Secularization or Islamization? The 1917 Legal Reforms of the Committee of Union and Progress

In his diary entry dated April 29, 1915, Sheikh ul-Islam Ürgüplü Hayri Efendi noted that he had proposed to Talat Bey a plan to transfer the Sharia courts to the Ministry of Justice. He described the anticipated outcome of this reform in striking terms: “On the surface, judicial authority would pass to the Ministry of Justice; in reality, the Ministry of Justice would become the Office of the Sheikh ul-Islam.”[1] Two years later, in 1917, this reform was indeed implemented. Today, however, the same measure is generally interpreted in precisely the opposite way—as a step toward secularization. So, which interpretation is correct?

At the heart of this interpretation lies a significant conceptual confusion:

the assumption that the traditional institutional order of the Ottoman state constituted the necessary political/institutional form of Islam itself.

Yet many of the structures that characterized the Ottoman state—from its land regime and centralized bureaucracy to its military-administrative hierarchy and the position of religious institutions within the state—were not inherited unchanged from the earliest periods of Islam. Rather, they were the historically transformed products of Sasanian, Byzantine, and broader Persianate imperial traditions as these were incorporated into the political experience of the Islamic world over time.

The alteration of an Ottoman institution therefore does not in itself signify a departure from Islam. To think otherwise is to equate a historical institution with Islam itself and to read its elimination as the elimination of the Islamic order.

To understand the matter properly, it is necessary to go back a little. Ottoman administrative modernization, which advanced at full tilt from the reign of Selim III onward, can also be described as a process of nation-state formation. In Europe, states had been moving toward a new institutional model, the nation-state, which grounded the legitimacy of political sovereignty in a nation composed of individuals increasingly regarded as equal before the law. Contrary to common assumption, the “nation” here did not denote ethnic affinity or racial homogeneity; it meant people of different origins and faiths united around common law, equal citizenship, and shared political sovereignty. The state model toward which Ottoman modernization was heading was essentially this: a modern political order that progressively reduced differences of religious and social status and sought to define the entire subject population within a common bond of law and citizenship.

Within the classical social and administrative order of the Ottoman Empire, individuals’ rights and obligations varied according to their religion, social standing, and sometimes their place of residence. The pursuit of equality initiated by the Tanzimat and Islahat Edicts entered a new phase with the Ottoman Nationality Law of 1869 (Tabiiyet-i Osmaniyye Kanunu). These measures shared a common objective: to narrow the legal distinctions among different categories of Ottoman subjects and establish a common framework of Ottoman citizenship that transcended religious and cultural differences. This was the essence of Ottomanism: bringing the Empire’s diverse religious and ethnic communities together, as far as possible, under a shared regime of equal citizenship.

This approach also brought about the codification of law. The penal regulations of 1840 and 1851, the Penal Code of 1858, and the Commercial Code of 1850 established a common legal framework intended to apply to all Ottoman subjects. Yet the relationship between this new legal order and Islamic law was far from uniform. The Commercial Code introduced provisions, such as those concerning interest, that were at odds with classical Islamic jurisprudence. The Penal Code, meanwhile, did not codify the prescribed Islamic punishments for certain hudud offences, replacing amputation for theft with imprisonment or hard labour, while leaving matters such as qisas (retaliation) and diya (blood money) under Islamic law. The abolition in 1844 of the Islamic death penalty for apostasy followed a similar course. The Mecelle, by contrast, remained firmly grounded in Hanafi jurisprudence despite employing modern techniques of codification. The resulting Tanzimat legal order was neither entirely secular nor entirely Islamic. It was a hybrid system in which different sources of law coexisted. While the Nizamiye courts administered the newly codified law, which was partly secular in orientation, family law and certain matters of personal status remained under the jurisdiction of the Sharia courts for Muslims and the respective religious courts for non-Muslims.

This hybrid legal order remained largely intact under Abdülhamid II. The Nizamiye courts continued to operate, applying the commercial and criminal legislation borrowed from European legal systems. The Committee of Union and Progress (CUP) did not fundamentally alter this legal framework in a secularizing direction after 1908. In an article published on 1 March 1909, Hüseyin Cahid Bey explicitly stated that the sharia-related practices in force under Abdülhamid II remained unchanged. He also presented the Committee of Union and Progress as a political movement firmly committed to the sharia.[2]

The First World War presented the Committee of Union and Progress (CUP) with a major test, but also provided an important opportunity to put its own vision of the state into practice. The year 1917 witnessed two major legal reforms. The sharia courts were removed from the jurisdiction of the Meşihat (the office of the Sheikh ul-Islam) and placed under the Ministry of Justice, marking a significant step toward integrating the judiciary into the central state apparatus. In the same year, the Family Law Decree (Hukuk-ı Âile Kararnâmesi) introduced the first comprehensive codification of family law in the Ottoman Empire.

Should the transfer of the sharia courts from the jurisdiction of the Meşihat to the Ministry of Justice be understood, as some of the literature suggests, as a move toward secularization and the removal of religious authority from the public sphere? Or did it, in fact, give the Ministry of Justice—which had previously dealt primarily with the nizami legislation introduced during the Tanzimat—a more distinctly Islamic character by incorporating the administration of sharia law into its own institutional framework?

The first of these interpretations, which has by now become almost the standard account, is the product of a one-sided historiography that views the process largely through the lens of Ziya Gökalp while relegating other actors to the background. One of the principal sources underpinning this narrative is Mehmet Emin Erişirgil’s Bir Fikir Adamının Romanı, a dramatized work that interweaves memoir and biography.[3]

Drawing on Erişirgil’s account, Niyazi Berkes posited a direct causal link between the memorandum drafted by Gökalp and the reforms of 1916–1917. He then went a step further, interpreting these developments as part of a process of the “separation of religion and state” and secularization—an interpretation that Erişirgil’s account itself does not explicitly articulate.[4]

To test this (limited) interpretation, the actual extent of Ziya Gökalp’s influence at the time must first be established. Under the CUP’s 1913 regulations, political and administrative decision-making authority was vested in the General Assembly (Meclis-i Umumî), while the responsibilities of the Central Committee (Merkez-i Umumî) were largely confined to administrative matters, including communication with the provincial organization, conveying decisions to the relevant authorities, and conducting propaganda activities.

Ziya Gökalp was a member of the Central Committee, and it was in that capacity, rather than as an elected member, that he attended at least some of the General Assembly’s meetings. Until early 1917, however, these meetings were presided over by Grand Vizier Said Halim Pasha, an Islamist ideologue; he was subsequently succeeded in this role by Grand Vizier Talat Pasha. The Sheikh ul-Islam, Ürgüplü Hayri Efendi, was also among the elected members of the General Assembly.

Gökalp, however, held no position in any of the political or technical bodies responsible for transferring the sharia courts to the Ministry of Justice or for preparing and enacting the Family Law Decree. He was a member of neither the government nor the Chamber of Deputies, the Justice Commission, or the commission responsible for drafting the Family Law Decree.

The transfer of the sharia courts to the Ministry of Justice was not an idea unique to Gökalp. In his diary entry of April 29, 1915, Hayri Efendi recounts that he had submitted a detailed proposal to Talat Pasha calling for the merger of the sharia and Nizamiye courts, the consolidation of the Meşihat and the Ministry of Justice under a single administrative structure, and the transfer of the Tedkikat-ı Şer‘iyye Meclisi (Council for the Examination of Sharia Matters), then based at the Bab-ı Fetva, to the Court of Cassation as one of its divisions.[5]

The idea of unifying the judiciary and reorganizing sharia adjudication within a centralized justice administration was therefore already under discussion, and had been taken up by different actors, before the 1916 congress texts written by or associated with Gökalp. Nevertheless, much of the literature appears to have overlooked this earlier and more diverse history of ideas, inferring a strong causal connection from the partial resemblance between the 1916 congress texts associated with Gökalp and the measures implemented in 1917. There is a resemblance; but resemblance alone does not necessarily indicate authorship or causation.

Another important question concerns how the CUP itself justified this reform. The transfer of the sharia courts to the Ministry of Justice, proposed in the declaration associated with Gökalp and subsequently incorporated into the party programme, was presented by the CUP not as a move toward secularization but as a step toward Islamization. The Kızıl Konak (the Red Mansion) documents leave little room for doubt on this point. The transfer was justified as a means of overcoming the dual legal system that had emerged under the Tanzimat, restoring the state to what was described as “a fully Islamic state,” and—as Hayri Efendi also emphasized in his diaries—transforming the Ministry of Justice into “an Islamic ministry.”[6]

This rhetoric must be considered alongside other CUP policies and initiatives: its efforts to reform the madrasas; its interventions concerning women’s veiling in Istanbul; its support for the resistance in Tripolitania through a rhetoric of religious mobilization; the proclamation of the Great Jihad (Cihad-ı Ekber); Niyazi Bey’s defense of polygamy at the very beginning of the constitutional period; and, finally, the Family Law Decree, which retained polygamy within the legal framework.[7] Taken together, these developments point to a broader Islamizing orientation in CUP policy rather than a collection of isolated measures.

The CUP justified the reform in explicitly Islamic terms Seyyid Haşim Bey, one of the principal technical architects of the reform in parliament and the rapporteur of the Justice Commission, was not a jurist known for secular or laicist leanings. He combined a religious education with legal training in Paris, wrote independent works on Islamic law, and advocated the reorganization of sharia adjudication within the centralized structure of the state.

On the other hand, the relationship between Ziya Gökalp’s legal thought and the 1917 Family Law Decree was not as direct as is often assumed. Gökalp argued that law in the sphere of kazâ (justice) should develop in accordance with custom and social needs, and that legislation in this field should be enacted by parliament. His approach was therefore markedly historicist and state-centred.

The Family Law Decree followed a different method. Rather than generating new rulings on the basis of custom, it sought solutions suited to the “needs of the age” within the broader tradition of Islamic jurisprudence. It did not confine itself to the dominant positions of the Hanafi school, but also drew on Maliki, Shafi‘i, and Hanbali opinions, as well as on early jurists such as Ibn Shubruma and Abu Bakr al-Asamm. The technique employed was therefore less one of producing new ijtihad—that is, deriving new legal rulings from the sources of Islamic law—than of takhayyur (selection among existing juristic opinions) and talfiq (combining elements from different legal opinions or schools) in order to construct a modern codification of family law.

The clearest evidence of this method lies in those provisions of the Decree that are often regarded as secular simply because they expanded women’s legal rights. Measures such as broadening the grounds for divorce and allowing conditions to be stipulated in the marriage contract were not new rights borrowed from the West. They were based on juristic opinions that had existed within Islamic law for centuries. The Decree selected such rulings largely from non-Hanafi schools and codified them into law. Even its seemingly “modernizing” provisions were therefore the product of choices made within the Islamic juristic tradition itself. At the same time, proposals advanced by scholars such as Mansurizade Said Bey that might have restricted or prohibited polygamy[8] were not adopted. Polygamy was instead retained and formally codified within the legal order.

The manner in which the Decree entered into force also sat uneasily with Gökalp’s view that legislative authority should rest with parliament. The Decree was not a law enacted by the Chamber of Deputies. It was promulgated by the government as a decree, with the expectation that it would subsequently be submitted to parliament for formal enactment.

The Family Law Decree therefore shared certain features with Gökalp’s programme, particularly its commitment to modern state-building and legal codification, but it cannot simply be regarded as the implementation of his project. Its normative foundations, legal method, and mode of enactment were significantly different. It is more accurate to understand the Decree as an independent Islamist legal reform: one that responded to contemporary needs by reorganizing the supra-madhhab resources of Islamic law and codifying them through the authority of the state.

Moreover, the commission that drafted the Family Law Decree was chaired by Seydişehirli Mahmud Esad Efendi, who, like Seyyid Haşim Bey, cannot plausibly be characterized as a jurist committed to a secular or laicist conception of law.

Taken together, these considerations make it difficult to read CUP rule after 1913 as a linear narrative of secularization. The transfer of the sharia courts to the Ministry of Justice, the Family Law Decree, and the madrasa reforms were not attempts to preserve traditional Ottoman institutions unchanged; but they were equally not secular reforms that pushed the religious sphere outside the order of state and law. On the contrary, they involved overcoming the dual structure that had formed since the Tanzimat and reorganizing Islamic norms within centralized, codified, and modern state institutions. There are therefore strong grounds for viewing the CUP’s later policies not as a return to the traditional Ottoman order, but as an attempt to construct a new form of modern statehood with Islam at its core.

The principal reason these developments have so often been viewed through a a mirror that inverts the image is the teleological assumption that the CUP constituted a necessary transitional stage between the Tanzimat and Kemalism. A sounder approach is to seek the intellectual traces of the Republic’s more radical secularizing programme in figures such as Abdullah Cevdet and Kılıçzade Hakkı, who were frequently in conflict with the CUP’s dominant political line.

The transfer of the sharia courts to the Ministry of Justice, the Family Law Decree, and the madrasa reforms, by contrast, were policies that took shape during Talat Pasha’s grand vizierate and sought to rebuild the instruments of the modern state with an Islamic content. The key question, then, is not how secular Talat Pasha and the CUP cadres were, but to what extent, why, and how their vision of state and society was grounded in Islam, and what sources and methods they used in the process. In answering it, teleological mind-reading must be avoided and the available sources must be assessed honestly and courageously.

 

 

[1] Ürgüplü Mustafa Hayri Efendi, Meşrutiyet, Büyük Harp ve Mütareke Günlükleri (1909–1922) [Diaries of the Constitutional Era, the Great War, and the Armistice, 1909–1922], ed. Ali Suat Ürgüplü (Istanbul: Türkiye İş Bankası Kültür Yayınları, 2015), 371–373.

 

[2] Hüseyin Cahid [Yalçın], “Şeriat İsteriz” [“We Want the Sharia”], Tanin, no. 210 (1 March 1909), 1.

[3] Mehmet Emin Erişirgil, Bir Fikir Adamının Romanı: Ziya Gökalp [The Novel of a Man of Ideas: Ziya Gökalp] (Ankara: Nobel Yayın Dağıtım, 2007), 129–142. The first edition of the work was published in 1951.

[4] Niyazi Berkes, Türkiye’de Çağdaşlaşma [The Development of Secularism in Turkey] (Istanbul: Yapı Kredi Yayınları, 2012), 457–460.

[5] Ürgüplü Mustafa Hayri Efendi, Meşrutiyet, Büyük Harp ve Mütareke Günlükleri (1909–1922) [Diaries of the Constitutional Era, the Great War, and the Armistice, 1909–1922], 371–373.

For another example of contemporary debate on this issue, see Mardinîzâde Ebû’l-Ulâ, “Şerîate Hizmet: Mecelle Cem‘iyeti” [“Service to the Sharia: The Mecelle Society”], Sırât-ı Müstakîm [The Straight Path] 3, no. 55 (23 September 1909): 39–41.

[6] Burak Aslanmirza, İttihat ve Terakki Cemiyeti’nin Kızıl Konak Evrakı: Toplantı Zabıtları, Genelgeler ve Siyasi Program (1916–1917) [The Red Mansion Papers of the Committee of Union and Progress: Meeting Minutes, Circulars, and Political Programme, 1916–1917] (Istanbul: Tarih Vakfı Yurt Yayınları, 2021), 166.

[7] Contrary to a widespread assumption, the CUP did not place the madrasas under the Ministry of Education. Rather, through its madrasa reforms, it established the Medresetü’l-Eimme ve’l-Hutebâ [Madrasa for Imams and Preachers] and reorganized several higher madrasas, thereby bringing madrasa education and qualifications into equivalence with schools administered by the Ministry of Education.

[8] Mansûrizâde Said, “Taaddüd-i Zevcât İslâmiyet’te Men‘ Olunabilir” [“Polygamy Can Be Prohibited in Islam”], İslâm Mecmuası [Islamic Journal] 1, no. 8 (1330/1914): 233–238.