Infusion of the Diffused: Four Circles of Diffusion Infusing the Legal System of Turkey

Chapter 2
Infusion of the Diffused: Four Circles of Diffusion Infusing the Legal System of Turkey

Esin Örücü

Introduction

This contribution is both a theoretical and an empirical effort, attempting to elaborate on the concepts of diffusion and infusion, and to illustrate how they work together on and in a particular legal system. It deals with the story of diffusion and infusion as part of the story of the ‘trans-frontier mobility of law’.¹There are a number of approaches to ‘trans-frontier mobility of law’, which form some of the theories for analysis of such movements. These are in addition to classical concepts such as voluntary reception, imposition, imposed reception and the like. This introductory chapter first considers other possible theoretical foundations of analysis and then goes on to develop diffusion and wave theory to explain the spread of the laws, and infusion and transposition to explain the internationalisation of the laws that have been diffused. Further, it considers, with examples, the diffusion and infusion shaping a legal system into an eclectic and synthetic whole, in spite of the indigenous culture being different to those of the infusing models: the legal system of Turkey. I present rather than assess here the result: a synthetically constructed legal system with its diverse foreign sources that are still alive and used as ‘source-laws’ today: the Swiss diffusion for instance, that started in 1926 still continuing if we consider the new 2002 Civil Code, the 2011 Code of Obligations and partially the 2011 Commercial Code.

Possible Theoretical Foundations of Analysis

Pierre Guiseppe Monateri, suggested ‘contamination’ as the basis for understanding the world of legal systems, saying: ‘the actual legal world is to be seen more as a world of “contaminations” than a world split up into different families’.² He claims that this idea is neither new nor linked to globalisation, since ‘practically every system, even in antiquity has grown through “contaminations”’,³ the practice of borrowing having always been a normal path of development. In his view the ‘widespread cross-diffusion of French and German patterns within civil law, and the overcoming of American models at the present, shape a similar legal landscape all across the world, with a wilderness of local variants’.⁴ A comparative lawyer can detect cross-pollination, cross-fertilisation and ‘horizontal transfers’ between systems in all places and at all times.

Further, Monateri claims that a ‘weak’ legal tradition, in the sense of one being widely open to foreign ‘cultural intruders’, is formed by borrowings, and presents the process as evolutive. Strong proximate systems rather than distant ones, prestigious patterns rather than discredited ones contaminate the weaker system. This can even be regarded as an everyday occurrence.

‘Contamination’ indeed is one useful theoretical approach.⁵ It is one of the more general paths of trans-frontier movement of the law. According to Olivier Moréteau, for instance, ‘reception, migration, circulation, and the like describe the visible. Contamination refers to the less visible, since its effects may occur later on’. He states that contamination is not a concept generally used to indicate influences and cross influences but is a useful term ‘to indicate the permeability of legal systems and the sometimes less visible influences they may have on one another’, and reminds us that from an anthropological viewpoint, it is a very rich concept.⁶

‘Derivation’ is also of great significance in the historical development of many legal systems.⁷ Mostly relevant for colonial relationships, it is yet another explanatory theory of legal development and especially of convergence of legal systems. As almost all legal systems are related historically and are derivatives of each other, the relationship between a legal system and its socio-cultural context does not stand in the way of its relationship with other legal systems or even with other socio-cultural contexts. Derivation however, implies a special relationship of parent and child. An inherent belief in ‘dependency’ forms the basis of this explanatory theory. Its use is rather limited; it is mostly Eurocentric and does not imply cross-fertilisation, confluence or overlap.

‘Appropriation of common laws’ has been offered by Patrick Glenn to form the basis of an explanation of legal development.⁸ According to Glenn, although the English common law and the ius commune have been widely discussed within the context of Europe, the fact that there were many more common laws and that these common laws themselves were in dynamic relationship, has been neglected. Until the nineteenth century the numerous common laws of Europe – French, German, Spanish, Dutch and English – lived in constant interaction with the local particulars and with each other. As these common laws expanded both within and outside Europe, particular laws they met appropriated them. There was constant contact and intermingling. Common laws were the main instruments of ‘conciliation’ of laws, at a time when law was not seen as an exclusive product of the State. Even later, when legal nationalism burgeoned, this continued to be the case. This is another explanation of the trans-frontier mobility of law.

In linguistics, the theory of the ‘family tree model’ of language development reflects an evolutionary approach and is the one generally used to explain ramification.⁹ This model (stammbaum) in linguistics was proposed by Augustus Schleicher in 1862.¹⁰ It assumed that resemblances arose from common origin (understood in terms of parenthood), and languages closely similar and linked were thought to have separated or diverged from each other, with original divergence and further subsequent divergence. The underlying human reality was originally thought to be migration of peoples.¹¹ This theory can also be easily translated and applied to ramification of laws. Exclusive reliance on the ‘tree-model’ of development can only explain ramification and divergence. In response, the ‘wave theory’ was developed and is discussed below.

Diffusion and Wave Theory; Infusion and Transposition

Two theories I would like to highlight, enlarge upon and use in my attempt here, are diffusion in combination with the wave theory to show the spread, and infusion together with transposition to indicate the internalisation of the diffused.

The word ‘diffusion’ comes from Latin ‘diffundere’ meaning to spread out, and in science is a theory used in fluids and has been defined as the process in which small particles released, or produced, in one part of a fluid spread out to form an even distribution throughout the whole volume of the fluid, or to pour out a liquid with wide dispersion or spread. It is synonymous with spreading, propagation and dispersal. Graham Thomson (1905–69) who studied the diffusion of gasses, described this process (Graham’s Law of Diffusion) and investigated the passage of dissolved substances through porous membranes coining the word osmose – an earlier form of osmosis.¹² An example is given in the Oxford Reference Encyclopaedia: ‘a drop of ink added to a bucket of water will disperse and eventually colour all the water in the bucket, even if the water is not stirred’.¹³This needs to be elaborated upon as it also corresponds to my understanding of ‘infusion’ to be discussed further below.

The theory, originally used in physics, chemistry and biology, has been translated into social sciences and used in anthropology, sociology, economics and finance. It has been given a relevant and rather broad meaning.¹⁴ William Twining for instance, believes that this theory rather than transplant theories should be taken up by comparatists to explain the phenomenon of how legal systems converge.¹⁵ Twining advocates the use of social science sources and challenges what he calls the simplified notions of ‘identifiable exporters and importers’, ‘export/import between countries’, ‘direct one way transfers’, the classical beliefs related to ‘objects’ and ‘agents’ of receptions, ‘parent systems and dependents’.¹⁶ Instead, he advocates that a particular innovation, networks for and agents and channels of diffusion, and the adoption of the innovation, are processes that should be studied. Though diffusionism seems to have gone out of fashion in anthropology, this is not the case in sociology. In this approach, the spread of ideas is pitched against the concept of innovation. Twining talks of cross-level diffusion, as diffusion also implies interaction or ‘inter-legality’ born out of a spreading in space.¹⁷ There is obviously a ‘diffusion of innovations’, but once the ‘knock-on-effect’ starts, very little remains of the original innovation, but there is probably further independent innovation. Diffusion is regarded as ‘an informal spread’, as a general and abstract term, ‘embracing contagion, mimicry, social learning, organised dissemination’ and other ways.¹⁸ The diffusion theory as I see it, is in fact a glorified transplant theory, or better still, to be called ‘transfrontier mobility of law’, put into social science terminology indicating the spread of ideas – a special type of communication.

Seemingly, the theory as such suffers from an ‘export bias’ as it looks at the innovator-exporter (diffuser), and therefore may lead to virtual convergence. It does not deal with ‘infusion’ that is, the importers’ point of view, and therefore cannot measure genuine or actual convergence, which involves internalisation of the received.

If diffusion is envisaged as circles or waves spreading, then I suggest it should be considered together with the ‘wave theory’. The ‘wave theory’ or ‘wave hypotheses’, which shows how changes spread like waves and disperse over a wide area, was introduced in the nineteenth century by another German linguist, Johannes Schmidt in 1872.¹⁹ According to this hypothesis, different linguistic changes may spread like waves over a speech area and thus lead to convergence. A subsequent wave may also move to areas not covered by the earlier wave. Schmidt drew lines (isoglosses) on a map to separate places where there were language differences – one isogloss enclosing one area with a particular linguistic form (divergence). Successive waves create a network of isoglosses. If, however, ‘one dialect gains a political or commercial predominance of some sort over adjacent dialects, those nearest to this central dialect may give up their own peculiarities and come in time to speak only that central dialect’.²⁰ Following various local divergences (the tree model indicated earlier), the subsequent groupings would then have come about by the operation of the wave model. In this hypothesis, two or more closely related languages may each have features in common with their own neighbours that they do not share with each other. The relationships are far more complicated than any which could be conveyed simply by means of a family tree, as the wave model caters both for convergence and divergence.

It must be remembered however, that similarities do not always arise from genetic relationships; neither does resemblance necessarily indicate common origin. There can be ‘horizontal transfers’ between adjacent systems. ‘Horizontal transfer’ can also explain why a borrowed concept or institution does not always exactly retain its original meaning. Areas nearest or adjacent to the initial change will change first and may even give up their own peculiarities. Subsequent re-groupings may come about on the ‘wave model’. Thus convergence can occur between concepts or systems originally very different.

It is, in fact, the resemblances between languages most distant from each other spatially which can least easily arise from the wave-like diffusion of an innovation, and are thus most likely to be the result, rather, of a relationship explicable in family tree terms.²¹

It is also the case that ‘languages in different areas which were not themselves necessarily related, became Indo-Europeanised through the process of contact’.²²Contact leads to convergence and convergence to uniformity. Thus, similarities can develop through time by the process of convergence through contact. Therefore, common parentage is not in issue since the ancestors could have been quite dissimilar but, through continuing contact, mutual influence and borrowing, the languages become significantly closer to each other, though never becoming identical. Thus waves cause diffusion and dispersals, occurring spontaneously through contact.²³

If the term ‘language’ is replaced by ‘law’, one can see that this combined approach could also indicate a way forward for an understanding of how legal systems function, change and develop; converge or diverge, catering for our understanding of both.

As already indicated, contamination, derivation and diffusion are all variations on the theme of ‘trans-frontier mobility of law’, which shows that legal systems live in contact and interaction, and are interrelated. Systems may have common roots or may have heavily borrowed from each other or, through some historical accident, be derivatives from a parent system. However, when laws are moved and then ‘transposed’, that is, ‘tuned’ to create the ‘fit’, variations occur.²⁴ That is why I have used and defined the term ‘transposition’ thus:

The term “transposition” is more apt in instances of massive change based on competing models, in that here the pitch is changed. In musical transposition, each note takes the same relative place in the scale of the new key as in the old, the “transposition” being made to suit the particular instrument or the voice-range of the singer. So in law.²⁵

In law then, each legal institution or rule introduced from one legal system (diffuser) to another (the recipient), is diffused into the system of the recipient, the transposition occurring to suit the particular socio-legal culture and needs of the recipient. Terminology used in classical statements of legal movements such as transplant, imposition and reception, have today been supplemented by a colourful vocabulary highlighting nuances in individual instances of this mobility such as grafting, implantation, re-potting, cross-fertilisation, imposed reception, solicited imposition, crypto-reception and inoculation.²⁶ We now also talk of cross-pollination, engulfment, emulation, infiltration, diffusion, infusion, digestion, salad bowl, melting pot and transposition.²⁷ New notions and bases for analysis are being developed such as collective colonisation, contaminants, legal irritants, layered-law, hyphenated-law and competition of legal systems. Images such as contamination, inoculation, irritation, diffusion, infusion, seepage, migration, circulation and infiltration are all appropriate in describing present day encounters, and the terms reception, imposed reception and concerted parallel development, the activities.

Although originally the term ‘legal transplant’²⁸ has been the usual one applied to all these import and export activities, I believe that the term ‘transposition’, discussed earlier, is more appropriate as it also involves ‘tuning’, that is the process of ‘fit’, the most important element for the workings of a legal system. Legal developments of our day are best seen as instances of transposition. The ‘tuning’ to take place after transposition by appropriate actors of the recipient is the key to success: the diffused must be infused. In fact, there may be a number of transpositions, since no single model has to be used by any one recipient. Old models may be abandoned with ‘optimistic normativism’ while new legal models are looked for.²⁹ In such a case, a transplanted legal system not compatible with the culture in the receiving country, without the appropriate transposition and tuning, will create only a virtual reality.³⁰ In answer to the question, ‘how do legal ideas, institutions and structures find their way from one location to another?’ it has been wisely put that ‘laws do not have wings’.³¹ This alone highlights the importance of those who move the law and help in its diffusion and infusion, and internalisation, that is, ‘tuning’. Countries that adapt transplanted law can have more effective legality by further developing their formal sources and building effective legal systems with effective economic development. This receptivity can be enhanced by making significant adaptation in the foreign formal legal order to fit the pre-existing formal or informal legal orders. Additionally, the diffusion of innovation will create new developments through infusion and the knock-on-effect.

In historical terms, most tuning was carried out externally by imposers or exporters of law, that is, by diffusers. This cannot produce a very sensitive kind of tuning, since it cannot consider the new pitch in its entirety, as the tuner is not an active player of the new instrument. It is internal tuning that is required, and for that, the tuners are usually the domestic judges. However, for successful³² transposition and then infusion, tuning is necessary at all levels, including legal education.

Below I trace Turkish courts as they cope with the tuning and transpose the received legal system, helping in the infusion of the diffused. Diffusion does not tell us anything of the outcome but only of the process. The outcome depends on the success of infusion of the diffused, and ‘transposition’ which talks of the process of ‘tuning’ and ‘fit’.

The Four Circles of Diffusion Infusing the Turkish Legal System