What an excellent question! The answer is both complicated, and simple. The first thing to remember, is that Tanzimat laws weren't always intended to create new social norms or social patterns. Often, they were just officially codifying things that had been in practice for awhile, as part of a modernizing effort to essentially "have all laws on the books." That's the simple answer! This law was more along the lines of codifying homosexual behavior that was pretty common at the elite level of Muslim societies at the time.

So this law in particular was enshrining what was a common elite practice in many Muslim societies. It seems crazy, given the Islamic world's reputation vis a vis homosexuality today, but the Islamic world has a long, long history with what you might call homonormativity. Using that term particularly is fraught, because historians working with gender argue that today's strict homosexual/heterosexual dichotomy, where you are either "gay" or "straight," with no middle ground, is a construct emanating from mid 19th century Europe, and so using any of today's terms before that is dicey.

I digress. In classical Islamic Persianate culture, beauty was ungendered. The sort of words one might use to describe beauty could be equally applied to women or young, beardless men. I'm using the term Persianate to refer to Islamic societies that were heavily influenced by Persian language, society, and culture. Because of heavy Persian influence from the Abbasid Caliphate forward, the major early modern Islamic empires (Ottoman, Safavid/Qajar, Mughals) shared a relatively common culture, similar to the Latinate culture that united early modern Western Europe.

In Persianate cultures, all of them Muslim, it was very common for older men to romantically pursue younger, beardless men. Once a teenager started to show traces of growing his beard (his "khatt," or line), he generally moved to the "older man" category, stopped being pursued, and frequently became a pursuer. There is a HUGE AMOUNT of poetry about this, usually tied deeply to Sufi philosophy- finding true beauty in the inpermanence of this world, sadness at what age and time does to us, and how different Allah and his love is compared to our transient existence. Remember, from the time a man hits puberty until his khatt starts to show is extremely limited. The Persian word for one of these young men was "amrad," which sort of occupied a third gender space. In elite Persianate society, once you were fulfilling your reproductive duties in a heterosexual marriage, it seems that people didn't much care about what you did with your own private sexual life. You could get a bunch of female concubines and wives, and society was fine with that. You could spend your time chasing after amrads, and people were fine with that, too. There is a great list in Najmabadi's fantastic book on this subject of how official Safavid chroniclers list the sexual proclivities of various Shahs, totally without judgment. While elite practice is pretty clear, what was going on in lower rungs of society is a little more opaque. There is pretty decent evidence that lusting after amrads was passably acceptable in common society, as well.

And lest you think this is a cultural artifact of pre-Islamic Persian or Greek culture (remember, the Muslims were reading Plato just like we are- if this description of older man/younger man coupling sounds familiar to you from the Symposium, that's not a coincidence!), and the fact that Sufis were normalizing homosexual love as part of a symbolic understanding of the sad impermanence of this world versus the perfect timelessness of Allah, they were also finding Quranic support for this. You are probably familiar with the Islamic description of paradise- every time there is a new terrorist attack, some Islamophobic guy in a Reddit thread is usually quick to make a joke about those 72 virgins. Well, in the Quran, the proper word for those virgins is "hur," an eternally young female beauty. Those hur, have a counterpart, "ghilman," who are eternally young MALE beauties. The sexual role of the ghilman is not explicit in the Quran, but the parallel descriptions and services listed for hur and ghilman certainly got later Muslim commentators going. Aligning their cultural practice with quotes from the Quran, plenty of Persianate Muslims were pretty sure there were serving girls AND amrads awaiting them in paradise.

This is already getting quite long. Ottoman society, as one heavily influenced by Persianate culture, had a lot of the same cultural practices going on, and Ottoman poetry is rife with references to young, beloved, men. What changed to get us to today's world? That answer, you will not be surprised to learn, is complicated. There is a fair deal of argument about it, but the rough academic consensus is: Europeans. Muslims in the 19th century were made to feel VERY aware and self-conscious of anything they did that Europeans deemed "backwards." Homosexuality in elite Muslim circles was most definitely something Europeans considered backwards. As Europeans penetrated the Muslim world, ever deeper, either economically (in the Ottoman Empire) or in full on colonialism (India, Egypt), they constantly commented on and tried to suppress these practices. Muslim elites, trying so hard to modernize their empires and societies to avoid being colonized, tended to adopt European mores along with technology and institutions. In this climate, the Ottoman decriminalization of homosexuality can be read as an act of resistance to European hegemony. The Ottomans were trying to preserve an old cultural practice while modernizing elsewhere. The practice was inexorably extinguished, however, as more and more European cultural practices and attitudes were adopted. As the practice was slowly extinguished in former Ottoman lands, modern Islamic fundamentalism came along with its radical reinterpretation of Islam and things like homosexuality, and replaced a lot of what I've been talking about here. And then, about a hundred years after browbeating the Ottomans and Persians into subduing homosexual practices, Europeans decided homosexuality was fine, sometime after the mid 1990s. And in a cruel historical irony, they browbeat Muslims for being anti-homosexual, after their great grandparents spent a century extinguishing a vibrantly homonormative society.

Najmabadi's "Women with mustaches and men without beards" is the best, modern book on the subject. You will find an extensive bibiliography in it if you are curious! And do yourself a favor, go read some of Hafiz and Saadi's (both of Shiraz) poetry on "beloveds!"

EDIT: Wow, this blew up! Thanks for the gold, kind internet stranger! I am also honored this fostered such erudite discussion in the comments, I hope I can make some time to go through and address it all!

So firstly, a word on terminology. The Ottoman Empire didn't decriminalize homosexuality in 1858, it decriminalized consensual sex between males. Consensual sex between females had been theoretically decriminalized since 1545, with the creation of the criminal code of Kanunī Sultan Süleyman, or Süleyman the Lawgiver (alternately Süleyman the Magnificent). The legal status of "homosexuality" as a concept is much more expansive than sex acts -specifically anal penetration- between males, encompassing rights and freedoms for people of all genders such as, legal recognition of relationships, the ability to raise a family, religious sanction, access to education, healthcare, and cohabitation, freedom from violence, the ability to congregate, and more.

Based on my masters research, there is hardly any scholarly evidence in English whatsoever that points to the motivation for decriminalization of anal sex between men. Though I cannot substantiate this theory without further research, it is possible that such decriminalization was the result of Abdülmacid's importation of French law, as it served as his model for the 1858 Criminal Code. Gülnihal Bozkurt, who has catalogued the various European codes adopted by Ottoman reformers, points out that the 1858 Ottoman Criminal Code was based on the French Criminal Law of 1810. France decriminalized sodomy in 1791.

Bozkurt also catalogues how the Ottoman Criminal Code was further reformed in 1911, this time based on the Italian Zanardelli Criminal Code. In the south of Italy sodomy had been decriminalized since the adoption of the Napoleonic Code in Sardinia. It was legalized in the North of Italy in 1889 with the Zanardelli Code. Sodomy was never re-criminalized in the Ottoman Empire, nor in the newly established Republic of Turkey, which used the Zanardelli Code as the model for its 1926 Criminal Code, and none of the laws in operation in the Middle East regarding sodomy seem to stretch back to older Ottoman regulations.

The Ottomans and later Turks borrowed provisions from a number of countries, among them Switzerland – which criminalized sodomy until 1942, and Germany – which did so until 1969, though not in their criminal codes. Still, it is unclear whether or not the importation of the French and Italian criminal codes were purposefully chosen to accord with the Ottoman position on sodomy and female same sex relations as non-offenses.

With respect to your second question regarding the justification for these changes in an "Islamically-based" system of law, the answer goes back to the notion of kanun vs. şeriat. Here şeriat(I'm using the Turkish word purposefully) refers to the prevailing interpretations of sharia in the Empire during the period in question, while kanun relates to law more generally. Some scholars have used model of opposition to explain the difference between these two concepts, with one relating to "secular" law, and the other to "religious." This is wrong, not only because it imposes an anachronistic binary on the past, but because kanun itself is based on and often incorporates şeriat.

Dror Ze'evi argues that beginning with Mehmet II, or Mehmet the Conqueror, who ruled from 1444 – 1446 and again from 1451–1481, there was a concerted effort to bridge şeriat with state law into a hybrid system. The ĥanafī madhhab (a sort of school of jurisprudence within Sunni Islam), which prevailed in the empire, recognized the need of states and rulers to legislate kanun for their subjects' welfare on the condition that they did not contravene specific Islamic injunctions, a concept known as sīyāsa shari'yya. Moving into the 15th and 16th centuries more room was made for the sultan's laws within the şeriat, and judges were charged with applying both forms of law at the same time, often even within the same court decision. In theory the şeriat was supposed to prevail whenever there was a contradiction but this was not true in practice.

Amr Shalakany troubles this history somewhat with his contention that sīyāsa shari'yya was well-established before Mehmet's time but that's somewhat of a digression.

Between 1534 and 1545, Kanunī Sultan Süleyman created his own criminal code as part of a larger effort to systematize law in the empire. Again, according to Ze'evi, judges were supposed to act in accordance both with the şeriat and the kanun, so that when the strict rules for evidence in şeriat courts could not be met, kanun regulations were imposed. In the realm of “homosexual zina” (illicit sexual relations outside of marriage between people of the same sex) same-sexual acts between females were effectively decriminalized with this iteration of kanun, whereas for males the following rules applied: minors engaging in sex together were subject to punishment and a fine although children who “yield to a pederast” must be chastised and their fathers should pay a fine, unmarried males were fined progressively depending on their income, and married males were subject to the same scale but with a larger fine. Notably, “homosexual” and “heterosexual” zina carried the same punishment. Ze'evi hypothesizes that these changes were the result of an effort by state bureaucracy to regulate and control sexuality as a source of unrest, especially because the şeriat, with its high barriers to conviction, was inadequate in dealing with these issues. Semerdjian seems to share this view. In this way, although the punishments for zina are more severe in the şeriat than in the kanun, the ease with which a conviction could be attained by utilizing the kanun meant that regulation effectively increased during this time (at least in theory), especially because criteria for punishment under the kanun eventually came to encompass intent and opportunity, rather than pertaining only to the commitment of an illicit sex act as witnessed by two or four upstanding male Muslims (depending on the madhhab) as required by the şeriat. In practice, very little is known regarding the rate of trial or conviction of same-sexual acts under either the kanun or şeriat, and much archival research needs to be done in order to answer this question, which presents a unique set of methodological challenges itself.

As an aside, the status of same-sex sex acts in the various schools of jurisprudence or madhahib (sing. madhhab) is variable, and more importantly, just because a particular madhhab takes a dim view of it, does not mean that that position was reflected in court. Many legal historians, among them Elyse Semerdjian, Leslie Pierce, and Amira Sonbol have compared juridical writings to court records in Syria, southern Turkey, and Egypt respectively, to demonstrate the gaps between the literature and actual rulings as they relate to gender. A similar analysis for same-sexual relations would be particularly valuable. Semerdjian's study of illicit sex in Ottoman Aleppo shows the rumblings of such a development, though it does not focus on same-sexual relations per se.

"The Learned are all enamored of boys, Not one remains who female love enjoys." -Nedim

Speaking first to the suspension of the Hadd (Islamic punishments); the Ottoman Empire had done this before, as had the second Caliph (a companion to the Prophet Muhammad) Umar ibn al-Khattab, although not actually for the decriminalization of homosexuality.

Quran 2:185 allows for suspension of the law in exceptional situations. It speaks about adherence to Ramadan, and Allah's will that you be at ease and not take on undue burden to glorify God. Although the secular reforms of the Tanzimat, and the dire straits the Ottoman Empire found itself in was a bit of a stretch, this is the source of their justification. The duty of spreading laws across the empire was the responsibility of the Shaykh ul Islam (held by a couple individuals throughout this reformist period), who agreed that these new reforms were necessary in such times of turbulence and diminishing power for the good of the people. This idea of being for the good of the people (maslaha) is not part of sharia but general Islamic jurisprudence (fiqh).

Now for the historical context! The Ottoman Empire has historically been a very pluralist society, accepting members of all walks and religions. Although there were certain restrictions such as the jizya (head tax on non muslims/dhimmi) the millet system of rule allowed for autonomous rule by fairly independent religious communities. However, during the 19th century the Ottoman Empire is faced with pressure from the inside and out, losing ground, losing power, and finding itself further and further behind the advancements in Europe. I'm not going to get to off track with the reasons for the reforms, but understand that the leaders of the Ottoman Empire were desperate for change, and were ready to accept significant reform.

The first of these was the Edict of Gülhane (1839), it prescribed a few things including the right to life for all, but the most relevant piece is that despite it's reforms it still acknowledged Islamic principles and law. The Ottoman Empire continued to relieve itself of these religious restrictions though, including abolishing the death penalty for apostasy four years after the edict. The Ottomans as a whole though weren't that fanatic to begin with:

"Throughout Ottoman history only one case of rajm (stoning) was decided and carried out (in 1680). This happened in a period of extreme religious fanaticism, and it encountered such opposition that it was not repeated."

The next big reform took place in 1856, known as the Imperial Rescript (Hatt-i Humayun). This is the one that decriminalized homosexuality. It completely removed any reference to Islamic principles and law. It's seen as having taken much of it's influence from the French and British who had just fought the Crimean War alongside the Ottomans.

So, why bother decriminalizing homosexuality? It was prevalent. While Europe often perceived the Turks as lustful and addicted to the filthy pleasures of pederasty, it was not to such an outrageous degree. In fact back in the 18th century a man Mehmet "Efendi" was traveling in Paris, and his hosts knowing he was a 'lustful turk' thought to show him what Paris had to offer in rentable boys

After being shown around the Palais Royal Marketplace at night he challenged the image of Turkey being especially notable for pederasty arguing that with, "1500 boys exclusively occupied in sodomy" and, especially shockingly, their availability and prices advertised on printed cards, it was far more blatant in Paris than anywhere in the Ottoman realm.

It did exist though and was simply addressed as part of secularization/reformation. The French, one of the greater influences on the 1858 Rescript had already done so in 1789. This also was solely applied to men because female sexuality was already decriminalized, it was often surmised that female homosexuality was prevalent in harems and bath houses. However, most of the sources on that are foreign assumption, and the well known Lady Montagu, one of the only(?) sources to actually enter a bathhouse, denied that it occurs in bathhouses during her first and only visit to one(which was her only mention of homosexuality in the entirety of her letters).

I hope I was of some help though in expanding your knowledge of the subject.

"When the rose[anus] holds carnival, The tulip's[vagina] smartly shown the door." -Necati

The Tanzimat:Secular reforms in the Ottoman Empire; A brief look at the adoption of Secular Laws in the Ottoman Empire with a particularfocus on the Tanzimat reforms (1839-1876), Ishtiaq Hussain

Stephen O. Murray Historical Reflections / Réflexions Historiques Vol. 33, No. 1, Eighteenth-Century Homosexuality in Global Perspective (Spring 2007), pp. 101-116

Islamic Homosexualities: Culture, History, and Literature edited by Will Roscoe, Stephen O. Murray

Hello everyone,

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