Journtal of International

Law, 21 (1927), 503-505.




cerned.35 These stipulations according to Europeans needed clarification. There- fore Lord Curzon proposed the participation of "conseillers legistes" in the trial of non-Muslim foreigners. He not only made this proposal, but suggested that these "conseillers legistes" act as an advisory board during a five-year modernization

period of the judicial organization.36 Such proposals evidenced the reluctance of the West to accept the finality of ab-

rogation and the desire to continue protective measures for non-Muslim foreigners involved in Turkish lawsuits. What further measures should Turkey take in order to secure its sovereign, independent position ? The capitulatory system had served as an impetus for regulating commercial relations between the Empire and Europe by the formulation of commercial codes and courts and penal courts. These in turn created conflict with the Mecelle in cases evidencing the interrelation and overlapping of penal and civil law. Thus if the process of the secularization of Turkish law were to continue, the Mecelle as an incomplete civil code, would continue to be in

disharmony as a partly functioning entity within the secular civil courts. That is, these courts could not handle questions of law relating to family, marriage, and inheritance as they were under the Shari'a and adjudicated separately. The question of civil law thus came to the attention of the Turkish nation especially after Atatiirk succeeded in abolishing the Caliphate in I924. Since Western Powers were reluctant to completely accept Turkey's final push for total abrogation of the capitulations (as a provision of the Lausanne Treaty), this served as another reason to examine the status of civil law.37 Atatiirk, in favor of adopting a Western civil code, spent the two-year period from I924 to 1926 persuading the nation and the Istanbul

faculty of law of the importance of doing so.38 (See Appendix B for Atatiirk's

speech.) The remaining question was which Western code to adopt after it was decided

that previous attempts to draw up codes based upon custom and practice, and com-

pared with Western codes would be a time consuming, laborious process. The minister of justice had studied law in Switzerland and was therefore in favor of adopting the Swiss Civil Code as opposed to the French or German codes.39 Finally, after considerable deliberation, the complete Swiss Civil Code, translated into

35 P. M. Brown, "From Sevres to Lausanne," American Journal of International Law, 28 (January, 1924), I14.

36 P. M. Brown, "The Lausanne Conference," American Journal of International Law, 27 (April, 1923), 292-293.

37 The Treaty of Lausanne imposed upon Turkey the obligation to provide for non-Turkish minorities an adequate, modern legal system. It has been suggested that the obligation arising under the Treaty of Lausanne was the prime fatcor which brought about this large-scale reform, for rather than adopt a modern, Western law for the minorities and retain the old local law for the Turkish population, Atatiirk preferred to have one law for all. See K. Lipstein, "Reception of Foreign Law in Turkey," International Social Science Bulletin, 9 (I957), 7I.

38 For a discussion of Atatiirkism, see Kemal Karpat, ed., Political and Social Thought in the Contemporary Middle East (New York, 1968), pp. 322-327.

39 Ostrorog, The Angora Reform, pp. 87-99.




Turkish, was accepted by the Grand National Assembly in I926. This transaction meant the abandonment of the dual court system, religious and secular, final abro-

gation of the remaining vestiges of the capitulatory system, and the abolition of the Mecelle. Justification for the adoption of the Swiss Civil Code was given by the Minister of Justice Esad, in a speech delivered before the Grand National As-

sembly as he presented the new code to the Prime Minister.40

The Swiss Civil Code, The Medeni Kaninu

The adoption of the Swiss Civil Code (see Appendix C) was a radical, revolu-

tionary move in that it meant the disestablishment of family, marriage, and inheritance law, the crux of Islamic law. The move carried with it the necessity of justi- fying the act, which the preamble of the new code attempted (see Appendix B for

preamble). An opposing point of view concerning the question of the revolutionary act by the acceptance of such a code was taken by H. N. Kubali:

Modernization and secularization have been responsible for reception of foreign law in Turkey.... The adoption of the Swiss Civil Code was not such a revolutionary change, because it is the last stage in an evolution which had been going on beginning with the Kanun system.... Beneath the empire's ostensibly religious super structure, a national and secular system of law was continually developing. . . . The revolution brought about by Atatfirk did no more than put an end to the dualism of the earlier regimes. ... Of course there were problems and clashes between the reformative spirit of the laws received and the conservative nature of the social set-up in the receiving country.41

Further attempts at justification centered on equating the necessity of the adoption of a secular, civil code with that of the secularization that had already occurred in the Ottoman Empire and the new nation state of Turkey. Besides, with the abolition of the Caliphate and the guarantee of acceptance of the abrogated capitulations by the West as soon as a civil code was completed, what further reasons for justification were needed ? While such a measure made the West cognizant of the sover-

eignty of the new nation state and enhanced the prestige of Turkey on an international scale, what would be the internal repercussions of this new code ? This was the

question such personalities as Ataturk, Esad, and their supporters did not wish to

pursue at the expense of time. In discussing the Swiss Civil Code as it applies to Turkey, attention is given to

the following areas of substantive and procedural law: ( I) the findings of the Inter- national Association of the Legal Science meeting of 1955; (2) judicial organization; (3) the course of an appeal; (4) international private law; and (5) special problem areas.

40 Albert Lybyer, "Turkey Walks Abreast with the Modern World," Current History, 24 (July, I926), 576-582. Note: the Swiss Civil Code was adopted because (I) it was the most modern at that time; (2) it was written in simple language; (3) the Turkish Minister of Justice had studied law in Switzerland, and (4) Switzerland was a neutral country. See Turgrul Ansay. Ainerican-Turkish Private International Law (New York, 1966), p. Io.

41 H. N. Kubali, "Modernization and Secularization as Determining Factors in the Reception of Foreign Law in Turkey," International Social Science Bulletin, 9 (I957), 65-68.




At the meeting of the International Association of Legal Sciences in I955 in Istanbul, reports were compiled and ideas presented relating to the problems of the reception of the Swiss Civil Code in Turkey. A reasonable length of time, ap- proximately twenty-nine years, had passed since the inauguration of this code to

provide a basis of evaluation. Questioning and investigating revealed the following:

An inquiry into the Ministry of Justice revealed that of the 937 articles of the Swiss Civil Code, only 335 by 1955 have been used effectively, that in the case of two-thirds of the articles no circumstances to which they are applicable have emerged. Thus an investigation of the country's mores and customs seems necessary with the idea of amending the laws and bringing it in line with the needs of social life. Also Turkey's effective assimilation of a foreign legal system requires the country's modernization. . . . So, emphasis must be placed upon the mores and social reform of the country.42

Members of the committee came to the conclusion that the two most difficult areas

attesting confirmation of the Swiss Civil Code were family laws (marriage, di-

vorce, and succession and inheritance) and land laws. With respect tQ family law, the new code had acted as an instrument formulating

new social and family customs and creating a different set of moral values and attitudes.43 The problem of complying with a monogamous, civil marriage as opposed to a religious and possible polygamous marriage posited the citizenry with a moral choice. It became a moral choice in the sense that societal pressure in the

larger cities (as they became adjusted to the new code) set the pattern and made it seem immoral to disobey the law by having more than one wife. Since the rural populace had had a tendency to marry at an earlier age than that fixed by the new code, legislation by the Court of Cassation44 found it necessary to change the age from twenty to seventeen for men, and from eighteen to fifteen for women.45 An- other problem existing in rural society was the remoteness of the new civil courts in terms of not only location but also attitude. If anyone desired to marry outside the age set by the code, it was necessary to secure permission (a formal dispensa- tion) from a civil court. Rural citizenry were reluctant to go through the procedure of a civil, registered marriage with the district belidiye (official bureau), or to

relinquish their ceremonial marriage practices which accompanied the marriage contract.46 The refusal of villagers to conform to the standard age set by the code

42 tVlken, "The New Civil Code and the Traditional Customary Law," p. 52. 43 K. M. Findikoglu, "Causes of the Reception," International Social Science Bulletin, 9

(i957) 19. 44 The function of this court is explained below. 45 H. V. Velidedeoglu, "The Reception of the Swiss Civil Code in Turkey," International

Social Science Bulletin, 9 (I957), 63. This article, however, misquotes the age. See the legal document by Ismail Akgiin, Turk Medeni Kanunu (Istanbul, I967), pp. 51-52. Translated, article 88 of the code states that the marriageable age for men is I7 and for women I5. With permission it may be I5 for men and I4 for women. Compare this with the Swiss Civil Code, article 96, which states that the marriageable age for men is 20 and for women I8, and with exception it may be I8 for men and 17 for women. See Ivy Williams, The Swiss Civil Code (Oxford, 1925), p. 22.

46 Before the adoption of the Swiss Civil Code (Medeni Kanunu), three conditions were



530 Dora Glidezwell Nadolski

or to officially register their marriage created a situation in which their contractual

marriages, transacted according to Islamic law, were considered illegal and their children illegitimate. To try to remedy this problem, legislation by the Court of Cassation was passed in 1932, I934, and I945--1950 accepting these marriages and

legitimizing the children. This legislation was retroactive rather than prospective or perspective because it did not treat or make provisions for the inherent nature of the problem.47

A suggestion for dealing with this problem has been proposed by a sociologist of Istanbul University. His reasoning was based on the religious needs of the populace as indicated by the desire to continue the practice of ceremonial, religious marriages and the establishment of the Faculty of Divinity at Ankara University in 1944, and of schools to train religious leaders (imam) for meeting the religious needs of Turkey.48 The idea was to employ the trained imams as civil marriage officers who could perform a dual function in meeting the requirements set by law and in meeting the customary, religious needs of the rural populace. The sociologist Findikoglu further substantiated his reasoning by stating that "the institution of

religion is a source of indoctrination and representative of a religion which is a most effective educational element. If it is desired to give firm roots to the reception of foreign law in Turkey, this source of indoctrination and this educational elenient must be used. Use must be made of the social function of the institution of the imam who is the leader in religious matters."49 No recent publication or enacted legislation indicate that the foregoing suggestions have been utilized.

In addition to the abridgment of the marriageable age factor and enacted legislation to legitimize unlawful and unregistered marriages, the new code conflicted with the Shari'a respecting the matter of divorce. Under Muslim law, termination of a contracted marriage existed in three degrees, and could be transacted only by the qadi or the husband,50 whereas the Swiss Civil Code did not include provisions for unilateral (husband or qadi) repudiation or divorce by consent. With the new

code, each party was considered sui juris in the matter of divorce. The new code, however, made provisions for divorce on the grounds of mutual incompatibility, thereby enabling the parties involved, the courts, and the judges, a measure of

flexibility in determining and interpreting the essence of what connoted incom-

patibility. In cases where one party or both parties want a divorce but cannot

required for the validity of the marriage contract: (I) it must not represent limited duration; (2) it must be published and made known: (3) there must be no impediment of relationship. For specific details see Khadduri and Liebesney, eds., Law in the Middle East, chapter of family law by Muhammad Abu Zahra, p. 133, also pp. 132-178.

47 Lipstein et al., "Reception of Foreign Law in Turkey," pp. 70-8I. 48 Some of these schools referred to as Imam Hatip Okulu share the same building with the

secular, academic high school (lisesi) in the seat of the province. For example, in the Sakarya province the morning session is devoted to the secular high school and an afternoon session is held for the training of the imam.

49 Findikoglu, "Causes of the Reception," pp. I5-I6. 50 Khadduri and Liebesney, Law in the Middle East, pp. I48-149.




establish it on the grounds of adultry, attempt on life, crime, desertion, or insanity, they rely on incompatibility (referred to in the code as domestic disturbances).51

With respect to succession and inheritance in family law, conflict between former Islamic law and the new code existed. Regarding succession in Islamic law there were two types, optional and compulsory, which referred to ownership of property resulting from death. Regarding inheritance between spouses, the Qur'an made

provisions for relatives who were descendants.52 In cases where there were no relatives, all the property went to the remaining spouse.

The new code introduced equality of shares between sexes with respect to inheritance. According to the proceedings and findings of the commission, the matter of equality of shares seems to have been accepted. The difficulty with the new code, however, arose with its exclusion of parents when there were descendants to inherit that portion which, under Islamic law, accorded the former a share.53 In other words, under Islamic law, the ashab al-furud (assured share) was dis- tributed among agnate and sometimes cognate relatives.54

Land laws created the second area of conflict with the adoption of the Swiss Civil Code. Reformed land laws had occurred during the Ottoman Empire, especially during the Tanzimat period in 1867 when foreigners were granted the right to own property, and laws governing the inheritance of state lands were changed. Then with the land law of 190o, the right to own real estate was granted to Turkish

corporate entities. Additional provisions of this Land Law classified the different kinds of land according to state lands and public lands.55

These land reforms were moderate compared with the change created by the Swiss Civil Code. The new code called for a cadastre (land register) and registration of the title meaning that land formerly belonging to the state and held as tenants by the villagers would be privately owned and would have to be registered. The problem would be the transaction of the transfer and sale of land before complete registration was enacted. The Ministry of Justice and the Court of Cassation were faced with the problem of enacting a legal principle which would allow the sale or transfer of land that had not been registered. In 1946 the Court of Cassa- tion, on the basis of sui generis, determined that unregistered land sold or transferred unregistered, constituted and conferred legal property rights. This measure legalized transactions of unregistered land, but it could not completely cope with the reluctance of the villager to conduct conveyances of land in the presence of a land register officer.56

51 See Akgun, Turk Medeni Kanuni, article 134, pp. 49-204. See also Velidedeoglu, "The Reception of the Swiss Civil Code in Turkey," pp. 63-65.

52 Khadduri and Liebesney, Lacw in the Middle East, pp. I60-I67. 53 Velidedeoglu, "The Reception of the Swiss Civil Code in Turkey," pp. 63-65. See also

Akgun, Turk Medeni Kanunu, pp. 207-305. 54 Khadduri and Liebesney, Law in the Middle East, pp. I60-I67. 55 Ibid., p. 287. 56 Velidedeoglu, "The Reception of the Swiss Civil Code in Turkey," pp. 63-65, and




Procedural Law relating to the Swiss Civil Code

The Ministry of Justice is the central control agency over the courts of the sixty- seven provinces of Turkey. It may inspect lower courts, but not the Court of Cassation. This latter court is the highest and only court for appealing a case having first originated in a lower court. In other words, there are no intermediate courts between the lower courts and that of the Court of Cassation.

The Ministry of Justice, the Court of Cassation, and the Grand National As-

sembly must work together in the matter of changing or adopting law. For ex-

ample, the Grand National Assembly and the ministry collaborated in the adoption of the Swiss Civil Code in I926. Then the Court of Cassation, with the approval of the Grand National Assembly and the Ministry of Justice, changed the age for marriage and settled the ubiquitous character of land registration on the principle of sui generis.

The historical account of laws by codes as represented in the kanun-names, the

Tanzimat, the Mecelle, and the Swiss Civil Code attests the fact that jurisprudence in Turkey is based and relies upon a codified system of law. Strict reliance upon codes has had a tendency to limit interpretation of law on the part of judges, thereby failing to establish law by precedent which could help handle cases in which the code lacks specific information. This inability to establish law by precedent further restricts the possibility of establishing law for joint claim cases. For ex-

ample, a case handled by the Civil Court of Cassation did not permit a wife to join a claim for temporary support with a request for reconciliation proceedings pre- paratory to a divorce case.57

Section one of the Civil Code of Procedure states that the decision for any case for which provision is not made in the Civil Code is to be based upon custom. If no custom exists, then it is the responsibility of the court.58 Reluctance on the part of

judges in the matter of interpretation might in part rest with the foregoing state- ment in that "Turkish judges like to believe that the Grand National Assembly make all laws. They are not anxious to recognize that the process of interpretation may be, in fact, the process of legislation on a small scale. There are a few judges in Turkey who, confident of their knowledge and capacity, dare to make law by process of interpretation. They enjoy high prestige among lawyers of Turkey."59 Another problem affecting interpretation is a judge's heavy case load and lack of time. If it were possible for judges to have time to consider previous decisions per- taining to a specific case, interpretation might be facilitated. The problem is further

Lipstein, "Reception of Foreign Law in Turkey," pp. 7o-8I. See also Akgun, Turk Medeni Kanunu, articles 887-909 on Possession, and articles 910-935 on Registration, pp. 309-512.

57 Case of Imran Oktem, Hukiik Usulu Muhakemleleri Kantnuit Ictihatlar, October I9, 1932,

p. I60. See also Delmar Karlen and Ilhan Arsel, Civil Litigation in Turkey (Ankara, I957), P. 37.

58 Karlen and Arsel, "Code of Civil Procedure," pp. 50-52. 59 Ibid., p. 52.




complicated, however, by the fact that those written cases which can be found on file do not evidence interpretation.

Judges don't have time to write reasoned opinions in support of their decisions. The judges don't look upon themselves as writing for the information of the public or even for the information of the bench and bar, but as writing for the trial judge below and the parties and their lawyers to tell them how a particular case is to be resolved. The thinking that judges and lawyers do is lost because it isn't written. Hence, each new case involves starting fresh from the codes [sic].60

The role of the judge is superior to that of a lawyer in all court proceedings. From the beginning of a case all questioning for evidence is handled by the judge. The lawyer, however, may suggest questions to be set forth by the judge. The

lawyer's work is more or less limited to that of procuring witnesses and arranging for their'being summoned to court, to submit arguments and papers to the court, and to identify at the outset of a case the provision of the Civil Code relied upon in each instance. This latter responsibility is one that lawyers are most reluctant to fulfill, because if they have selected the wrong provision, the court cannot issue relief. If the lawyer would petition for an amendment, the prerogative of transfer-

ring the case to its legitimate code can be granted. Therefore, the correct code for a

given case is usually established as the case proceeds rather than in the beginning.61 The procedure for appealing a case before the Court of Cassation62 is made by

reference to the specific code or statute to which the case applies. An appeal, how-

ever, will be heard even if it is incomplete.63 This arrangement has created a burden of excessive cases brought before the Court of Cassation and a heavy case load for

judges. After a decision has been rendered from the Court of Cassation, either party involved has the prerogative of asking the chamber which handled its case for a reconsideration. In this situation the chamber usually abides by its original decision. If the chamber's final decision opposes that of the lower court, then it is returned to that court for action.64 "All the decisions of the Court of Cassation are institutional rather than individual. No authorship is attributed to any opinion.... It is signed by all judges who participated in the decision. Thus there is no opportunity for study of the development of thought of an individual judge."65

A greater majority of the case decisions from the lower courts which come to the Court of Cassation deal with procedural rather than substantive law. In cases in

60 Ibid. 61 Ibid., pp. 32-85. According to this system, the lawyer makes little or no preparation before

the actual case. No preparation can also be attributed to the numerous adjournments the court experiences as a result of the failure of parties involved to be present.

62 The Court of Cassation is divided into fourteen chambers, each with a president. Five chambers are penal. Of the other nine civil chambers, one is for bankruptcy, one for commerce and admiralty, the remaining seven deal with ordinary civil litigation (ibid., p. 124).

63 See articles 433-435, ibid., pp. I32-I34. 64 The Court of Cassation does not have the power to order the lower court to follow its

mandate. See articles 428-429, ibid., pp. 130-134. 65 Ibid., p. I34.




which substantive law is handled, the decision usually refers to a code provision not

carefully evaluated by the lower court. A lack of understanding and communica- tion exists between the lower court and the Court of Cassation in that the latter does not explain or interpret in written form its reasoning in the application of a

particular code to a fact situation. Even the highest court conceives of itself not as a lawmaking body but as a law-applying body. Respecting the matter of the lack of written, interpreted decision, a system of classifying and indexing cases decided

by the Court of Cassation was begun in I955. This reference system was for members of this court only. The Alinistry of Justice, however, has access to these files and decides which cases are to be published in the Adalet Dergisi, the ministry's official publication.66

PRIVATE INTERNATIONAL LAW

Knowledge of private international law is important for foreigners in Turkey because they are not exempt. It is difficult to be informed on this subject because there is not a separate code regulating private international law but only specific articles in the Swiss Civil Code (Medeni Kanfin), the Code of Civil Procedure, and in the Constitution.67 Since there is no separate code, there is no case law in this area.68 It is important, however, to be aware of those provisions which do relate to private international law. For example, article eighteen of the Code of Civil Procedure states explicitly that Turkish courts have exclusive jurisdiction in suits related to personal status between a Turkish citizen and an alien. This includes

divorce, separation, and annulment. Even article 540 of this same code states that decisions of foreign courts in such matters shall not be applied or enforced in

Turkey.69 This principle of the exclusive jurisdiction of Turkish courts is based on the

theory that it is the responsibility of a nation to protect its citizens. Nationality becomes a key factor in determining private disputes in international law.

The Turkish courts are given exclusive jurisdiction in cases relating to personal status of Turkish nationals regardless of whether they are plaintiffs or defendants .... Thus where the plaintiff is a Turk, the Turkish courts will have exclusive jurisdiction even though the defendant is an alien who is neither domiciled nor resident nor physically present in Turkey and

66 Ibid., pp. I36-I39. 67 These provisions are Civil Code, articles 31 and 300, see Akgun, Turk Medeni Kanunu;

"Code of Civil Procedure," articles I8, 76, 97, 296, 537-545, Karlen and Arsel, Article 54 of the Constitution.

68 Case law in Turkey cannot be found in officially published regular reports. Chambers of the Court of Cassation have their own files of unpublished precedents. An attempt has been made by Berki and Erguney to bring Court of Cassation's decisions to the field of private international law, called Kanun Ihtilaflari; see Ansay, American-Turkish Private Interna- tional Law, p. 2I.

69 Ibid., p. 62-63.




even though the facts on which the claim is based have no relation to Turkey besides the tie of the plaintiffs nationality.70

Tlhe Code of Civil Procedure does not make specific provisions for the enforcement of foreign judgment. An exequatur (grant of enforceability) may be granted for this purpose.71 The grant is given by a Turkish court according to the following provisions:

The foreign court must have: I. Jurisdiction according to Turkish law. Where jurisdiction of Turkish courts is exclusive

the foreign judgment will not be enforced in Turkey. 2. Certain basic procedural requirements must be observed by foreign courts. The Court of

Cassation practice is to reverse a lower court decision granting exequatur to a foreign judgment rendered against a defendant who has not been served and who has had no opportunity to defend the suit.

3. The foreign judgment must have the effect of res judicata in the country where it is rendered. The finality and validity of the judgment under foreign law must be proved by a document or note which is authenticated by the court of rendition.

4. There must be a treaty of reciprocity between Turkey and the country's enforcement of the judgment of which is sought in Turkey.

5. A foreign judgment which contravenes Turkish public policy will not be enforced in

Turkey according to article 540 of the Code of Civil Procedure.72

This brief discussion of private international law has been included because it

acquaints the reader with the position of a foreigner who, for example, might be married to a Turkish citizen and divorce proceedings were to be conducted in

Turkey, and although it touches upon the Swiss Civil Code it needs further in-

terpretation.

CONCLUSION

Codification of laws had been a system to which Turkey had become accustomed

beginning with kanin-namehs. Laws were also written throughout the Tanzimat

period. Certainly George Young's masterful, seven volumes of the Corps de Droit Ottoman completed ca. I906 was a pronounced example of codification. His purpose was to familiarize the inexperienced with the domestic legislation of the Ottoman government and to establish a reference system for those enforcing the law. The Mecelle is recorded in his sixth volume.73 That Turkey was accustomed to

the principle of codification of law and the use of foreign law has been cited as

justification for the adoption of the Swiss Civil Code. To accept a foreign law without an understanding or knowledge of how it will be interpreted or used would lead to some unfavorable results. Interpretation of the new Swiss Code on the part of the legal structure and the mass citizenry became an important issue.

70 Ibid., p. 62. 71 Articles 537-541 of the Code of Civil Procedure refer to the enforcement of foreign

judgment. 72 Article 540 (3) of the Code of Civil Procedure refers to Ansay, American-Turkish

Private International Law, pp. 69-71. 73 See Young, Corps de Droit Ottoman, VI, I69-446, droit foncier, droit municipal, droit

civil.




If it can be said that the process of supplementation and secularization of civil law in Turkey began with the idea of reasoning and interpretation (Hanafi school), by formulating laws (kanun and kanin-name) not specified by the Shari'a, then the question arises as to the use of interpretation or reasoning within the Swiss Civil Code. That is, since reasoning by analogy and interpretation was considered

important to Islamic law in the Ottoman Empire and in Turkey, was it considered in the application of the Swiss Civil Code, and if so, how ?

By raising this question, it is implied that practices, customs, and procedural methods that had been operative under the Shari'a and the Mecelle were by way of

interpretation carried into the Swiss Civil Code. By inferring that (it is further

implied that the substantive and procedural categories of Swiss civil law were

interpreted and applied by Turkish judges whose style and training were different than that of legists of Switzerland. Of course after I926 the faculties of law at Istanbul and Ankara universities trained judges and lawyers in the knowledge of Swiss civil law. Those steps were fundamental, and the problem of receiving a

foreign code became threefold in nature. First, the legal structure was for the first time faced with a comprehensive, com-

plete civil code which had to be carried out. Did this mean that interpretation of a new code would raise the question of how it would be applied in a different country, or that interpretation would be limited since the new code was complete and specific, or did it mean both? Before the adoption of the Swiss Civil Code, the Mecelle had been an incomplete civil code in that it represented codification of the Shari'a with the exception of family law (uncodified) under the $eyhiil-Islam and the caliphate. With these two systems and with separate courts, interpretation and reasoning was an important function of secular and Islamic law. Overlapping cases in both

systems had to be examined for referral to the proper courts. And, too, different

interpretations existed within each system. Second, the legal structure was faced with the problem of presenting the Swiss

Civil Code to the masses primarily through the courts. Separate religious and secular court systems no longer existed. Disruption continued, however, since

restructuring of the courts became necessary. All the lower courts had to adjust to trials involving family law and the difficulties of the new land law. If the decision from the lower court seemed unsatisfactory, the case could be taken to the Court of Cassation (the highest court)74 where the case had to be completely reheard. In both situations, strict application of the code was to be the basis of decision making and not reliance upon whatever could be considered case law by precedence. This meant that the Court of Cassation was using the same methodology as the lower courts since it relied almost exclusively on the codes themselves. The marked difference, however, was the distinction in capability and understanding of the new codes on the part of the lawyers and judges of the Court of Cassation as opposed

74 There are no intermediate courts between the lower courts and the Court of Cassation.




to those occupying the seat of judgment in the lower courts.75 As has been pointed out in the section discussing the Court of Cassation, it has been reluctant to actually make law except in the two cases of changing the marriageable age and legitimizing children of unrecognized marriages, and making allowances for unregistered land.

Third, the new Swiss Code was faced with the reaction of the masses. The vil-

lagers were consistently disobeying the new law by marrying at whatever age they so chose; moreover, they failed to register their marriages with the official

belidiye. Technically the new law would not recognize these unregistered marriages and the children were considered illegitimate. If some remedy in the form of law had not been enacted regarding the question of illegitimacy, the legal system would have been faced with even more difficult problems and conflicts respecting the matter of succession and inheritance. Who would inherit from the parents if there were none other than the children, and, since they were illegitimate, who would have the right of inheritance ? Regarding the matter of registration of land, it was

necessary to establish ownership through registration. This was somewhat revolu-

tionary in that the villager became the rightful and legal owner of the plot of ground he had formerly cared for but which had been subject to the regulation of the state. This gave the villager new freedom in that he could sell this land, keep the money, and move to the city if he so desired.

Both these decisions by the Court of Cassation would not necessarily be classified as having been derived from reasoning or interpretation, since one entailed a tech- nical age change; the other decided to recognize the legitimacy of children born to

parents who had not officially registered their marriage. The decision, regarding land law was based upon sui generis and therefore utilized interpretation and

reasoning. This problem of the lack of interpretation and reasoning by judges was not dis-

cussed at the symposium investigating the Swiss Civil Code which was held Sep- tember 5-7, I955, in Istanbul. One member of the committee, H. N. Kubali felt that the Swiss Civil Code needed to be revised and that it should be done by the

judges. If judges were allowed special time for such a project, it would undoubtedly be worthwhile since by I955 only 335 of the 937 articles had been applied.76

The question is: Why is it that only about one-third of the articles had been

75 In a number of cases the Court of Cassation made a decision concerning a case brought from a lower court by pointing out specifics of an article within the code not carefully utilized in the lower court. There is no trial by jury in Turkish courts; the final decision rests with the judge.

76 Even though this paper does not deal with any changes since I955, the suggestion by Kubali has not been entertained, because the last edition of the Medeni Kanunu in 1967 records only those changes made by the Court of Cassation as already discussed. Karlen and Arsel in their book, Civil Litigation in Turkey are concerned with the interpretation of civil law primarily by judges and lawyers. These authors say that strict reliance upon codes has inhibited interpretation and that the case load of the Court of Cassation keeps judges from the opportunity of writing their reasoning in detail. The responsibility of the judges and the reliance placed upon them is considerable when compared with that of lawyers.




applied by 1955 ? Is it because the levels of culture and development are vastly different in Turkey and Switzerland and that, therefore, only certain articles could relate to Turkey ? Is it because extended interpretation on the part of the Ministry of Justice and the Court of Cassation has not been effected ? Did interpretation and

reasoning by analogy partially end with the adoption of the Swiss Civil Code, or has it been continually employed in a different manner through the task of applying the new code? These, as well as other questions, continue to face the legal structure and the citizenry of Turkey in their use of the Swiss Civil Code (Medeni Kanfinu).

Appendix A

Enactments of the Tanzimat with their dates:

3 Nov. 1839 Khatt-i sherif of Giilkhane March I840 Recognition of the Grand Council

1840 Promulgation of a code of penal laws Institution of a tribunal of commerce (tidjaret medjlisi) in the Ministry of

Commerce 6 Sept. 1843 Law relating to the formation of the contingents of the army

1845 Assembly of provincial delegates in the capital I845 Creation of a university and of establishments for secondary education

1846 Publication of an administrative code 1847 Creation of civil and criminal mixed tribunals 1847 Creation of a Ministry of Public Education

24 May I850 Firman in favor of non-Muslims 28 July I850 Promulgation of a Code of Commerce 28 Nov. I852 Firman on the administration of the provinces

I854 Division of the Grand Council into a Council for Reforms and a High Council of Justice

7 May I855 Abolition of Kharadj for the rayas and decision to enroll them in the army I8 Feb. I856 Khatt-i Hiimayun 30 March I856 Peace Treaty of Paris

1856 Foundation of an Ottoman Bank

April 1858 Promulgation of a Code of Lands

9 Aug. 1858 Promulgation of a Penal Code

April I860 Appendix to the Code of Commerce, regulating the Tribunals of Commerce, which are amalgamated with the mixed tribunals

24 May I860 Regulations regarding the Armenian Gregorian Community I86I The two High Councils joined into one

i May I86I New Regulations for Lebanon I4 Nov. I86I Code of commercial procedure

I862 Organic regulation of the Oecumenical Patriarchate

4 Feb. I863 Concession of the Imperial Ottoman Bank

Aug. I863 Code of maritime commerce April 1864 Regulations for the Jewish Community Sept. I864 Organic regulation for Lebanon

8 Nov. 1864 Law of the wilayets June I864 Law granting foreigners the right to own property

Creation of a Council of state (shura-yi dewlet) and of a high court of justice (diwan-i ahkam-i adliye)

Opening of the Lycee of Galata Seray-French.

I

I A

..9I

I

1.

.1I

I




I Sept. 1868 Law on the Ottoman nationality 19 Jan. I869 Law on the competence of the nizamiye tribunals

1869 Elaboration of the Civil Code (mecelle-ahkam-i adliye); the 16 books of the code were promulgated between 1869 and 1876

Firman on the creation of the Bulgarian Exarchate 10 March I870 Law on the administration of the wilayets 21 Jan. 1871 Law on the secularization of the Ewkaf (never put into execution)

1875 Firman reorganizing justice; the commercial tribunals transferred to the

Ministry of Justice 23 Dec. 1876 Promulgation of the Ottoman Constitution (kanun-i esasi) 20 May 1879 Organic regulation of the Ministry of Justice and Public Worship 17 June 1879 Regulation of the nizamiye tribunals

Law on the execution of judgments 22 June 1879 Code of Civil procedure'

1 "Tanzimat," EI, VI, 659.

Appendix B

Cevdet Pasa's remarks regarding the adoption of the French Civil Code, written in 1855:

With the increase in the number of Europeans coming to Turkey, and with the increase of contacts with them because of the Crimean War, the scope of trade widened. The commercial courts became unable to deal with the commercial lawsuits arising every day. The foreigners did not like to go to the seriat courts. The inacceptability of the testimony of non-Muslims against Muslims and of Musta'man (non-Muslim foreigners) against dhimmi (non-Muslim Ottoman subjects) in the seriat courts became very annoying to the Europeans and they ob- jected to the trial of the Christians in the Seriat courts. Thus, certain persons took up the idea of translating French civil codes into Turkish for judgment in the nizami courts. This idea was not acceptable because changing the basic laws of a nation would entail its destruction. The ulema believed that those who had gone astray to hold such Frankish ideas were unbelievers. The Franks, on the other hand, used to say "bring forth your code; let us see it and make it known to our subjects."'

Atatiirk's speech before the Faculty of Law on October 5, I925:

The Turkish Revolution signifies a transformation far broader than the work revolution suggests... It means replacing an age-old political unity based on religion with one based on another tie, that of nationality. This nation has now accepted the principle that the only means of survival for nations in the international struggle for existence lies in the acceptance of the contemporary Western civilization. This nation has also accepted the principle that all of its laws should be based on secular grounds only, on a secular mentality that accepts the rule of continuous change in accordance with the change and development of life's conditions as its law... The time has come to lay the legal foundations and educate new men of law satisfying the mentality and needs of our Revolution.2

The Preamble to the Swiss Civil Code in objection to its adoption:

There is no fundamental difference in the needs of nations belonging to the modern family of civilization. Perpetual social and economic contacts have . . . been transforming a large civilized body of mankind into a family ... We must never forget that the Turkish nation has de-

1 Cevdet PaSa, Tezakir I-12, ed. Cavid Baysun (Ankara, I953), pp. 62-63; in Berkes, The Development of Secularism, p. I67.

2 Full text quoted in Osman Ergin, Turkiye Maarif Tarihi (Istanbul, I943), V, I50I-4; in Berkes, The Development of Secularism, p. 470.



540 Dora Glidezell Nadolski

cided to accept modern civilization and its living principles without any condition or reserva- tion... If there are some points of contemporary civilization that do not seem capable of con- forming to Turkish society, this is not because of the lack of capability and native capacity of the Turkish nation, but because of the medieval organization and the religious codes and institutions which abnormally surround it. . .The Turkish nation, which is moving with determina- tion to seize contemporary civilization and make it its own, is obliged not to make contemporary civilization conform to the Turkish nation, but to adjust its steps to the requirements of

contemporary civilization at all costs. .. The aim of law is not to maintain religious regulations, nor to maintain any other habitual customs, but to ensure political, social, economic, and national activity at all costs.3

The concluding statements of the Preamble by Mahmut Esat represent the

esprit de corps of Turkey when the code was adopted.

The Turkish nation. . . unconditionally insisting upon all the rights which the modern age has

recognized as attributed to civilized nations, has ... by accepting this ... law, undertaken all the

responsibilities required by this code. On the day that this document ... is promulgated, the Turkish nation will be saved from false beliefs and traditions, and the fluctuations since the

Tanzimat; it will close the doors of an old civilization, and will have entered into a contemporary civilization of... progress.4

Appendix C

The Swiss Civil Code; in Turkish it is called the Medeni Kanfinu1 and is divided

into the following parts:

I. Laws of Persons (I-46) A. Natural persons B. Corporate Bodies

II. Family Law (49-204) A. Husband and Wife (marriage) B. Divorce-(article 134, domestic disturbances) C. General effects of marriage D. Matrimonial property law E. Parent and Child (legitimacy) F. Illegitimacy G. The Family H. Guardianship-organization I. Administration of guardianship J. How Guardianship ends

III. Law of Inheritance (207-305) A. Statutory heirs B. Devolution of the Estate-Opening of the Succession C. Effects of Devolution D. Partition

IV. Law of Property (309-512) A. Ownership-general rules B. Ownership of land

3 T.B.M.M. Zabit Ceridesi, Session 57, 1926, vol. XXII (Ankara, I925), p. 267 ff.; an

English translation of the code is in Lutfy Levonian, The Turkish Press (Athens, 1932),

pp. 45-53, in Berkes, The Development of Secularisn, p. 470-471. 4 Ibid. 1 For a detailed description of this outline, see Akgun, Turk Medeni Kanunu, and Ivy

Williams, The Swiss Civil Code.




C. Ownership of moveable property D. Servitudes and rent-Charges E. Mortgages and other securities on land F. Law of pledge G. Possession H. Land register

Appendix D

The Capitulatory System

Siisa takes the position that the capitulatory system did not originate on the basis of interaction of non-Muslim countries with Muslim countries, but that foreigners carried their laws with them (see n. 33). That is, the fact that basic distinctions in law (or religious distinctions between Muslims and Christians) existed between

European and Muslim law is not sufficient rationale for the origin of the capitulations.

According to Lewis, the first capitulations were those granted to the French by Siileyman in 1535. The rapport that was established between France and Turkey as a result of these capitulations seemed satisfactory and suitable for continued

purposes of conducting various foreign exchanges. Austria in 1567 and England in 1592 entered into capitulatory agreements with Turkey.

Under the capitulations, foreigners were not subject to Turkish law; they paid no taxes, their houses and business premises were inviolable, and they could be arrested or deported only by order of their own Ambassadors. Disputes involving foreigners were settled by the consular court of the defendant, according to the law of his own land. Non-Muslim Turkish subjects in foreign employ could also be given this privileged status, by a diploma conferred by a consular authority.1

It was the excessive expansion of these privileges cited in the above paragraph which justified the abrogation of the capitulatory system. The non-Muslim com- munities (Pera in Istanbul) before the mid-nineteenth century were for the most

part relatively small and mercantile in the character of their existence. After this

period of time, however, Pera had become corrupt and the foreign powers were

exploiting their privileges under the guise of expansion of special concessions of the capitulations for the foreign inhabitants of this district. As a result of this

corruption (the foreign powers were overextending their privileges for not only those foreign inhabitants of Pera, but for the foreign penetration of the Ottoman

Empire itself), abrogation of these privileges was announced in I914.

BIBLIOGRAPHY

The purpose of this bibliography is to cite relevant sources used within the context of this paper. The reader should note that references to the Encyclopaedia of Islam are those six volumes first published from I913-I928 by E. J. Brill Ltd., London. Currently the new Encyclo- paedia of Islam is being continually published (three volumes are completed). Additionally, the reader is invited to refer to the Shorter Encyclopaedia of Islam.

1 G. L. Lewis, Turkey (New York, 1955), p. 28.



542 Dora Glidewzell Nadolski

Primary Sources

Books

al-Din, H. M. Diya, Dustur, Medjillc-i Ahkam-i Adliye Sharhi. Der-i Se'adet, 1311.

Akgun, Ismail, Turk Medeni Kanmlinu. Istanbul: Matbaacilik ve Kitap?ilik Muiesseseleri, 1967.

Engelhardt, Edward, La Turquie et le Tanimnat. Paris: 1882.

Kaynar, Resat, Mustafa Resit Pasa vc Tanzimiat. Ankara: 1954.

Ozoguz, Nejat, Temyiz Mahkcemesi. Ankara: Akay Kitapevi, I944. (This work describes the general characteristics of the Turkish Court of Cassation, its history, development, organization, powers responsibilities and appeal procedures).

Young, George, Corps de Droit Ottoman. Oxford at Clarendon Press, Io96.

Journal Articles

Ozoguz, Abdiilkadir, "G6rev Uzusmazliklari ve Uyusmazlik Mahkemesi," Idare Dergisi, V. CLXXXI (July-August, 1946). (This article traces the evolution of the system for determining jurisdictional disputes in France and Turkey and describes the creation of the Turkish court of conflict.)

Ardahan, Vedat, "Adalet Teskilatimiz," Istanbul Barosu Dergisi (Jan. 1952). (This article describes the organization of courts and gives suggestions for their reorganization.)

Works in English Books

Ansay, Tugrul, Amncrican-Turkish Private International Law. New York: Columbia Uni- versity Press, 1966.

Balta, Tahsin Bekir, Organization tand Functions of the Central Government of Turkey. Ankara: Is Matbaacilik ve Ticaret, I965.

Berkes, Niyazi, The Developmenl t of Secularism in Turkey. Montreal: McGill University Press, 1964.

Brinton, Jasper Yeates, The Mixed Courts of Egypt. New York: Yale Press, 1930; second edition, I968.

Frey, Frederick, The Turkish Political Elite, Massachusetts: MIT Press, I956.

Golzuklu, Feyyaz, The Turkish Code of Criminial Procedure. New Jersey: Rothman and Co., 1962.

Gurelli, Nevzat, The Turkish Crimlinal Code. New Jersey: Rothman and Co., I965.

Karlen, Delmar, and Arsel, Ilhan, Civil Litigation in Turkey. Ankara: Ajans-Turk Press, I957.

Karpat, Kemal, Turkey's Politics. Princeton: Princeton University Press, 1959.

Karpat, Kemal, editor, Political and Social Thought in the Contemporary Middle East. New York: Praeger Publishers, 1968.

Khadduri, Majid, and Liebesney, Herbert, editors, Law in the Middle East. Washington: The Middle East Institute, I955.

Lewis, Bernard, The Emergence of Modern Turkey. London: 1961.

Lybyer, Albert, The Governm,ent of the Ottoman Empire in the Time of Suleiman the Magnificent. Cambridge: Harvard University Press, I913.

Mardin, Serif, The Genesis of Young Ottoman Thought. Princeton: 1962.

Ostrorog, Count Leon, The Angora Reform. London: London Press, 1927.

Schacht, Joseph, Introduction to Islamic Law. Oxford: 1964.




Siisa, Nasim, The Historical Interpretation of the Origin of the Capitulations in the Ottoman Empire. Baltimore: John Hopkins University Press, 1930.

Williams, Ivy, The Swiss Civil Code. Oxford: 1925.

Ziadeh, Farhat, trans., S. Mahmassani Falsafat Al-Tashri Fi Al-Islam. Leiden: E. J. Brill, 1961.

Journal Articles

Brinton, Jasper, "Turkey's New System of Laws and Courts," Current History, 25 (January, I927).

Brown, Phillip M., "The Treaty of Lausanne," American Journal of International Law, 17, I8, 21 (Apr., 1923, Jan., 1924, July, I927).

Findlkoglu, K. M., "Causes of the Reception," International Social Science Bulletin, 9 (I957).

Lipstein, K. & others, "Reception of Foreign Law in Turkey," International Social Science Bulletin, 9 (1957).

Lybyer, Albert, "Turkey Walks Abreast with the Modern World," Current History, 24 (July, 1926).

Thayer, Lucius, "Capitulations of the Ottoman Empire," American Journal of International Lae, 17 (1923).

Turlington, Edgar, "The Settlement of Lausanne," American Journal of International Law, 18 (October, 1924).

tYlken, H. Z., "The New Civil Code and the Traditional Customary Law," International Social Science Bulletin, 9 (I957).

Velidedeoglu, H. V., "The Reception of the Swiss Civil Code in Turkey," International Social Science Bulletin, 9 (1957).



Documents

Ottoman Seculalr and Civil Law