THE OTTOMAN ORIGIN OF THE CONSTITUTIONS OF THE REPUBLIC OF TÜRKİYE: AN OVERVIEW OF CONSTITUTIONAL MOVEMENTS FROM FATIH’S ORGANIZATION LAW (KANÛNNAME-I ÂL-I OSMAN) TO GÜLHANE HATT-I HÜMÂYÛN

Abstract

In the Ottoman Empire, there have been important regulations in public law since Fatih. The problem of how the state can be built on solid foundations has revealed the necessity of some legal regulations. Fatih’s Organization Law/Kanûnnâme-i Âl-i Osman is the first codification that brings together the regulations within this framework. However, it is seen that there is no complete consensus on whether the aforementioned law is a constitution or not. On the other hand, the limited aspect of the studies on the constitutional developments and constitutions of the Ottoman Period is also evident in this issue. A comparative analysis of the steps, which have been milestones in constitutional developments in the historical process, is an even less common method of study. It is thought that one of the most important reasons for this is the difficulties that such studies have due to their interdisciplinary nature. In this context, the belief that it will make a unique contribution to the field to deal with very important developments, which will be discussed within the framework of the Ottoman Constitutional History, firstly within themselves and then by comparison, has been the starting point of this study.

Although there are determinations that Fatih’s Organization Law is a constitution, it is a more common and appropriate approach to start the first constitution with the 1876 Kanûn-ı Esâsî. However, it is seen that the owners of this widespread approach in the world of science do not discuss why Fatih’s Organization Law cannot be considered as a constitution. It has been concluded that when Fatih’s Organization Law is considered in terms of form and material/content, it cannot be qualified as a constitution. On the other hand, it is clear that Gülhane Hatt-ı Hümâyûn, which contains much more constitutional features than Fatih’s Organization Law, is also a constitutional development, but cannot be qualified as a constitution. However, Gülhane Hatt-ı Hümâyûn included many fundamental rights and freedoms included in modern constitutions, as well as established mechanisms that ensure these. The study tries to shed light on the important milestones of the Ottoman constitutional development process, which inherited the Republic of Türkiye in the historical evolution process and affected today’s constitutions to a certain extent, by considering first-hand sources.