While the Meşihat in 1916 was busy compiling the family law, the CUP government also established three commissions called İhzar-ı Kavanin to draft a civil, a commercial, and a family code.579 The committee who was in charge of preparing a new family law studied the Roman, British, German, American, Austrian and Hungarian family laws, along with the Islamic ones.580 Besides, the Commission
577 Esra Yakut, 2005, Şeyhülislamlık Yenileşme Döneminde Devlet ve Din, (İstanbul: Kitap Yayınevi, 2005), 53; Tarık Zafer Tunaya, İslamcılık Cereyanı, 32.
578 Fanny Davis, The Ottoman Lady a Social History from 1718 to 1918, 124.
579 Gülnihal Bozkurt, Batı Hukukunun Türkiye’de Benimsenmesi, 167.
580 Ibid., 89.
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of the Family Law, Hukuk-u Aile Komisyonu, also formed a subcommission to study the details of the family law of the non-Muslim subjects of the Ottoman Empire.581
Among the three commissions established by the CUP, only the Commission of the Family Law was able to complete its mission.582 The Ottoman Law of Family Rights of 1917 was ratified by the sultan Reşat on 8 Muharrem 1336/October 25, 1917, and became operative. The content of the OLFR583 was not satisfying to those who were against its promulgation.584 In order to prevent some of the deputies’
opposition to the OLFR, the CUP government declared that it was a temporary law without any discussion in the chamber.585
The Ottoman Law of Family Rights of 1917 was an attempt to standardize a vast body of somewhat disparate interpretation and opinion on family law matters into a code, which established universally applicable rules of family life in the late Ottoman Empire for all Ottoman subjects.586 As mentioned in the second chapter, achieving legal unity in the Ottoman Empire was the purpose of the CUP rulers. The OLFR was to apply as a national code on a territorial basis as part of legal modernity.
581 Ziyaeddin Fahri Fındıkoğlu, Essai sur La Transformation du Code Familial en Turquie, 42.
582 Gottard Jaeschke, Yeni Türkiye’de İslamlık, (Ankara: Bilgi Yayınevi, 1972), 23.
583 For the OLFR’s articles see: Düstur, 2. Tertip, 9. Cilt, İstanbul Evkaf Matbaası, 1928, 762. Also, the text of the Ottoman Law of Family Rights of 1917 was published in the Takvim-i Vakayi News-paper in 14 Muharrem 1336 (Muslim Calendar, Hijri)/31 Teşrin-i Evvel 1333 (Julian Calender)/30 October 1917. The text was also transliterated; see: Orhan Çeker, Aile Hukuku Kararnamesi. İstanbul:
Mehir Vakfı Yayınları, 1999.
584 Mehmet Akif Aydın, İslam-Osmanlı Aile Hukuku, 155, 163.
585 According to Şükrü Hanioğlu the CUP managed to bypass legislature by means of the cabinet. The cabinet issued temporary laws confirmed by imperial decrees at times when parliament was not in session. Over time, temporary laws overtook the legislation in the parliament as the principal law making mechanism of the state. Many important decisions such as the Ottoman Law of Family Rights of 1917 were confirmed as temporary laws, without any discussion in the chamber. See: Şükrü Hanioğlu, A Brief History of the Ottoman Empire, 163.
586 Judith E. Tucker, “Revisiting Reform,” 4-10.
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For this purpose, articles that regulated the marriage and divorce of the non-Muslim subjects were also included in the OLFR.587
The 156th article of the OLFR, for instance, extended the Sharia court’s authority to control the marriage, dowry, and divorce claims of non-Muslims. In fact, this article automatically annulled the rights of the non-Muslim community leaders.588 Hence, with this law, it became easier to place all religious courts in the Ottoman Empire under the authority of the Ministry of Justice.589
Both Muslim and non-Muslim subjects of the Ottoman Empire were Ottoman citizens ever since the promulgation of the nationality law, Taabiyet-i Osmaniye Kanunnamesi, of 1869.590 The Ottoman state could not overlook how the non-Muslim population managed its family affairs, since non-Muslim and non-non-Muslim subjects of the Ottoman Empire were made equal before the law. In the bill of complaint, the Esbab-ı Mucibe Layihası, the reasons for the promulgation of the OLFR, and the handicaps of having separate family laws for each ethnic and religious community of the empire, was mentioned.591
According to the Esbab-ı Mucibe Layıhası, because the non-Muslim populations of the empire were employing their separate laws, they could not be controlled by the state. This situation jeopardized the well-being of non-Muslim citizens, for they might be treated unjustly by their religious leaders, who were not
587 Robert H. Eisenman, Islamic Law in Palestine and Israel, 36.
588 Gülnihal Bozkurt, Batı Hukukunun Türkiye’de Benimsenmesi 173.
589 June Starr, Law as a Metaphor, 6-10.
590 Füsun Üstel, “II. Meşrutiyet ve Vatandaşın ‘İcadı,” in: Modern Türkiye’de Siyasi Düşünce:
Tanzimat ve Meşrutiyet’in Birikimi, ed.Tanıl Bora and Murat Gültekingil (İstanbul: İletişim Yayınları, 2001), 166; Sami Zubaida, Law and Power in the Islamic World, 141.
591 Gülnihal Bozkurt, 173.
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competent enough to manage family law affairs.592 Therefore, a unique family law that could be applied to all subjects of the Ottoman Empire would benefit the society as a whole.593
The OLFR was promulgated in the middle of the war. Robert Eisenman argues that the timing of the CUP rulers had a lot to with the wave of Turkish nationalism.594 However, in the explanation of the body of regulations of the OLFR, which was published to illustrate controversial issues of the application of law, it was mentioned that the word “nationality” was replaced by the word “religion” in the body of regulations. Religion was an important aspect of the marriage issue, and the word “nationality” used to be applied to reveal the religion of the spouses. However, the use of the word “nationality” meant a lot more than was intended. It referred to ethnicity.595 The codification of family law under severe war conditions was intended to realize the CUP rulers’ desire to unify their subjects. Obviously, the state’s ongoing modernization project and the plight of women were also among the motivations for the new family law. However, the CUP rulers’ abstention from using the word “nationality” more likely related to the CUP’s effort to unify all Ottoman subjects.
On October 23, 1917, the 200th article of the penal code was changed to include those who solemnized a marriage ceremony without a permission letter or
592 Orhan Çeker, Aile Hukuku Kararnamesi, 67–69.
593 For the transliteration of the full text of the Layiha: Sabri Şakir Ansay, Medeni Kanunumuzun 25.
Yıldönümü Münasebetiyle Eski Aile Hukukuza Bir Nazar Hukuk İnkılâbımızı Aydınlatan Tarihi ve Teşrii Vesikalar, 18.
594 Robert H. Eisenman, Islamic Law in Palestine and Israel, 36.
595 “..Milliyet kelimesi bu lahiya ile alakası olmayan kavmiyet fıkralarına dalalet edilip hâlbuki asıl maksadı nikâh meselelerinde tesiri olan dinin temininin bilinmesinden ibaret olduğundan milliyet kelimesi din kelimesi ile değiştirilmiştir..”, İ.DUİT 94 9, 4 December 1917.
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married a woman who had already been married to another person.596 During the First World War, many soldiers died or went missing. The wives of these soldiers were sometimes forced by their male relatives to marry again, even if it was not certain that their husbands were dead. This situation affected the soldiers fighting for the Ottoman Empire. The main consideration of the CUP rulers was the control and well-being of the population and of the soldiers during times of war. Hence this measure against this unpleasant situation must have been taken into consideration along with the bureaucratic regulations.
For the CUP government, a lack of unified law in the Ottoman Empire was a serious issue. As can be observed from the documents, bureaucratic measures with punishments, even if they were not applied, were taken. For instance, in a document dated October 31, 1918, the governors of Bitlis and Erzurum inquired with the Ministry of the Interior about the situation of non-Muslim people who were married without getting warrant from the Sharia court. In response to the inquires, the Ministry of the Interior replied that the religious leaders and the headmen who enacted such marriages without getting a warrant from the Sharia court would be acting against the law and must be persecuted.597
Another correspondence sent from the Sicill-i Nüfus İdare-i Umumiyesi to the Ministry of Justice declared that according to the law of Sicilli Nüfus, marriage and
596 BOA, MV 248 39, 1336 M 7, 23 October 1917; Kanun-i Ceza’nın 200. maddesinin 19 Rebiülahir 1332 tarihli zeyl-i sanisine muaddel kararname; see: Düstur 2. Tertip, 9. Cilt, İstanbul, Evkaf Matbaası, 1928, 782.
597 “..5 kanun-i sani 1326 tarih ve 523 nolu tahriratu behiyyeleri cevabıdır. İzinname istihsâli etmeksizin nikâh akd edenler hakkında umumiyetle kanuni takibat icrası hususi karar gereğinden bulunduğu nüfus müdüriyetinin ifadesiyle beyan olunmuştur.”; “..9 ağustos 1326 22 ağustos 1910 15 şaban 1328 tarih 680 nolu tahriratı behiyyeleri cevabıdır. İzinname almaksızın akd icra olunan milel gayri müslimenin münekehat ve tevellüdat vukuatı ruhani reisleri ile muhtarlara usulünce ihbar ettirilerek yine onlar tarafından vukuat ilmühaberlerinin imla ve itası suduru olacağı sicilli nüfus idaresi müdüriyetinin ifadesi ile beyan olunur. Ol babda.” BOA, DH SN THR 17 95, 31 October 1918.
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divorce documents and the certificate of proof prepared by the non-Muslim religious leaders and imams should be sent to the Census Bureau.598 The registration of marriages and divorces with the Census Bureau had become even more important after the promulgation of the OLFR. The Census Bureau asked the tahrirat kalemi whether the marriages of the Armenian soldiers in the cities of Van, Erzurum, Sivas and Bitlis to local Armenian girls should be registered to the sicilli nüfus. The issue was discussed through correspondence among the Census Bureau and the Ministry of Justice. In the end an official letter was sent to Edirne province, saying that it was appropriate to register the marriage of Armenian soldiers to local Armenian girls.599