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Secular Law in an Islamic Polity:

The Ottoman Case
hsan Ylmaz*, Hseyin Gndodu
Department 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 topdown fashion by legal instrumentalism.
Keywords: Legal secularization, Ottoman Law, Turkish modernization, Kemalism,
instrumentalism.

*
Corresponding author.
E-mail addresses: iyilmaz@fatih.edu.tr (.Ylmaz), hgundogdu@fatih.edu.tr (H.Gndodu).

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Introduction
In his visit to Egypt on the 12th of September in 2011 Turkish Prime Minister Recep 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 express 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 aforesaid 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 founders 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 advice. They did not see it enough to urge the sultans to be religious so that their subjects 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 legislated 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 legitimacy 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 become 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 being 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 period of about one hundred years before the establishment of the Republic. In fact,
although the legal reform attempts quickened and more radicalized after the formation of the Republic, the Ottomans either enacted or received and adopted some
secular laws long before. In this regard, Turkish legal history presents three different 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 enacted 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 Turkish 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 discourse 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 traditions 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 institutions 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 conventional wisdom has so far argued. What if a religion itself allows for reason; promotes 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 Muhammed), did not restrict the state to a certain regime and instead it left the organization 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 Justice (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 security, 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 (Lambton 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 righteousness (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 detail 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 express 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 rulers 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 beginning 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 indispensable 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. Therefore, 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 Islahatname 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 corruption 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 religious 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 subjects 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 supported 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 political 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 (subjects) 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 Ottoman 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 customs (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 implementation 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 allegedly 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 benefit 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-Islams (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 deviated from traditions.
Islamic law has left a considerable area of private life and a broader area of public 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 regulations in line with these norms (Aydn 2005, 78). Thus, especially in the public, administrative 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 TurcoIslamic states for centuries established the urfi law connected to the Sharia. The Ottoman 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, unfortunately 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 religious 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 interfering 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 essential 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 codification 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 methodology. 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 between 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 forces. 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 between the Kemalist circles and practicing Muslim grassroots.
The next part tries to propound that before the Kemalist revolution, the secularization process had already began and it did not cause any serious problem between 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 properlyfunctioning 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 territory was still attributed to a failure to apply and use the traditional institutions, techniques 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 revive 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 publication 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 technology 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 corrupt 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 mentionedabove, 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 alIslam 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 order 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 reforms 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 society 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 political 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, Abdlmecid, 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 movement 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 importance 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 established, circumventing traditional Islamic law and creating new secular commercial 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 between the ulama and bureaucrats but between those who wanted to reform the country 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 writings 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 secular 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 transplantation 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. Initially, 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 division 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 needed 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 Western in form, it could be said to be a joint venture between conservatists and reformers, exemplifying the negotiation and compromise between these groups (Ostrorog
1927, 79). Thus, for the secularization process opposite poles reached an agreement. 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

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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 persons 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 judges 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 constitution. 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 institutions 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 Westernization 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 system 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 maintained (Bozkurt 1998, 290).
Despite secularization in several fields of law after the Tanzimat, the laws of marriage, 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 foundations (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 minorities had different and autonomous laws in accordance with the millet system (Ostrorog 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-

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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 transplantation of their modern institutions. However, such a transplantative reform process
also brought about importing the Western secular codes to the Ottoman legal system. 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 Westernization 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 observed 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 political 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 agreement 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. However, 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 modernization 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 byproduct 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 establishment also penetrated their ultra-secularist authority to the individual level and private 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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