Ottoman Seculalr and Civil Law

Ottoman and Secular Civil Law
Author(s): Dora Glidewell Nadolski

Source: International Journal of Middle East Studies, Vol. 8, No. 4 (Oct., 1977), pp. 517-543
Published by: Cambridge University Press
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Int. J. Middle
East Stud. 8 (1977), 517-543
Printed
in U.S.A.
517
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secularization was superseded by processes of supplementation of the Shari'a and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.
The system of transliteration is as follows:
I. Both Arabic and Turkish are used. Arabic is used when reference is made to those elements 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 propernames.
2. Ottomanwords are spelled accordingto Mustafa Nihat Oz6n, Osmanlica-TiirkceSzliik
(Istanbul, I955).
3. The Encyclopedia of Islam is used for proper Arabic nouns, i.e., Khatti-HiimSyun of
Giilkhane.
AUTHOR'S NOTE:
5I8
Dora GlidezwellNadolski
The process of secularization of civil law in Turkey was in part climaxed in

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
accomplisheduntil 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 aforeI926
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 Traditional Customary Law," International Social Science Bulletin, 9 (1957), 51-53
519
Development of civil law and courts in the Ottoman Empire and Turkey
The OttomanEmpire
Caliphate
Seyhil-Islam
Shari'aor $eria
Kaniun
Kanun-names
--
ii
Religious Courts
Secular
Courts
Turkey after adoptionof the Swiss Civil Code

Organizationalarrangement
Swiss Civil Code
MedeniKaniinu
Ministryof Justice
Courtof Cassation
Lower Courts
-I
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 complex, diversified nature of a vast empire and with the problem of formulating law
3 This supplementationin the Ottoman Empire continued with the reign of Mehmed II
(1451-1481) and Suleyman I (1520-I566) and thereafter.
520
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 voluminous, 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 embodied 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-namewhich 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
This accomplishment, with the support of Sultan Siileyman, was
(I545-I574).
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 administration 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 Government of the Ottoman Empire, p. I59) contradicts the idea that Siileyman's laws were in the
form of a kanfin-name.
521
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
and Mahmud II
Significant reform measures under Selim III (1789-I807)
(I808-I839) continued in the Ottoman Empire.10Of legal importance, however,
were those reforms of Mahmud in I834. He decentralized the office of the Sadriazam (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 curtailed 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.13What 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 $eyhiilIslam'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.
522
charter was not legitimized by the $eyhiil-Islam. This official sanction was considered necessary since the reforms definitely involved the Shari'a. The nonobservance of this procedure would undoubtedly serve to create continued friction
between the two pronounced subjects of the entire charter, the political and religious. 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 instituted for lawsuits between Muslims and non-Muslims, with codification of laws
relating to them.15The 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 inter14 Ibid.,pp. I46-I47.
15 "Tanzinmt-i Khairiye," EI1, VI, 656-658. Also, $erif Mardin, The Genesis of Young
OttonmanThought (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.
523
national, commercial relations, an area that had traditionally been outside the
jurisdiction of the Shari'a. The establishment of these commercial courts16served
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 religiously 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.20The 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 Appendix 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 commercialcourts were labeled after the CommercialCode of I850 when they came
under the jurisdictionof the Ministry of Commerceand 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 Developmentof Secularismin Turkey,p. I65.
21 Ibid., p. i68.
22
Mecelle means a digest of legal rules and principles; the complete title being Majallat-i
AhkamliAdliyc (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
524 Dora Glidewell Nadolski

procedure, and contracts.23It was not definitely a civil code, because it did not contain that portion of the Shari'a which treats procedures of family, marriage, and
inheritance.24It 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 unchangeable 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
WThileboth 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 incomplete 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 missions 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
525
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 authority 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
terminableat 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 belligerency; (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 Embassy.31
Turkey continued to be faced with the Western Powers questioning its jurisdicand way of life. Do not borrow from Europeancivilization institutions that do not agree with
your institutions,because Western institutions are based on principles that are different from
those formingthe bases of your empire."On the other hand, Stratford Canningof Great Britain
believed that civilization and reform could come to the East only through the spread of Christianity. Berkes, The Development of Secularism in Turkey, p. I49. Then the contradictory,
internal forces as already describedrepresentedthose who wanted secularizationas 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, "Capitulationsof the Ottoman Empire,"American Journal of Interna-
tional Law, 17 (1923),

30
224.
Note that Austria, Germany,and Russia had relinquishedtheir rights and agreed to abide
by the abrogationas set forth by the OttomanEmpire.
31 Thayer, "Capitulationsof the OttomanEmpire,"pp. 229-230.
526
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 attempting to centralize itself. The mixed court system litigating in cases involving nonMuslim subjects required the presence of a functionary or dragoman from the
subjects' consulate. This arrange-mentwas a continual source of confusion for the
Turkish judge whose decisions were compromised and lacking in a basis of jurisprudence.32lWhy should a systeml which was linked with the government of the
Middle Ages continue to harass Turkey?33Under 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 abrogationwas 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.
527
cerned.35These stipulations according to Europeans needed clarification. Therefore 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 abrogation 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 Caliphatein 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.37Atatiirk, 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 compared 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 InternationalLaw, 28
(January, 1924), I14.
36 P. M. Brown, "The Lausanne Conference,"American Journal of InternationalLaw, 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 abandonmentof the dual court system, religious and secular, final abrogation 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 Assembly 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, revolutionary 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 justifying 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 adoptionof the Swiss Civil Code was not such a revolutionarychange,because
it is the last stage in an evolutionwhich had been going on beginningwith the Kanunsystem....
Beneath the empire'sostensibly 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 dualismof the earlier regimes. ... Of course there were problemsand 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 sovereignty 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 procedurallaw: ( I) the findings of the International 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.
529
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, approximately 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, divorce, and succession and inheritance) and land laws.
With respect tQfamily 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.43The 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 Cassation44found it necessary to change the age
from twenty to seventeen for men, and from eighteen to fifteen for women.45 Another 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 dispensation) 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 CustomaryLaw," 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 GlidezwellNadolski

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,50whereas 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 incompatibility. In cases where one party or both parties want a divorce but cannot
requiredfor the validity of the marriage contract: (I) it must not representlimited duration;
(2) it must be publishedand made known: (3) there must be no impedimentof 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.
531
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 distributed 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 Cassation, 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
Receptionof the Swiss Civil Code in Turkey,"pp. 63-65.
52 Khadduriand
Liebesney,Lacwin 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 Khadduriand 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 sixtyseven 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 Assembly must work together in the matter of changing or adopting law. For example, 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 example, 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 preparatory 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.58Reluctance on the part of
judges in the matter of interpretation might in part rest with the foregoing statement 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 pertaining to a specific case, interpretation might be facilitated. The problem is further
Lipstein, "Receptionof 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 KantnuitIctihatlar, October I9, 1932,
p. I60. See also Delmar Karlen and Ilhan Arsel, Civil Litigation in Turkey (Ankara, I957),
P. 37.
58 Karlen and Arsel, "Codeof Civil Procedure,"pp. 50-52.
59 Ibid., p. 52.
533
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
don't look upon themselves
tion of the bench and bar,
lawyers to tell them how
lawyers do is lost because
the codes [sic].60
write reasoned opinions in support of their decisions. The judges

as writing for the information of the public or even for the informabut as writing for the trial judge below and the parties and their
a particular case is to be resolved. The thinking that judges and
it isn't written. Hence, each new case involves starting fresh from
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 transferring 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, however, 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.
534
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 communication 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.67Since there is no separate code, there is no case law in
this area.68It 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 defendantis an alien who is neither domicilednor 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;
"Codeof 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 officiallypublishedregular reports. Chambersof
the Court of Cassation have their own files of unpublishedprecedents.An attempt has been
made by Berki and Erguney to bring Court of Cassation's decisions to the field of private
internationallaw, called Kanun Ihtilaflari; see Ansay, American-Turkish Private InternationalLaw, p. 2I.
69 Ibid., p. 62-63.
535
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.71The 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 accordingto 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 interpretation.
CONCLUSION
Codificationof 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 applicationof 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, complete 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 interpretationwould 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.
537
to those occupying the seat of judgment in the lower courts.75As 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 marriageableage 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 villagers 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 revolutionary 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 technical 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 discussed at the symposium investigating the Swiss Civil Code which was held September 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 numberof 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 Kanunuin 1967 records
only those changes made by the Court of Cassationas already discussed. Karlen and Arsel in
their book, Civil Litigation in Turkey are concernedwith the interpretationof civil law primarily by judges and lawyers. These authors say that strict reliance upon codes has inhibited
interpretationand that the case load of the Court of Cassation keeps judges from the opportunity of writing their reasoning in detail. The responsibilityof the judges and the reliance
placedupon them is considerablewhen comparedwith 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
I
I850 Firman in favor of non-Muslims
24 May
I28
I850 Promulgation of a Code of Commerce
July
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
I855 Abolition of Kharadj for the rayas and decision to enroll them in the army
7 May
II8 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
1858 Promulgation of a Penal Code
9 Aug.
April I860 Appendix to the Code of Commerce, regulating the Tribunals of Commerce,
which are amalgamated with the mixed tribunals
.1I
I860 Regulations regarding the Armenian Gregorian Community
24 May
I86I The two High Councils joined into one
i May
I86I New Regulations for Lebanon
II4 Nov.
I86I Code of commercial procedure
I862 Organic regulation of the Oecumenical Patriarchate
I863 Concession of the Imperial Ottoman Bank
4 Feb.
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.
A
..9I
1.
539
I Sept.
19 Jan.
1868 Law on the Ottoman nationality

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.
Law on the secularization of the Ewkaf (never put into execution)
1871
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 objected 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 transformationfar 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
mentalityand needs of our Revolution.2

The Preamble to the Swiss Civil Code in objection to its adoption:
There is no fundamentaldifferencein the needs of nations belonging to the modernfamily of
civilization. Perpetual social and economic contacts have . . . been transforminga large civilized body of mankindinto a family ... We must never forget that the Turkish nation has de1 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 reservation... If there are some points of contemporary civilization that do not seem capable of conforming 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 determination 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
recognizedas attributedto civilized nations,has ... by acceptingthis ... law, undertakenall the
the
responsibilitiesrequiredby this code. On the day that this document ... is promulgated,the
Turkish nation will be saved from false beliefs and traditions, and the fluctuationssince
Tanzimat; it will close the doors of an old civilization,and will have entered into a contemporary civilizationof... 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. CorporateBodies
II. Family Law (49-204)
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
Husbandand Wife (marriage)

Divorce-(article 134,domesticdisturbances)
Generaleffects of marriage
Matrimonialpropertylaw
Parent and Child (legitimacy)
Illegitimacy
The Family
Guardianship-organization
Administrationof guardianship
How Guardianshipends
III. Law of Inheritance (207-305)
A.
B.
C.
D.
Statutoryheirs
Devolutionof the Estate-Opening of the Succession
Effects of Devolution
Partition
IV. Law of Property (309-512)
A. Ownership-general rules
B. Ownershipof 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.
D.
E.
F.
G.
H.
541
Ownership of moveable property

Servitudes and rent-Charges
Mortgages and other securities on land
Law of pledge
Possession
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 deportedonly by
order of their own Ambassadors.Disputes involving foreigners were settled by the consular
court of the defendant,accordingto the law of his own land. Non-Muslim Turkish subjects in
foreign employ could also be given this privileged status, by a diplomaconferredby 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 communities (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 bibliographyis 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 publishedfrom I913-I928 by E. J. Brill Ltd., London.Currentlythe new Encyclopaedia 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 University Press, 1966.
Balta, Tahsin Bekir, Organization tand Functions of the Central Government of Turkey.
Ankara: Is Matbaacilik ve Ticaret, I965.
Berkes, Niyazi, The Developmenlt 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.
543
Siisa, Nasim, The Historical Interpretation of the Origin of the Capitulations in the Ottoman
Empire.Baltimore: John HopkinsUniversity Press, 1930.

Williams, Ivy, The Swiss Civil Code. Oxford: 1925.
Ziadeh, Farhat, trans., S. MahmassaniFalsafat Al-Tashri Fi Al-Islam. Leiden: E. J. Brill,

1961.
JournalArticles
Brinton, Jasper, "Turkey'sNew System of Laws and Courts,"CurrentHistory, 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, "Receptionof Foreign Law in Turkey," International Social Science
Bulletin, 9 (1957).
Lybyer, Albert, "TurkeyWalks Abreast with the ModernWorld," CurrentHistory, 24 (July,

1926).
Thayer, Lucius, "Capitulationsof 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 TraditionalCustomaryLaw," InternationalSocial
Science Bulletin, 9 (I957).
Velidedeoglu,H. V., "The Receptionof the Swiss Civil Code in Turkey,"InternationalSocial

Science Bulletin, 9 (1957).

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Ottoman and Secular Civil Law

Author(s): Dora Glidewell Nadolski

East Stud. 8 (1977), 517-543

Dora Glidewell Nadolski

The process of secularization of civil law in Turkey was in part climaxed in

Ottoman and Secular Civil Law

Turkey after adoptionof the Swiss Civil Code

mentioned, in addition to the capitulatory system and the Treaty of Lausanne,

Sovereigns of the Ottoman Empire3 found it necessary to supplement the Shari'a

Dora Glidewell Nadolski

Ottoman and Secular Civil Law

With the inauguration of the Tanzimat Charter (Appendix A), differences

Dora Glidewell Nadolski

Ottoman and Secular Civil Law

is "Medjelle,"EI1, IV, 449.

524 Dora Glidewell Nadolski

Ottoman and Secular Civil Law

that it in fact did not exist after

After this date what had been

internal forces as already describedrepresentedthose who wanted secularizationas opposed to

29 Lucius Thayer, "Capitulationsof the Ottoman Empire,"American Journal of Interna-

tional Law, 17 (1923),

Dora Glidewell Nadolski

Ottoman and Secular Civil Law

528 Dora Glidewell Nadolski

Further attempts at justification centered on equating the necessity of the adoption

Ottoman and Secular Civil Law

At the meeting of the International Association of Legal Sciences in I955 in

tVlken,"The New Civil Code and the Traditional CustomaryLaw," p. 52.

K. M. Findikoglu, "Causes of the Reception," International Social Science Bulletin, 9

530 Dora GlidezwellNadolski

accepting these marriages and

Ottoman and Secular Civil Law

establish it on the grounds of adultry, attempt on life, crime, desertion, or insanity,

532 Dora Glidewell Nadolski

58 Karlen and Arsel, "Codeof Civil Procedure,"pp. 50-52.

Ottoman and Secular Civil Law

write reasoned opinions in support of their decisions. The judges

Dora Glidewell Nadolski

Knowledge of private international law is important for foreigners in Turkey

This principle of the exclusive jurisdiction of Turkish courts is based on the

Ottoman and Secular Civil Law

to defend the suit.

Turkey accordingto article 540 of the Code of Civil Procedure.72

536 Dora Glidewell Nadolski

Ottoman and Secular Civil Law

538 Dora Glidewell Nadolski

Ottoman and Secular Civil Law

1868 Law on the Ottoman nationality

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

mentalityand needs of our Revolution.2

The concluding statements of the Preamble by Mahmut Esat represent the

Husbandand Wife (marriage)

III. Law of Inheritance (207-305)

IV. Law of Property (309-512)

Williams, The Swiss Civil Code.

Ottoman and Secular Civil Law

Ownership of moveable property

Dora Glidewzell Nadolski

Ottoman and Secular Civil Law

Empire.Baltimore: John HopkinsUniversity Press, 1930.

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

Lybyer, Albert, "TurkeyWalks Abreast with the ModernWorld," CurrentHistory, 24 (July,

Thayer, Lucius, "Capitulationsof the Ottoman Empire," American Journal of International