Reflection Of The Dualist Legal Structure In The Tanzimat Era On Crimes Committed Against The Person

The Tanzimat Period is one of the important periods of Turkish Law History. In this period, measures were taken in the field of law as well as measures were taken in every field to stop the bad course of the country. On the one hand, Western origin legal institutions and rules of law began to be implemented in the country, on the other hand, hundreds of years of domestic Ottoman law institutions and rules were implemented. The norms provided by the reception method from the west led to the establishment of new courts. This issue has also made it compulsory to provide different legal instruments, apart from the Şer'iyye courts, which have existed since the classical period. This situation caused the dualist (dual) legal system to be in effect simultaneously in the country. While the dualist legal system is effective in many areas of law, its influence in criminal law has been deeper. In this context, the crimes and punishments of murder, wounding and abortion, which are among the crimes against the person, which are classified in a separate category according to the “Islamic criminal law”, are also heavily affected by the dualist legal structure. Because these crimes were being tried in the Sharia courts, which ruled based on the sources of Islamic law, they were also heard in the newly established Nizamiye courts. The results obtained based on the provisions on the crimes of murder, murder, wounding and abortion in the penal codes of 1840, 1851 and 1858, which are the basic criminal laws of the period, the opinions of the doctrine, and the archive documents that point to the practice are as follows:  The period when the aforementioned types of crimes were most affected by the dualist structure was the period when the penal code of 1858 was in force. Because some of the aforementioned crime types were not regulated in the criminal codes of 1840 and 1851, the Nizamiye courts did not take an active role in the judicial organization in these periods. The penal code dated 1858, tried to take precautions against the problems that may arise regarding the dualist structure, especially in its original form, which has not undergone radical changes. Article 171 for wilful murder, Article 182 for involuntary murder, Article 177 for wilful wounding, Article 183 for involuntary wounding and 192 for abortion of the penal code dated 1858 included the ways to solve the problems about dualist structure. In addition to the normative regulations, the jurists of the period also expressed various opinions on how the provisions indicating the dualist structure should be implemented. The practice of Ottoman Criminal law shows that after the irade-i seniye (normative regulation) dated 1909 came into force, aforementioned crimes were judged in Nizamiye courts instead of Qadı courts. The study reveals that it is beneficial to receive  normative regulations from a state which has the same legal and social mentality.