Jean-Romain Ferrand-Hus - Alphonse Royer (1803-1875), penseur méconnu de la codification ottomane

Réalisation : 16 septembre 2021 Mise en ligne : 16 septembre 2021
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On15 March 1856, as the Congress of Paris is opening, Alphonse Royer – a man of letters, an Orientalist and a traveller whohad become director of the Imperial Opera – hands Napoleon III a note on the reform of theOttoman Empire, and more particularly on its civil codification. While thereform of the old Empire and its inclusion in the Concert of Europe is activelydiscussed by diplomats, the author submits to Napoleon III a personal andoriginal vision of Ottoman civil codification. A necessary initiative in thevast movement of secularisation of Ottoman law – that Royer called for –, this codification, far from being conceived as awork of regeneration of the common law of Turkey through the drafting of a codesuperseding Sharia law, is designed on the contrary to combine the Europeanelement with the Ottoman legal tradition, that is based on Islamic law andjurisprudence. For Royer, who is surprisingly a relativist and hostile to anyform of legal acculturation, the "codification of current civil laws inharmony with the needs of the time" cannot mean the more or less faithfultransposition of the provisions of the Napoleonic Code. The temptation of acodification project thought through the prism of the French model isdiscarded, but is soon replaced by another legal model. Thus, on 22 March 1856,just a few days after the Royer note was sent to the Tuileries, acircular issued by the Emperor's Civil Cabinet takes up the main lines of thenote, but adds more evocative terms – instead of the "harmonization" and"codification of civil laws" soberly advocated by Royer, the pompousexpression "Corpus iuris turc" is now preferred to designatethe codifying initiative that fell to the Ottomans. The reference to theJustinian compilations which is therefore made by a jurist in the Emperor'sCabinet and not by Royer, appears to be an authoritative argument that gives adifferent tone to the initial text.

Beyondthe originality and the historical and legal interest of the Royer note, itwill be necessary to assess its posterity, or at least its scope, byconfronting it with the turn taken by the Ottoman codification from the 1860sonwards. Whether it be the first note of 1856, its avatars or the Ottomanprojects that succeeded it until 1868 – when civil codification was officially launched–, all these projects propose a method and a horizonfor civil codification, converging in some aspects and diverging in others.Drawing on the the writings of French agents –  thoseof Royer but also of official diplomats – as well as on reference works highlighting the formsof "re-elaboration of ancient models", the challenge of thispresentation will also be to determine whether the invocation of Roman law as alegal model to be imitated is a mere rhetorical device or whether it reveals adeeper reflection on the part of those who use it on how to approach thecodification of a foreign law.


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