Turkey’s Synthetic Civilian Tradition in a “Covert” Mix with Islam as Tradition: A Novel Hybrid?

Chapter 12
Turkey’s Synthetic Civilian Tradition in a “Covert” Mix with Islam as Tradition: A Novel Hybrid?

Esin Örücü

Turkey’s legal system definitely is not a mix of civil law and common law. Neither is Turkey a mixed jurisdiction in the classic sense, nor does it have an overt mixed legal system. After the collapse of the Ottoman Empire in 1920, legal evolution in the Turkish Republic was instigated through a strong desire to become Western and contemporary, and even today, rapid law reforms are being made to fulfill the requirements of the European Union acquis communautaire in the hope of joining it. Legal evolution has occurred through a succession of imports from the civilian world rather than being homegrown and has relied on major translation work. In fact, the legal system of the Turkish Republic has the appearance of belonging to the civil tradition in toto with the ingredients borrowed from Switzerland, Germany, Italy, and France. Yet although the Turkish legal system is not a mixed one in the orthodox sense, it is mixed in two other significant and different senses.

In the first sense, and derived directly from the preceding developments, it is a synthetic and eclectic legal system, legislatively reconstructed, initially between 1926 and 1930, by receiving, adapting, and mixing laws from various foreign Western sources and melting them down in the Turkish pot to form the overlay, the civil legal system. It is interesting to observe how this amalgam, most of whose parts hail from Roman law—a source alien to the endogenous traditions—works.

In the second sense, the legal system is a mix of these diverse laws with the lives of a people, the majority of whose values and demands reflect a different socioculture related to one past element of the legal system, that of the Ottoman Empire. With all of the Ottoman Empire’s laws erased by the Turkish Republic, this socioculture is significantly different from the sociocultures represented by the incoming laws. The Ottoman legal system was legally pluralistic, enveloped in Islamic law until 1839; thereafter, until its collapse, it was a legally pluralist mixed legal system with the added ingredient being borrowed from the French system. In its heyday, the Ottoman Empire was an Islamic state with a minority Muslim population ruling a majority of non-Muslims. This unique composite makes it possible to consider the Turkish legal system a “covert mix”—a novel hybrid. And the mix in this sense makes it worthwhile to look for the place of Islam and tradition in this laic civilian legal system (see Örücü 2011).

In a legal system such as the Turkish one, in which the source of law is determined by the formal legal framework and where there is no legal pluralism, custom and tradition become sources of law only when recognized by courts. The Yargıtay1 (the Court of Last Instance, the Turkish Court of Cassation) was enabled to make adjustments to the law by the flexible rules present in articles 1, 2, and 4, of the 1926 Civil Code (and now the 2002 Civil Code), which correspond verbatim to articles 1, 2, and 4 of the Swiss Civil Code. These are rules on justice and equity, objective good faith, and the principles of the rule of law. The importance of article 1 cannot be overstated for the development of Turkey’s law and legal system and the fitting of the frame to the demands of the people, mostly based on Islamic values and tradition. Hence, the covert mix was created:

The law must be applied in all cases that come within the letter and the spirit of its provisions. If no relevant provision can be found in the statute, the judge must decide in accordance with the customary law and, in its absence, in accordance with the rule that he would lay down, were he the legislator. In so doing, he must be guided by accepted legal doctrine and case law.

Developments as a result of using the referenced articles are extremely important. They met people’s needs, because no direct social contact occurred between the models and the recipient, and the culture of the masses, though partially changed, remained, on the whole, unrelated to the models—despite domestic efforts to change the people, their traditions, and their practices. In this chapter, I look at some cases in a number of selected areas where the courts provide innovative solutions, even while considering and developing the so-called source laws (kaynak kanunlar). Some Islamic institutions and demands based on them are being accommodated, as long as they are not related to the public law sphere and can be reinterpreted as compatible with the constitution and the legal framework. Turkish judges navigate and try to cater to the needs of people with clashing values—the underlay. This methodology used by the courts through reinterpretation of the framework allows Islam into the legal system, though in the guise of tradition, and justifies the use of the term covert mix.2 A number of such developments and limitations—some of which are supported by the European Court of Human Rights—are analyzed in this chapter.3

After briefly touching on the synthetic and eclectic nature of Turkish law, I will assess the position of tradition and Islam today at their convergence with the law, as they progressively become an element in the laic civilian mix.

The Story of the Official Legal System

Directly borrowed from and significantly influenced by foreign models, the legal system of Turkey is eclectic and synthetic. These models are all from continental Europe. None of the models represents an Eastern or religious viewpoint. Legal development involved a total reorientation away from Islamic culture toward Europe. The present legal framework has been synthetically constructed through imposed receptions, voluntary receptions, imitations, adaptations, and adjustments (Örücü 1992, 1996).

The Ottoman Empire went through a number of phases of development: between 1299 and 1839, it was a legally pluralist Islamic state; from 1839 to its fall in 1920, it was a legally pluralist mixed legal system with considerable French influence. Since 1923, the Turkish Republic—heir to the Ottoman Empire but not to its laws—is a centralized, modern, Western, laic, and civilian democracy. Today, as in the past, legal and social evolution takes place through voluntary receptions and at times also through imposed receptions, law being principally regarded in instrumental terms. When, in 1924, the ideological and technological decision was made to move outside the framework of the indigenous system of laws rather than to modernize the existing system, and to use the tool of reception as the sole method of law reform, a commission of 26 members was given the task of translating first the trilingual Swiss Civil Code from its French version. Subsequently, a number of special commissions translated most of the important commentaries on various branches of law into Turkish. During 1926, Turkish legal experts produced three entirely new codes, and more followed. The main aim of this purposive use of law was to demolish the foundations of the old legal system by creating completely new laws and to regulate and legislate people’s relationships according to what the Turkish government thought these relationships ought to be: a prime example of optimistic normativism and social engineering through law. The aim was to reduce the public role of Islam and make it solely a basis for personal conviction and morality. The Turkish Republic had a worldview, and its political, legal, and social systems were constructed and geared toward the achievement of this worldview. In discussing legal transplants, Alan Watson (2000) and others referred to the Turkish experience as the most extreme example.4

The various codes were selected from what were seen to be the best in their field for various reasons. The choice was driven at times by the perceived prestige of the model, at other times by efficiency, and sometimes by chance or historical accident. The civil law, the law of obligations, and civil procedure were borrowed from Switzerland; commercial law, maritime law, and criminal procedure from Germany; criminal law from Italy; and administrative law from France—all translated, adapted, and adjusted to solve the social and legal problems of Turkey and to interlock with one another.5 Later still, significant developments in the fields of democracy, fundamental rights and freedoms, and review of constitutionality found their way into Turkish law, the last by the 1961 constitution, in the preparation of which, wide use was made of the West German and the Italian models. The provisions on economic development were inspired by the 1949 Indian constitution. The 1958 French constitution and the American constitution inspired the present 1982 constitution.

Although interpretation tends to introduce subjective and cultural tonalities and values, foreign law always provides inspiration and stimulus. Laws of European origin, themselves the product of centuries-long interreceptions, displacements, and translocations, had their full influence on Turkey in the past century. This blend gave Turkish law its civil laic character. The goal was to become European—legally, socially, and culturally. This aim has symbolic value in Turkey and has culminated in the desire to be accepted into the European Union as a full member and as a Western European state. The official program was geared to eliminate any kind of personal choice regarded by the formal legal system as undesirable, and to this end cultural and legal pluralism was not acceptable and has never been on the agenda since the collapse of the Ottoman Empire. The reforms in the legal framework were accompanied and complemented by a series of social reform laws aimed at changing people; a most important feature of these far-reaching radical reforms was that their intended effect was to be not just on the legal system, but also on the social system.6

A comparatist would have expected the system to become an overt mixed legal system, maybe even similar to that of Algeria: an amalgam of civilian, customary, and Islamic laws. Yet the old institutions were destroyed, and the new ones were erected in their place mainly by legislative enactments (see Örücü 1995: 10).7 There was no scope for “bottom-up” lawmaking. As would be expected, the discord between the official formal legal system and the existing sociocultural systems was bound to create problems. However, the absence of bottom-up lawmaking in Turkey was—and is—somewhat compensated for by the role allocated to the high courts at the level of civil (Yargıtay), administrative (Danıştay), and constitutional (Anayasa Mahkemesi) matters.

In sum, in Turkey, at the level of law, the success of the import is not questionable; the mixed layers of modern law from various sources have been successfully adapted to the conditions of the recipient. The question, however, is whether the preceding story gives the total picture.

The Reentrance of Islam into the Story as Tradition

At the outset, one factor must be emphasized. Turkish laicism never meant a total separation of religion and state. It can best be described as active neutrality or as assertive laicism, because religion is under the control of the Directorate of Religious Affairs (Diyanet), which was converted in 1963 into a constitutional institution.8 Because the presidency of this institution keeps an eye on the beliefs, worship, and ethics of Islam; enlightens the public about their Sunni religion; and administers the sacred worshipping venues, paradoxically the laic state has indirectly appropriated religious authority. This development can be assessed as one of the paths contributing to the coming into being of the covert mix.

We should now consider how the legislatively created legal system is coping with cultural, traditional, and religious demands of the people. How far can this laic legal system, born and bred from outside sources and forming the framework and the overlay in this largely conservative and traditional society, accommodate other forces? How do courts tune the received law to meet the needs of society, thus completing the transposition process while at the same time configuring the legal framework to social needs, blending the underlay with the overlay, and in the process providing a door for the entry of Islam—albeit in the guise of tradition—into the laic legal system, thus creating a novel hybrid?

Catering for normative multiplicity without an overarching unitary normative framework does not seem to accord with the idea of the Turkish state. The nation-state was originally built on the idea of an identifiable culture, a cultural unit. In Turkey, we have a monolithic, centralized, territorial, and top-down model of law, which may or may not allow competing sources of law to exist. We know that the technique, the form, and the content of Turkish law and the values reflected therein are all imported. The technique used is codification and the hierarchy of the norms, the accompanying elements—more specifically the civil tradition—deriving from the West. The official content, in many ways foreign to the Turkish way of thinking, reflects values borrowed from the West with some modifications and does not fully reflect the values of the past traditional national spirit. Yet this outcome was intentional because the purpose was to change that mentality. On the one hand, Turkey illustrates that law can be used as a creative tool for bringing about certain desired effects and sometimes even needs in society, rather than rationally and naturally reflecting peoples’ needs and desires. On the other hand, though law can act as a harmonizing agent with economic, social, and cultural implications, such a legal system may not escape becoming a covert mixed legal system as the underlay gradually gains access into the realm of law, mostly in the form of unofficial legalities.

It is accepted in Turkey that an assumed similarity of culture exists between the Turkic and Islamic states, alongside an assumed similarity of culture with Europe. A large minority of the population, living mainly in urban areas, is Western in outlook and mentality: the Westernized Turk. For this educated, urbanized elite, a clear affinity of culture and outlook exists with Western Europe and the Western way of life. A much larger part of the Turkish population is rural and has a traditional outlook, which is maintained even when this population moves into the cities. Some of these poorly educated, rural Anatolians have become wealthy and politically effective. In addition, in the cities, the gap between the rich and the poor is wide, and the middle class has shrunk. Moreover, a populace also exists, which, having started with a traditional rural existence, has worked in other countries in Europe for some time and returned. This populace now fits neither into the first category nor the second. Although 98 percent of the population of Turkey is of the Islamic faith, these people are not all of the same sect or school. The inherent problems are not difficult to contemplate, and the courts try to adjust and homogenize the layers of systems within this covert mix.

With the emergence of democratic ideals and principles and of human rights values, standardization becomes more and more difficult to achieve and maintain; therefore, harmony in diversity and further mixedness may have to be accepted. The question is, how far? Because the mores, values, and mentality of the majority of the population are not reflected in the overlay of official law, an underlay of unofficial legalities has grown over the years, some of which have to be given cognizance by the official legal framework. Most of these developments can be seen in family law (religious marriages without a prior civil marriage, the legal status of children born into such unions, inheritance rights, and so on), but they are elsewhere as well. For example, wearing of the headscarf in public places (including universities) has been a major issue of contention for many years.

In the following sections, a number of selected cases9 are considered where courts face cultural and religious demands contrary to the vision embodied in the official legal framework but still cater for them within the legal framework, though not necessarily in keeping with it. Some aspects of the culture and tradition, such as religious marriage or the wearing of the headscarf in the public sphere, clash with the officially protected vision. These issues are related to laicism protected by the constitution. Therefore, claims based on such issues create major problems for the courts. But even in such cases, solutions have to be found.

The courts can deal with some other aspects of culture by navigating between rules within the legal framework. A number of examples related to bride price, the status of blood brothers for insurance purposes, the special nature of Hac (Hajj), and the “cow cases” are considered. In all these, we see the blending of the underlay and the overlay, pointing to the developing covert mix of the Turkish legal system and the birth of a novel hybrid.

Religious Marriage

Because laicism manifests itself in the essence of Turkish family law, it follows that only a civil marriage is legally recognized.10 Marriage has been secularized and is concluded on the oral response of the two parties. For the valid conclusion of a marriage contract, certain conditions have to be fulfilled: the capacity to marry and the absence of certain degrees of consanguinity and affinity, of an already existing marriage, of an adoptive relationship, and of certain diseases.

Mehmet Akif Aydın (2010: 181–82) bemoans the fact that during laicization of marriage, one very important impediment to marriage in Islamic law was left out: fosterage (süt kardeşliği, or milk sibling). Fosterage is a relationship between a man and a woman who were breastfed by the same woman during their infancy, which is an impediment to marriage between them in Islamic law and endures in Turkish Islamic tradition. However, it was not mentioned in the 1926 Civil Code as an impediment, nor is it included in the 2002 Civil Code, though most people do adhere to this tradition. There is no legal sanction. This barrier is an unofficial impediment and thus can be considered an unofficial legality.

Following the civil marriage ceremony, a marriage certificate (family record booklet) is given, without which a religious ceremony, imam nikahı,11 cannot take place, and it is a criminal offense to undertake or perform such a ceremony without this certificate. However, in very few cases is a sanction applied, because it is an offense that needs to be brought to the knowledge of the authorities, and when it is, it often results in acquittal.12

Empirical research tells us13 that seven types of traditional marriage exist in Turkey: berdel (two families agree, and sons and daughters are exchanged in a double marriage); beşik kertmesi (two families agree on the birth of two babies on their future marriage); başlık paralı evlilik14 (marriage takes place on the payment of monies by the prospective husband); kan bedelli evlilik (to put an end to blood feuds, one of the daughters of the family whose turn it is to carry out the next killing is given as a wife to the other family); kuma evliliği (a woman is married off to a man who already has a wife); kayın evliliği (a woman is married off to one of the brothers of her deceased husband on the decision of the family council); and akraba evliliği (a woman is married to a first-degree relative).

Another factual situation also exists, a traditional practice of the fellow-wife in the eastern provinces, whereby a woman lives with a married man. In such a case, if the official wife accepts the fellow-wife, the law cannot intervene; the law will only support her if she asks for a divorce.15

Obviously the realities of marriage in Turkey are quite outside the formally regulated one (Yılmaz 2003, 2005). However, none of the preceding types of traditional marriage, apart from kuma evliliği, would create a problem if formally concluded as a civil marriage. If the fellow-wife is regarded as a mistress, the law has nothing to do with it. Kuma evliliği, however, falls foul of the law, because it would be considered polygamy, which is illegal. Nonetheless, although polygamy is legally banned, one still comes across polygamous unions—though they are rare—in some regions, particularly in rural areas in the southeastern part of the country.16

It is a fact that religious conviction, long tradition, remoteness of villages, strict formalities attached to civil marriage, the long time involved in getting documents sorted out, the embarrassment of medical examination, and the like influence the spouses-to-be and their families to opt for religious marriage alone. This type of cohabitation in Turkish society is illegal. Though such informal marriages have no civil legal status in the formal legal order, they are generally justified by certain sections of society through existing tradition.17 Recently some cognizance has been attributed to this important unofficial legality, as is observed later in this chapter.

Although a religious ceremony is not needed for the marriage to be binding—a rule that is reiterated in the new 2002 Civil Code to indicate the secular nature of marriage in Turkey (article 143)—the fact is that, along with a civil marriage contract, a large number of Muslim couples perform a religious marriage ceremony, a verbal contract of partners in the presence of an imam, in accordance with classic Islamic law. Again, a majority of those who have adhered to religious marriage, even though only subsequent to a civil marriage, would also like to obey the rules of religion on divorce. Marriage in Islamic law can be dissolved by repudiation (talak, talaq, or the unilateral or bilateral decision of the spouses without going to court): if the spouses pronounce the specific statements, they are considered divorced under Islamic law. However, they are still married according to the laic legal system under which they married in the first place unless they also go to court to obtain a civil divorce. If they do not and they continue to live together, which they are not permitted to do under Islamic law, they would be committing the sin of fornication. Another result would be that any child conceived after the time of the Islamic divorce would be considered illegitimate pursuant to their religious beliefs. Obviously, this situation is not a concern of the official family law, but it has religious consequences for the couple as well as societal consequences for like-minded others (Aydın 2010: 181–82).

In 1998, the constitutionality of article 237/4 of the 1926 Criminal Code, which had been amended in 1936 to criminalize unofficial religious unions (imam nikahı) entered into without prior civil marriage and imposed a prison sentence of two to six months on the man and the woman, as well as a prison sentence on persons performing such religious ceremonies without seeing the official certificate of marriage, was challenged as violating several articles of the 1982 constitution: article 2 (the principle of laicism), article 10 (equality), article 12 (the character and the scope of fundamental rights and freedoms), and article 24 (freedom to conduct religious services and ceremonies).

The Anayasa Mahkemesi, in a judgment given in 1999 and published in 2002, stated that article 237 was inserted into the Criminal Code to give support to civil marriage; that without this section, polygamous unions would become possible; and that though such unions have no legal consequence, they pose a threat to the concept of family and are thereby detrimental to the social order. The court opined that if couples enter such illegal unions, women cannot use their rights arising from marriage, children are illegitimate and lose their inheritance rights, and such marriages cannot be invoked against third parties and thus have no legal protection. For those reasons, civil marriage must be strengthened to protect the family and the rights of women and children. The court then added that the law did not violate, as was claimed, the principle of equality between those who live together with no marriage of any kind and those with only a religious “marriage,” because members of the first group do not wish their unions to be regarded as marriage, whereas those of the second group consider themselves to be, in fact, married. Equality before the law does not mean that everyone must be treated alike; differentiation based on article 13 on limitation of rights and freedoms is not unconstitutional. The court further pointed out that “the Civil Code is a fundamental building block in the structure of the bridge to a contemporary and laic legal system for the Turkish Republic,” and civil marriage, “being in the essence of that block, is also specifically protected by article 174 of the Constitution.”18 The court said that keeping law and religion separate is the most important function of laicism.19

Yet, in 2005 the Anayasa Mahkemesi, by annulling article 140/2 of the 2005 Turkish Criminal Code, added a controversy to the debate on religious unions.20 Article 140/1 states that, upon complaint, a person who enters a sexual relationship with a child of 15, without pressure, threats, or deceit, shall be imprisoned for six months to two years. The annulled article 140/2 stipulated that if the perpetrator were older by five years than the injured, the punishment would be doubled, without seeking the condition of complaint. The court based its decision on the principle of equality before the law. Yet as pointed out in one of the dissenting opinions, this provision did not violate the principle of equality and was not contrary to the principle of protection of the family, the principle of privacy of private life, or proportionality in criminal sanctions. The court should have considered the meaning, the purpose, and the context of the provision. This annulment, on the one hand, could encourage illegal unions entered into without official marriage or, at the very least, send a signal to the traditional and religious sectors of the society that such relationships will be tolerated from now on—a signal to facilitate the upholding of Islamic traditions, the unofficial legality. On the other hand, the decision has created a discrepancy with the new arrangements in the Civil Code, which state that majority is reached at 18 years, which is also the normal age for marriage. Both sexes can get married at 17. The bottom line is a reduction to 16 by the judge for exceptional circumstances.

Quite a different signal was sent, however, through the Law on the Protection of the Family, passed in 1998,21 pursuant to the amendment to article 41 of the constitution.22 This law states that when a spouse, a child, or any other member of the family living under the same roof as the violent spouse informs the justice of the peace that she or he has been a subject of domestic violence, the judge can impose any number of sanctions.23 Though this law uses the word spouse throughout, it was passed as affirmation by the legislature that women and children are the ones subjected to violence in this male-dominated society, that society should not tolerate this kind of behavior, and that women and children should have an official power to turn to when unprotected.24 Because the wording used covers spouse and family, the woman—who may be married off by her family at a very early age to a man through religious marriage alone—or cohabiting partners get no protection whatsoever. This law is in keeping with the laic approach and strengthens civil marriage by introducing measures in addition to the Civil and the Criminal Codes to protect the wife and children, yet it does not cater for the realities of the Turkish families or offer any protection for such “families,” which are a persistent social issue in Turkey. All in all, the official attitude is obviously ambiguous, ambivalent, and undecided.

In fact, neither the legal framework nor the Yargıtay (the Court of Cassation) accept the fact that couples living out of wedlock can be regarded as in a relationship to be protected by law. For instance, while the Yargıtay was determining what constitutes an engagement so that it could decide whether gifts beyond the ordinary should be returned on the breaking up of the relationship, it was careful to differentiate between two situations: (a) the breaking up of an engagement (that is, a promise to marry), in which case gifts beyond the ordinary would be returned, and (b) the breaking up of people “living together without a valid marriage act,” in which case the gifts need not be returned.25