The Shaping of the 1857 Security Pact in the Regency of Tunis: A Reappraisal of the Nineteenth Century Constitutional Reforms

Abstract

This article examines the creation of the 1857 Security Pact (ʿAhd al-amān) in the Regency of Tunis. This law is commonly viewed as having been drafted and imposed by the European powers as a replication of the Ottoman Tanẓīmāt and as having inaugurated an era of modernizing reforms that led to a secularized nation-state, notably due to the notions of equality it introduced. I show instead that this new law aimed to solve concrete problems in a context of severe fiscal crisis and that its creation was more a story of hard-fought diplomatic negotiations than of modernization and secularization. While the Security Pact was imposed by European pressures, and while the Ottoman Tanẓīmāt were invoked during the negotiations, Tunisian political elites shaped its content from the start, in an effort to defend the beylical state’s legal sovereignty and affirm its Muslim character. It was these elites who introduced, against the wishes of the French government, equality for all inhabitants of the Regency (including foreigners) and the principle of a common jurisdiction for the bey’s subjects and for foreigners. These legal changes must not be analyzed as an exceptional rupture (a claim made by those who view the nineteenth century reforms as having initiated a “modern” Tunisia) but as part of a long series of transformations. Although not everyone agreed about their legitimacy, these transformations were understood by reformers within the framework of a long-standing Islamic theory of the practice of change that was based, not on ijtihād, but on the widening of custom (ʿurf) and of the discretionary power of the ruler (siyāsa).