Negotiating Sharia, Secularism, and The Body: Gender and Legal Reforms in Post-Ottoman States

As published in the Volume 3(1) of Ramjas Political Review

Abstract

With the collapse of the Ottoman Empire, its successor governments faced difficulties in reconciling Islamic legal traditions with secular rule. The issue of gender emerged as a key element in legal discourse, particularly the regulation of the female body. This essay discusses Turkey, Egypt, and Tunisia's policy approaches to family law reforms, sharia implications, and the layered application of secularism. It examines the symbolic and functional roles of gender in codifying citizenship through a legal lens, aiming to demonstrate how these dynamics legitimised state authority while forging new notions of identification and belonging.

Keywords: Sharia, Islamic legal traditions, Secularism, Gender, Belonging

Introduction

The breakdown of Ottoman authority in the early 20th century indicated a period of great legal and ideological transformation across the Middle East and North Africa. As new post-Ottoman states were striving for modernisation, legal systems became platforms for contests between Islamic law (sharia), secular ethical norms, and nationalist ideologies. The debates were centred around the key issue of gender, and most particularly women's status, as part of family legislation, marriage, divorce, inheritance, and public conduct.

This paper explores three influential states that emerged from the post-Ottoman period—Turkey, Egypt, and Tunisia, aiming to analyse the complex connections between legal development and gender politics within specific narratives of state formation. They reflect unique lines of development with a shared thematic focus. Together, they reflect a broader regional trend: an attempt to synthesise Islamic legal traditions with secular modernist projects. In this struggle, the female body becomes a contested site that illustrates tension between control and resistance.

Sharia and Legal Inheritance in Post-Ottoman States

During later times of Ottoman legal practice, there existed a unique type of syncretism that incorporated Hanafi Islamic jurisprudence (fiqh), qanun (imperial decrees), and customary laws influenced by regional tribal and societal traditions (Hallaq, 2009). This pluralistic structure provided a level of freedom of interpretation within legal traditions; yet, at the same time, it simultaneously reinforced inequalities, especially about issues of gender as well as kinship relations. The Mecelle (Ottoman civil code) of 1876, though based upon Hanafi principles, attempted to codify Islamic legal doctrines into an integral codex, thus mirroring the trends within modernising Islamic jurisprudence while sustaining its earliest traditions (Hallaq, 2009).

Following the breakdown of the empire in the early 20th century, this elaborate legal code was taken up by new nation-states created at that time. The decentralisation of Ottoman central authority, however, fractured the cohesion of its legal institutions. During the process of state formation, many states opted to secularise various sectors like criminal, civil, and commercial law to make them compatible with European patterns. Nonetheless, laws governing personal status, including marriage, divorce, custody, and inheritance, remained within the purview of sharia courts or sharia-based legal systems. The persistence here was a consequence of a convergence between political pragmatism, cultural identity preservation, and religious legitimacy retention.

This development created a dualistic legal code wherein modern civil codes were accompanied by religious laws. The dualistic form fostered significant tension, especially as gender reform became a central focus within modernising discourse regarding the state. Reform proponents, as well as lawmakers, presented adherence to sharia within personal status legislation as a unifying strategy. This approach maintained cultural cohesion while at the same time paving the way for significant legal progress in other areas. However, because of its significant direct impact upon women's private sphere, particularly regarding marriage, divorce, and inheritance, personal status legislation emerged as fundamentally the most ideology-sensitive area of reform.

By framing the realm of family law as a ‘private’ sphere, state institutions successfully posited their specific understanding of secularism as an administrative task rather than an expression of ideological bias. Nonetheless, this dichotomous definition was not without political implications. Charrad (2001) argues that family law reforms functioned as ubiquitous tools of the central authority of the state. They were aiming to make kinship relations compatible with the purposes of central governance—either by lessening tribal authority, by eroding clerical influence, or by creating a modern national identity.

Within this construct, sharia played dual roles: as an embodiment of religious persistence and as a unifying force within debates concerning reform. The discussion of legal evolution often used binary oppositions between ‘obsolete’ religious practices and ‘progressing’ secular modernity, framing the alteration or wholesale reform of Muslim family law as a required civilisational imperative. However, many Muslim conservatives and renewal advocates took such changes to be constraints imposed by foreign pressures upon genuine Muslim identity and holy authority.

Additionally, codifying sharia, wholly aimed at codifying and modernising Islamic jurisprudence, often made it inflexible. Since then, legal rules have been codified in rigid codes, and jurists have been denied the interpretive liberty they previously enjoyed through ijtihad (independent reasoning). This process was used to immobilise the law at a certain point in history by limiting its ability to adapt to shifting social and cultural conditions (Hallaq, 2009, pp. 419–425).

While traditional Muslim legal reasoning did not allow for free rein, it still provided for adaptability through the concept of ijtihad. And various post-Ottoman legal systems cast such interpretations as unchangeable statutes, thus inhibiting the natural evolution of Islamic legal discourse. Such inherent inconsistency of embedding sharia within legal statutes created lasting inconsistencies within postcolonial Muslim legal systems.

The gender reforms in this constitution did more than simply equalise women and men under the law; power, religious authority, and cultural identity were also part of it. Throughout various periods, female heads of household governed under personal status legislation corresponding to sharia were a stand-in for deeper ideological debates that involved modernity, Islam, and the creation of national identities.

Republic of Türkiye: Secular Nationalism and the Recasting of Gender

Following the collapse of the Ottoman Empire, Turkey launched a comprehensive and ideologically driven secularisation process, led by Mustafa Kemal Atatürk. Atatürk aimed to create a new nation-state founded on Western models, thus relinquishing the Ottoman-Islamic identity in exchange for a national identity rooted in reason. Legal reforms, especially those encoded in the 1926 Swiss Civil Code, were at the centre of this revolutionary process and comprehensively displaced Islamic personal status law. These legal reforms banned polygamy, introduced civil marriage and divorce, and granted Turkish women rights equal to those of men in property, guardianship, and contractual obligations (Kandiyoti, 1988).

The changes to codified legislation entailed not just administrative corrections but important symbolic moves calculated to redefine national identity, where secularism became a part of the very essence of Turkish identity. The changes done in the family law were a significant step away from Ottoman customs, allowing Turkey to identify with the European civilisational benchmark and present proof of its own march towards modernity. In this context, women were key symbols of modernity. Their emancipation was seen as a critical benchmark to be achieved by Turkey to be counted among equal nations.

It is essential to understand that the gender reform policy undertaken by the state had a structured and hierarchical character. As much as the formal legal rights granted to women were increasing, at the same time, the female body became a prominent symbol within the emerging secular structure. The ban on veiling in public institutions, the promotion of women's education, and the increased participation of women in the labour force were not separate measures but rather parts of a state-imposed strategy designed to steer social change (Kandiyoti, 1988; Hallaq, 2009). Symbolically, unveiling women was a performative act that represented state-endorsed modernity. The female bodies were ‘unveiled’ in a literal sense as well as from an ideological perspective, as they were reconfigured as spaces of visibility, regulation, and political engagement.

This specific form of feminism, which Tugal (2009) characterises as emancipation-from-above, carried important traits of exclusion. It provided little backing to grassroots feminist actions or alternative Islamic views toward emancipation. In Tugal's (2009) account, secular legal reforms implemented during the Kemalist period created a public space essentially incompatible with Islamic identity, hence entrenching the state as the final authority to speak to emancipation questions concerning women. Those who wore religious garbs and were seen publicly with a commitment to their Islamic veil or by manifesting religious piety were excluded; even with legislation having been passed with a view to supporting them, they were included among the ‘unemancipated’.

The long-lasting effect created a divided political culture, where secularism became an identity with progressive and feminist values, and religion became consigned to a private arena or defined as obscurantist. This binary vision did more than divide the richness of Muslim women’s daily life into fragmented parts; it also hindered the growth of a feminist discourse edified by internal Islamic values. The secular state undermined the Islamic frameworks for women’s rights by portraying the religion as obscurantist. It left little space for Muslim women to define feminism on their own cultural and spiritual terms. This led to discord, particularly among Muslim women who were committed to their faith. They stated that Kemalist feminism was group-centred and was designed for the rich. 

In this way, an environment was promoted that fostered counter-movements, especially among Muslim women who were committed to their religion, who argued that Kemalist feminism was sectarian and elitist.

In addition, the Turkish experience demonstrates that legal secularism acts as a tool used by a secular, centrally controlled state to exercise control over society, rather than as a device to liberate society and create independence. While women gained access to judicial mechanisms of civil law and reached legal equality in certain spheres, their identities continued to be deeply intertwined with a state-centred ideology. The state created the model of the ‘modern woman’ and viewed any deviations, especially those based on religious morals, with suspicion or hostility. For that reason, legal changes in Turkey replaced religious patriarchy with a paternalistic system based on centralised, secular power and thus changed but did not replace the site of control.

Egypt: A Synthesis of Hybrid Legalism and Limits to Reform

Whereas Turkey has experienced a marked secularisation of its legislative system, Egypt has pursued a gradual and combined approach, where civil developments in the legal system exist alongside the continued influence of Islamic law in personal status matters. This unique blending of legal systems in Egypt can be explained by its singular colonial and post-colonial history. The British ruling period from 1882 to 1956 probably had a key role to play in Egypt’s judicial modernisation, as civil, commercial, and penal codes of European provenance were absorbed; nevertheless, personal status matters like marriage, divorce, custody, and inheritance continued to be decided by sharia courts, which were overwhelmingly defined by compliance with the Maliki and Hanafi schools of Islamic law (Bernard-Maugiron & Dupret, 2002).

The coexistence of several legal codes within a single system operated both as a political compromise and a useful tool of policy implementation. The maintenance of sharia within personal law satisfied religious authorities, especially Al-Azhar, whilst, at the same time, operating as a guarantee to maintain progressive developments within secular reforms of other areas within the legal system. However, the outcome was a fragmented legal code in which citizens faced different principles across domains, disproportionately disadvantaging women.

Women’s rights activists, spearheaded by Huda Sha’arawi, who founded the Egyptian Feminist Union in 1923, protested against the patriarchal structures that permeated personal status laws. These activists worked towards several measures aimed at gender equality, including an all-embracing programme with educational initiatives, suffrage efforts, and legal challenges to the prevailing legal norms, which were shaped by their domestic roles. This activism yielded gradual changes during the 1920s and 1930s, such as legislation requiring judicial review of polygamous contracts and the recognition of women's right to request divorce on grounds of harm (khul) (Sonbol, 1996). However, such reforms were tactically framed to avoid confrontations with sharia law. Rather than direct rejection of Islamic legal concepts, reformists and legislators proffered reinterpretation or selective appeals to Quranic passages expounding gender equality and women's rights. Thereby, they posed reforms as reaffirmations of a true interpretation of Islam and not as foreign influences.

The state skilfully developed a subtle balance by employing sharia as a basis for cultural authority, all the while accommodating shifting gender norms. This highly complex legal system mirrored wider political developments taking place across Egypt by illuminating the intersectionality between nationalism, colonial modernity, and Islamic authenticity. In the 20th century, changes to family law became one of the few areas where rival ideological points of view were studied with extreme seriousness.

In recent decades, especially since the rise to prominence of Islamist groups, most prominently among them being the Muslim Brotherhood, there has been a buildup of tension. Political Islam, having gained ground since the 1940s, became a powerful movement where secular legal reforms were seen as signs of moral degeneration and external imposition. To those who subscribe to an ideology of political Islam, personal status law went beyond legal matters and gained an almost sacral character, being a representation of divine will. In view of that, any endeavour to modify this area, primarily regarding rights or freedoms involving polygamy, was seen as a direct challenge to Islamic identity and social solidarity.

Within political discussion, the female body became a powerful political signifier. The choice to wear or remove the veil, along with the display of women's bodies, was continually open to scrutiny within the political debates around Egypt's moral direction. Saba Mahmood, within her ethnographic study of a women’s mosque movement, explained that Muslim women understood Islamic modesty not as a sign of repression or subordination, but as a practice in moral training in the name of religion and self-cultivation (Mahmood, 2005). These practices challenged the liberal binary of liberation versus oppression as well as unsettled secular feminist narratives that equate emancipation with unveiling and modernity.

By the end of the 20th century, the different regimes in Egypt—namely Nasser's, Sadat's, and Mubarak's, recognised that personal status law lay within a symbolic order that could not be fully secularised without the risk of alienating meaningful portions of the population. The amendments listed in the agenda had a persistent trend, just like the 1979 Personal Status Law amendments (commonly called Jihan’s Law) and the 2000 Personal Status Law, that were intended to promote women’s rights in terms of divorce. The initiatives were controversially opposed by the religious authorities. As a matter of fact, the modest amendments received an enormous negative reaction, revealing the manner in which legal concerns regarding gender were tied to larger ideological struggles such as secular nationalism, Islamic revivalism, and global liberalism.

Planned legal reforms within Egypt are a prime example of inherent structural limitations of hybrid legalism operating within a conflict-fertile society (Bernard-Maugiron & Dupret, 2002). Instead of providing an even-handed mediator, the dual legal structure fuelled divisions. It was especially among women, whose legal rights depended on their marital status, religious affiliation, and capability to cope with legal institutions. While some reforms were partially successful, they were still invariably marred by the pervasive ideological dominance of sharia within the broader national conscience.

Tunisia: The State of Feminism and Legal Innovation

Among a number of subsequent states established in the post-Ottoman period, Tunisia illustrates a phenomenal first shift in legal policies toward addressing gender disparity, and in particular, in relation to personal status laws. At the time of independence from French colonial power in 1956, President Habib Bourguiba initiated a wave of constitutional and legal reforms, essentially reconfiguring the relationship among Islam, legal policies, and gender relations. The central theme behind such a reform movement was the adoption of a Code of Personal Status (CPS), a novel legal code that prohibited polygamy and allowed civil divorce. It made mutual consent between husband and wife obligatory for marriage and augmented custodial rights and inheritance privileges for women (Charrad, 2001).

In contrast to the Turkish example, which substituted sharia with a legal system based on European customary law, Tunisia followed a newer, more indigenous path. Bourguiba did not completely repudiate Islam but instead invoked ijtihad, in Islamic jurisprudence, to argue that Islamic sharia's fundamental principles are compatible with modern ideas of sexual equality (Charrad, 2001). This rhetorical strategy enabled Tunisia to implement legal reforms without an official break with Islam and protected the nation from being viewed as heretical or culturally treasonous.

The aforementioned legal innovation is a variation of what can be called a form of ‘state feminism’, which is a hierarchical nationalist endeavour wherein the state assumes a leading role to induce further emancipation among women (Charrad, 2001). Bourguiba viewed emancipation from patrimonial control as an ethical necessity and a crucial instrument to attain national development. The government wished to secularise Tunisian society and decrease reliance on outmoded kinship alliances, especially those linked with religious or pre-state power, by expanding access to education, employment, and family planning.

Nevertheless, the proposed constitution was advanced within authoritarian parameters. Tunisia's own dedication to legal secularism was part of a larger venture of positioning religious practice within a regulatory framework. The Ministry of Religious Affairs controlled the mosques, sermons, and religious education, with religious organisations in general subjected to ongoing marginalisation. Accordingly, the dominant account of religion effectively undercut the possibility of a pluralistic or community-based rethinking of Islam that included consideration of Islamic feminist views. Analysts noted that although the reforms undertaken by Bourguiba were fairly liberalising, they took place within a context marked by restrictions on civil rights and the exclusion of alternative religious and secular thinking.

Tunisia's law has, for a long time, been an important point of reference in the Arab world, frequently used to demonstrate possibilities for harmonisation between Islamic heritage and gender equality values. This exceptionalism has nevertheless come into question following events since the 2011 Arab uprisings overthrew the Ben Ali dictatorship and initiated a novel democratic polity with a diverse range of components (Charrad, 2011). The subsequent electoral win by the Ennahda party, perceived as a middle path between secular liberalism and Islamic traditionalism, reset political Islam at the centre stage in national debate, thereby putting into question Tunisia's continuity of progress relative to reforms previously achieved in gender.

Significantly, the post-revolution period did not reverse legal gains made in Tunisia. Rather, it was subjected to a new type of negotiation between secular and Islamic actors, resulting in agreement by contesting stakeholders to preserve the CPS as a national gain. Ennahda leaders repeatedly proclaimed their code consistent with Islamic values, prefiguring a change from resistance to reconciliation (Charrad, 2001). The transition from resistance to reconciliation also reflects a distinct manner in which Tunisia's transition history has created a new normative reference point, where equality among men and women has been integrated into national discourse, even between previously antagonistic parties.

Yet, controversies persist. Controversies over equality in inheritance issues, reproduction, and religious roles in education and the judiciary are prominent issues of public contention. The controversies are no sign of a retreat from change, but they are a sign of an ongoing struggle over Islamic legitimacy's limits and legal scope. Tunisia is a unique case in which Islamic legal theory, feminist movements sponsored by the state, and democratic opposition converge and yield a critical case study shedding light on gender change in a post-Ottoman, post-authoritarian state.

The Female Body as a Legal and Ideological Site

In those new states from within the old Ottoman Empire, attempts at legal reform, and in particular concerning gender, have persistently centred on the female body as a symbolic marker and a regulatory nexus. Rather than being considered a cultural or biological construct, the female body was a site of ideological contestation where those issues touching on modernity, national identity, and religious authority intersected. Issues of veiling, sexuality, reproductive rights, body movement, and dress went beyond concerns on personal freedom to encompass highly politicised arenas characterised by legislating paradigms, religious authority, and communal sensibilities.

Legislative interventions against women were frequently articulated through discourses on civilisation, morality, and national honour. In this context, the female body was not merely subject to surveillance, but quite literally governed by law. The state became accountable for determining which bodily practices might be deemed acceptable, honourable, or deviant. In Republican Turkey, the unveiled woman emerged as a figure to represent the modern, rational citizenry of the secular nation. The unveiling no longer represented a rejection of Ottoman-Islamic heritage, but was a performative means to sanction membership in Western ideals within a broader civilisational project. Legislative efforts and policies veered away from a practice of veiling, resulting in systematic exclusion from public sector jobs, higher education, and civil service, and thereby consolidating a binary between religiosity and modernity (Göle, 1996).

The hijab assumed gigantic political significance in the context of Islamic revivalist discourse in Egypt. At the close of the 20th century, marked by the ascent to power of the Muslim Brotherhood and subsequently by state crackdown, the practice of veiling was once again reclaimed as a counter-hegemonic resistance. For many, the act of wearing the veil became one that resisted conformity to patriarchal norms but, more significantly, became a conscious articulation of religious identity, a rejection of Western cultural hegemony, and a protest against authoritarian secularism. Mahmood (2005) elucidates that liberal autonomy can no longer be deployed to measure the veiled female body in Egypt; rather, it must be understood within some moral and religious discursive paradigms, which drastically alter the perception of agency.

Tunisia's legal reforms after its independence represent a key case study demonstrating the deployment of women's bodies in a state-sponsored project of secular modernisation. In Bourguiba's regime, styles of dressing and comportment by women were strictly controlled in a national development project. Public veiling was stigmatised, with an ensuing ban from some public institutions. Furthermore, a nationalist feminist discourse propagated a normative ideal of the secular, liberated woman characterised by unveiled hair, control over reproduction, and active economic engagement. Gendered ideals were concretised by the law, media propagation, and pedagogical programs, with a uniform policy agenda whereby, together with guaranteeing rights, a nation delineated its subjects' identities.

A woman's body came, in a variety of contexts, to be a first boundary, delineating between inclusion and exclusion in the sphere of multiple constructions of national identity. It was a symbol of religious purity or an icon of secular advancement, a site within literary works in which ideological conflicts were articulated. The implications of such a symbolic role were more than merely legal repercussions, extending to real-life repercussions: a woman's decisions in terms of dressing, marrying, sexual orientation, and body ownership were controlled by legal parameters but also by overall societal mechanisms of restriction. 

Furthermore, the symbolic meanings tended to make the female body hyper-obvious and explicitly defined, boiling down political action by women to being and behaving. Meanwhile, women were not often afforded an opportunity to contribute to coding those laws that they were subject to (Charrad, 2001; Sonbol, 1996). This contradictory status of being visible but voiceless remains a recurring characteristic among legal codes of post-Ottoman territories, where women occupied a pivotal role within national identity yet were simultaneously barred from legal authority. We must recall here that these processes are still relevant to contemporary society. Ongoing controversies regarding abortion rights, legislating sexual harassment, and regulating fashion provoke passionate political debate, attesting to the degree to which women's bodies continue to be a central site of conflict between legal regulation and moral imperative. In concert with feminist theory, gender alterations necessitate transformations of legal institutions, no less than a rethinking of terms like citizenship, subjectivity, and value granted to the body in legal discourse.

Conclusion

The complicated dynamic between sharia, secularism, and gender reform within territories once under Ottoman authority demonstrates that legal institutions operate not just as focal points of authority but as ideologically infused constructions. Those constructions are informed by and shape variant readings associated with religious rule, national identity, and conceptions of citizenship. Within the unique contexts of Turkey, Egypt, and Tunisia, programmes focussed on legal change after the dissolution of the Ottoman Empire attempted to re-establish both moral and symbolic foundations to the nation-state, all during reconfigurations to alter conceptions of judicial power. The combined understanding of women, especially with reference to physical autonomy, became a central feature within those reconfigurations, operating as a key juncture where variant readings associated with modernity, authenticity, and sovereignty converged.

It cannot be doubted that reforms have improved access to civil rights, education, and constitutional protection for women. Nevertheless, those reforms simultaneously provided space for new kinds of repression, replacing religious patriarchy with authoritarian kinds of patriarchal rule. In every case, political authority's legitimacy has been tested by allusion to the female body: regardless of whether unveiled or covered, located within public or private spheres, or displaying discipline or autonomy. This paper identifies a problematic double standard—if legal discourse purportedly frees up women, it simultaneously sets to work to use them, as their bodies are called upon to serve to establish ideological purity.

Additionally, the binary framing of secularism and sharia, oft-cited within reforms, reflects a problematic tendency to simplify sophisticated concepts and fan political polarisation. Examining case materials from Tunisia and Egypt, across historical and present-day scenarios, demonstrates that Islamic and secular models contain internal variety and are susceptible to diverse readings. Sharia and secularism are not inherently emblems of liberation or sheer subjugation, but rather both bodies of law have the potential to further or constrain gender justice depending on the prevailing political environments and interpretative approaches. 

Reforms should enable greater legal advancement within the domestic legal systems of regions formerly under the Ottoman Empire during the thirteenth century, while at the same time promoting an atmosphere that will support legal pluralism, democratic accountability, and robust interpretative debate. Sharia, therefore, should be newly interpreted not as a fixed or monolithic entity but rather as a dynamic moral-legal system that can revisit its foundational principles with reference to new developments. At the same time, the principles of secularism need to be examined in terms of their professed commitments to equality and autonomy.

Women should no longer be seen as peripheral or subservient actors within discursive processes that shape legal change. Personal stories, personal narratives, and conceptual perspectives should be central to efforts towards change. In taking such a view, the campaign departs from dominant secular paradigms of feminism, thus foregrounding religious women who have been excluded from religious and feminist agendas. The path towards gender change should neither ignore religious identity nor apply critical Western models of legal change uncritically; instead, it should promote original, critical, and dialogical strategies, foregrounding a commitment to global rights but being sensitive to culture-specific moral norms.

Post-Ottoman societies move beyond the legacies of fragmentation and forge a path toward a gender-sensitive legal system of justice that is pluralist, participatory, and transformative. Such an end may be achieved by putting in place concrete mechanisms that enfold these principles in practice. Legislatively, it may involve reviewing personal status laws to ensure gender equality, creating independent institutions for implementation monitoring, and encouraging public discourse featuring a diversity of views. Especially those of religiously observant women, who are so commonly excluded from dominant feminist narratives. 

Educational programs, training of the judiciary, and policymaking should work toward enabling citizens as actors in the legislative sphere, rather than seeing them as passive recipients of the law. Post-Ottoman regimes can create legitimate and responsive legal systems that are sensitive to the complexities of late-modern society by encouraging inter-paradigmatic dialogue between secular and religious frameworks and promoting an interpretively adaptive sharia alongside constitutional guarantees. Such reforms would go beyond symbolic gestures to result in a fundamental restructuring of the law as a space for inclusion, accountability, and genuine gender justice.

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The author, Imashi Maduwanthi Perera, is a student at Sapienza University of Rome.

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