Aftermath of a Revolution: A Case Study of Turkish Family Law (original) (raw)
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Between State Law and Religious Law: Islamic Family Law in Turkey
2020
This paper presents the results of a pilot survey that was anonymous and quantitative in nature on how a group of Muslim citizens in Germany understands and applies the classical Islamic family law. This small survey was conducted 2018 in different places throughout Germany, mainly among young educated Muslims. The main questions addressed were related to identifying the role of a European context and its impact on German Muslims' understanding of marriage and divorce, gender roles, as well as matters pertaining to interfaith marriage, mediation, and the role of the secular law. The survey consists of 20 questions divided into three main thematic constellations: a) Marriage, b) family life, and c) divorce. The employed framework corresponds to a shift in research paradigms in modern Islamic theological studies: Rather than emphasising classical Islamic conceptions of family law as laid out in classical sources and regarding these as the exclusive representative argument of a so-called Muslim point of view, the current focus is rather on how Muslims actively comprehend these conceptions and see their role in their respective lived contexts. The survey under consideration took as its starting point classical pre-modern Islamic concepts as they figure in classical Islamic literature 1 as well as modern Western secular conceptions of family law. Both conceptions, i. e. the classical Islamic and contemporary conception of Islamic law, serve as two mirrors for understanding the current conception of marriage and divorce among the group of participants. This helps to understand any aspect of change or continuity within this conception. 2
Marriage and family were widely debated topics in the final decades of the Ottoman Empire. They were related to the different projects of reform which attempted to save the Empire and restore it to its former glory. In spite of this, major reform of family law did not take place until the very last years of the Empire. Such reluctance had to do with the fact that marriage was traditionally regulated by principles based on the holy texts of each religious community, and any attempt at change meant an open confrontation with the Muslim, Christian, and Jewish religious establishments. It was only after the Young Turk Revolution that a cautious transition from divine law to legislative activity based on reason took place. While the Decree on Family Law of 1917 based its rulings concerning Muslim marriage on Islamic law, it made flexible use of different interpretations of the Sharia. The choice among these different scholarly opinions was justified by reference to the need for change, stemming from the negative experience of previous arrangements, as well as from the recognition that change was also taking place outside the Empire. The more important novelties this short-lived, but highly interesting, legal document introduced included the age of marriage and limits on polygamy.
Evolution of Unofficial Muslim Family Laws to Islamist Legal Pluralism in Erdogan's Turkey
The Sociology of Shari’a, 2023
Civilising Kemalist elites of Turkey in early twentieth century employed state law as an ideological apparatus of top-down social engineering to construct a new secularised Muslim Turkish citizen identity. Unlike other Muslim countries in the world, they decided to completely get rid of Islamic laws by transplanting the Swiss Civil Code and by criminalising centuries of old Islamic laws. However, this has paved the way for the emergence unofficial (informal) Muslim legal pluralism as a result of resistance from some sections of the people. Thus, as a result of the dynamic interactions between official and unofficial laws, new hybrid official and unofficial laws are being continuously constructed. By looking at the available case law, statistical data, official reports, surveys and field research on age of marriage, registration and solemnization of marriage, polygamy and divorce, this chapter aims to present the current socio-legal picture. Moreover, it will also look at another phenomenon, i.e., state-sponsored informal Islamist legal pluralism under the rule of the Islamist populist authoritarian regime of President Recep Tayyip Erdogan's AKP (Justice and Development Party) in Turkey.
2013
As Turkey is officially a secular state and it adopts Swiss Civil Code, thestate implements secular legal system. However, as people in Turkey are predominantlyMuslim and theyare born and raised in a traditionally Muslim environment,people generally and especially women live under the influence of these two sometimescontradictory and inconsistent legal systems and customs. As a result, thereare clashes and especially Muslim women are subjected to the negative impact ofthose clashes. So for example, women who wear headscarf because of being inline with Islamic principles face problems when they want to go to school or workor engage in politics. Or when they want to keep their maiden surname which isvery mainstream practice in many Muslim societies, it becomes impossible for Muslimwomen in Turkey because of the secular Swiss Law. In the present paper thecircumstances in which Muslim women live under these inconsistent and contradictorylegal systems will be studied.
“Competing Frameworks of Islamic Law and Secular Civil Law in Turkey: A Case Study on Women's Property and Inheritance Practices,” Women's Studies International Forum, Vol. 48, No. 1, pp: 29-38, 2015, (with Mary Lou O'Neil). (SSCI), 2015
The article stems from empirical research conducted with a group of women living in Istanbul who have conservative life styles bounded by an Islamic worldview. It attempts illuminate the negotiation and contestation between official civil law and Islamic law. The findings demonstrate that women inherit and bequeath property in a social setting where their gender roles are defined by their adherence to Islam. We argue that in Turkey women’s inheritance practices are not determined solely in accordance with the secular civil law, but rather are the result of a complex and intertwined combination of legal sources, where an Islamic worldview often leads to the adoption of Islamic law. In other words, the application of the secular civil law in Turkey is limited by the common practice of Islamic Law. Rather than follow the gender equality mandated by the civil law, the inheritance practices of many Islamic women are constituted with a deference to some aspects of Islamic law creating a situation of legal pluralism in Turkey.
The article stems from empirical research conducted with a group of women living in Istanbul who have conservative life styles bounded by an Islamic worldview. It attempts to illuminate the negotiation and contestation between the official civil law and Islamic law. The findings demonstrate that women inherit and bequeath property in a social setting where their gender roles are defined by their adherence to Islam. We argue that in Turkey women's inheritance practices are not determined solely in accordance with the secular civil law, but rather are the result of a complex and intertwined combination of legal sources, where an Islamic worldview often leads to the adoption of Islamic law. In other words, the application of the secular civil law in Turkey is limited by the common practice of Islamic law. Rather than follow the gender equality mandated by the civil law, the inheritance practices of many Islamic women are constituted with a deference to some aspects of Islamic law creating a situation of legal pluralism in Turkey.
The Constitutional Status of Women in Turkey at a Crossroads: Reflections from Comparison
2015
Constitutionalism and the Establishment of a Gender Order Since its foundation, the Turkish Republic took the enhanced status of women to epitomize its promise of modernity. Yet to the extent that women´s equality was even articulated in Turkey, as well as anywhere else in that time, its expression was primarily sought in the public, not in the private, domain. Thus, the 1924 Turkish Constitution explicitly sanctioned primary education-free and compulsory-for both men and women (art. 37), as well as the equal right of men and women to vote and be elected (arts. 10 and 11). Also, a general reference to the principle of equality before the law, without any explicit mention to sex, was included (art. 69). Yet none of these expressions of equality were seen as incompatible with many of the inequalities between men and women explicitly enshrined in the Civil Code-adopted in 1926 and largely drawing from the Swiss Civil Code-, or in the Criminal Code adopted that same year, largely inspired by the Italian code. Both of these codes which came to replace the legality of the Ottoman Empire simply reflected the XIXth century European family ideology, an ideology revolving around the construct of the male breadwinner / female homemaker, which accompanied the establishment of the modern industrialist order. The constitutions of the time simply accepted, rather than challenged, this ideology and the gender order that came with it. This basically held true for early post-World War II constitutionalism as well. There was, after all, a significant overlap in time between the heyday of the breadwinner family model (in the 1950s and early 1960s, coinciding with a strong postwar pro-natalist movement) and the postwar wave of European constitutionalism, which we take as epitomizing contemporary European constitutionalism. If we look at both the Italian Constitution (1947) and the German Fundamental Law (1949), we find that they both prohibit discrimination on the grounds of sex at the same time as they endorse elements of the dominant family ideology. The German Constitution refers to the duty of the state to protect marriage and the family, but also, specifically mothers (6.1 GBL and 6.4 GBL). Even more explicit is the Italian Constitution, which, additionally, refers to the concept of the family wage (36.1) and to women´s essential family duties which must be respected through adequate working conditions (art. 37). It is therefore not that surprising that the first post-WWII constitution in Turkey, that of 1961, which was largely inspired in the German Basic Law, also banned discrimination on the basis of sex (art. 12), while at the same time referring to the family, as the fundamental unit of the Turkish society, which, like motherhood and childhood, deserved State protection (art. 35). It also contemplated the need to protect women from being employed in jobs unsuited to their sex (art. 43). This family ideology and, linked to it, this particular constitutional understanding of equality of sexes, was also reinforced in the early case law of the constitutional courts. Thus, in Italy, in the early 1960s' jurisprudence, the Constitutional Court affirmed the husband´s "marital authority" as well as his obligation to provide for his wife.[1] Most infamously, in 1961, the Court upheld a criminal code provision making the wife's adultery a criminal offence, yet qualifying the husband's as such only when it was performed within the household or "notoriously" elsewhere, considering the distinction justified on the basis of the social consensus around the different meanings of men's and women's adultery, as well as on the fact, taken as self-evident, that the wife's adultery constituted a more serious attack to family unity,[2] a doctrine it would abandon just a few years later. Slightly more subtle was the German Federal Constitutional Court, which, although clearly rejecting the idea of woman´s marital subordination, still interpreted the gender equality and the sex antidiscrimination clauses in the German Basic Law (arts. 3.2 and 3.3 GBL) to allow for differentiations based not only on "objective biological" but also on "functional" differences, mostly linked to their expected different family roles, assuming women´s greater dependency on men.[3]
New Middle Eastern Studies, 2015
In 2011, the world witnessed how massive civil resistance by men andwomen alike led to the forced departure of long-serving authoritarian leaders in the Arabworld. In the present transitional period in which constitutions have been suspended and newdefinitions of citizenship are being debated, women’s rights and family law have neverthelessemerged as contentious areas in the Arab World. These have been portrayed as symbols ofthe old regime and as deviating from the principles of shariʿa. Calls to amend women’srights abound. By comparing both pre- and post-revolutionary family law developments infour Muslim-majority countries, this special series of articles explores the implications ofthese controversies on the rights of men and women in the political transition processes ofEgypt, Indonesia, Iran, and Tunisia.
This study provides an account of the current secular Turkish Civil Code, with special focus on family law issues such as consent, age of marriage, registration of marriage, status of religious marriage ceremonies, polygamy and divorce. The study looks at various aspects of the relationship between official law and the Muslim majority's Shari'a law. Statistics and research have shown that, in connection with certain issues in the socio-legal sphere, Shari'a laws are still operative, in spite of their contravening the Civil Code. This situation has led to some civil courts having to deal with Shari'a issues. This study looks closely at some civil court decisions where judges have taken into account public opinion and local legal postulates concerning the matter in question.