The Tanzimat paradox: Legal dualism and the dilemma of westernization in Ottoman modernization

Abstract

This article reexamines the conventional equation of modernization with Westernization that has long shaped interpretations of Ottoman legal reform during the Tanzimat period (1839-1876). Drawing upon a comparative examination of key legal texts, including the Tanzimat Edict (1839), the Islahat Edict (1856), the Ottoman Commercial Code (1850), and the Majalla al-Ahkam al-Adliyya (1869-1876), the study evaluates their relationship to selected provisions of the modern Turkish Civil Code in order to identify both continuities and transformations in legal thought. The Majalla's Articles 8, 20, 22, 30, 36, and 39 embody principles that closely resemble contemporary legal doctrines, including the presumption of innocence, tort liability, necessity, public interest, custom as a source of law, and the adaptability of legal rulings to changing circumstances. These examples demonstrate that Islamic legal principles could be codified in a systematic and modern form without requiring the abandonment of their substantive foundations. The article contends that the abolition of the Majalla in 1926 was driven primarily by the ideological orientation of radical Westernization, although administrative and institutional considerations also contributed to the decision. More broadly, the Ottoman experience indicates that modernization and legal development need not necessarily entail comprehensive Westernization. The Tanzimat reforms, therefore, offer an important historical perspective for contemporary debates on legal modernization in non-Western societies.