Revolution of Islamic Law. Eighty years of the Swiss Civil Code in Turkey. Fribourg: Hans-Lukas Kieser (Research Foundation Switzerland–Turkey); Walter Stofel (Univ. Fribourg), 20.10.2006-21.10.2006.
Reviewed by Kerem Öktem
Published on H-Soz-u-Kult (November, 2006)
Recent years have witnessed a proliferation The following summary of the debate roughly of literature on the legal aspects of Turkey’s Ke‐ follows the sequence of the panels. For the sake of malist modernisation. Most accounts, however, concision, overlapping and complementary pa‐ dwell rather uncritically on the ‘revolutionary’ pers will be discussed together, even if they were nature of the reception of European law texts, de‐ not presented on the same panel. picting the legal reforms as indispensable ele‐ The Symposium, initiated by Dr Hans-Lukas ments of the Kemalist teleology of ‘contemporary Kieser, President of the newly established Re‐ civilisation’ (muasir medeniyet). Some have dis‐ search Foundation Switzerland–Turkey and co-or‐ missed the adoption of European law texts as a ganised with Walter Stofel, Professor of Law at mere transplantation of codices rooted in distinct the University of Fribourg, brought together sev‐ traditions and therefore unsuitable for the Islamic enteen experts –legal scholars and practitioners, context of Turkey. Hence, they have depicted what historians and anthropologists of the Middle East– most legal scholars in Turkey name the ‘legal rev‐ who revisited the eightieth anniversary of the olution’ The terms ‘legal reform’, ‘legal revolu‐ adoption of the Swiss Civil Code (SCC) in Turkey tion’, ‘adoption’ etc. are used interchangeably in through the angles of their respective disciplines. this report. While these terms might difer in nu‐ This interdisciplinary approach facilitated a rich ances refecting the political or scholarly prefer‐ and diferentiated discussion beyond established ence of the user, they all refer to the same process narratives of success and failure or technical legal of the translation and adoption of French, Swiss analysis, while it contextualised the Turkish legal and Italian law texts in the frst decade of the reform both comparatively regarding other ma‐ Turkish Republic. as a superfcial emulation of jority Muslim societies and historically with a modern legal conventions. In the meanwhile, a view on more recent legal changes in Turkey. It body of scholarship in comparative legal studies, also raised broader questions pertaining to the re‐ particularly on the Swiss and Turkish Civil Codes, silience of legal culture as opposed to the relative remained largely inaccessible to the larger de‐ ephemerality of administrative acts, and regard‐ bates on modern Turkey. The Symposium Revolu‐ ing the feasibility of adaptation of legal norms in tion of Islamic Law – Eighty years of the Swiss a diferent societal and cultural setting. Civil Code in Turkey at the University of Fribourg Historical and anthropological approaches provided a welcome opportunity to reconnect to the Turkish case of legal reception these debates and to revisit such opposing narra‐ The papers of the frst panel entitled ‘Islam versus tives. Laicism’ dealt with the historical context of the H-Net Reviews adoption of the SCC in 1926. The terms secular‐ serted that it was precisely this fragmented struc‐ ism/secularisation and laicism (from the French ture that led the political elites to opt for a com‐ laïcité and the Turkish laiklik) are often used in‐ plete break with the Islamic tradition. She alluded terchangeably. It should be noted, however, that to the standardising impact of the SCC adoption despite the conceptual proximity, secularisation that ended the fragmentation of competing secu‐ mostly refers to the process and secularism to the lar and religious legal frameworks and court sys‐ state of separation between religious and political tems. power in western European societies. The Turkish Gottfried Plagemann (Kultur University Istan‐ form of laicism has been defned by critical schol‐ bul) examined the adoption of the SCC in 1926 as ars such as Baskin Oran as a policy to subordinate a prime example for the republican elite’s deep- and control of religion. Osman Gürzumar (Bilkent seated belief in the educational power of law. An‐ University Ankara) suggested conceptualising the other central factor was the understanding of sec‐ Turkish Republic as the inheritor of the Ottoman ularisation not as a long-term by-product, but as Empire, in legal, institutional and political terms. precondition for modernisation. He inquired why Pointing to the treaties between the Ottoman and the eforts of the many commissions attempting to British empires in 1838, he gave an overview of develop the Mecelle through a comparative re‐ codifcation eforts in the aftermath of the reform view of the four Islamic schools of law into a com‐ edicts of 1839 (Tanzimat) and 1856 (Islahat), prehensive civil code came to an abrupt halt. thereby alerting the audience to the pre-republi‐ When the frst Minister of Justice of the Republi‐ can precedence of legal adoption and reform. In can government, Seyid Bey, was deposed, the Me‐ the second half of the nineteenth century, French celle was abrogated and the Islamic Sharia Courts secular laws were translated in close succession were dissolved in close succession. Plagemann to meet the legal needs of an Empire that became suggested that the Justice Minister Mahmut Esat increasingly integrated –if unequally and asym‐ Bozkurt’s decision to adopt the SCC was largely metrically– into the global market. Some of the shaped by the political and international environ‐ most important laws that were passed in the ment during the frst years of the Republic, and 1850s and 60s are: Adoption of the Napoleonic especially the Lausanne Treaty. In order to min‐ Trade Laws in 1850, the French Penal Code in imise deviations from a standard civil code and 1858, the Property Law also in 1858 and the Mar‐ circumvent special regulations for non-Muslim itime Trade Law in 1864. This process of legal in‐ minority communities Bozkurt opted for the SCC, novation culminated in the Ottoman Civil Code of hence pre-empting criticism from European coun‐ 1876, the Mecelle. Compiled by Ahmet Cevdet Paşa tries, as well as from within Turkey’s non-Muslim and based on Islamic sources, the Mecelle was the minorities, who hoped for a continuation of their frst ever attempt to codify and standardise Islam‐ religious status laws. Bülent Uçar, University of ic Law. It did, however, not touch on the most con‐ Bochum, in a later panel, drew attention to two tested matters of family and inheritance law. factors that ultimately thwarted the Mecelle-based While the Mecelle also served as a foundation for codifcation. While the theologians of the reform the short-lived Ottoman Family Law of 1917, the commission were unable to reach a common un‐ nascent Republic inherited a fragmented legal derstanding on how to proceed, the political at‐ structure of competing law schools, regulations mosphere among leading Kemalist elites turned and law texts, especially in the spheres of family increasingly hostile toward the idea of a contin‐ and inheritance law, and diferent provisions and ued engagement with Sharia courts, Islamic courts for the diferent religious communities. norms and theologians. Islamic law was increas‐ Başak Baysal Erman (University of Istanbul) as‐
2 H-Net Reviews ingly seen as an alien remnant, and a ‘law for Zionists and Young Turks. It was in this politically bedouins’ (Yunus Nadi). agitated and tantalising atmosphere that Mahmut Heinz Kaeufeler (University of Zurich) intro‐ Esat Bey began his studies of law at the University duced an anthropological perspective by distin‐ of Fribourg in 1912, which he completed with his guishing between two diferent concepts: The doctorate in 1919. Although he studied in Fri‐ adoption of a normative framework on the one bourg, Mahmut Esat Bey lived in Lausanne, side, and the longue-duree phenomena of legal where he joined the Foyer Turc (Turk Yurdu), an culture and esprit de loi on the other. The latter organization closely related to the Committee of might well outlive administrative initiatives. He Union and Progress and sympathetic to its radical proposed that the principle dictum of Islamic law social and poltical agenda. Members of the Foyer, “al-‘amr bil marouf wan-nahi ‘anil-munkar” (the many of them students of Law in Fribourg, Lau‐ obligation for every Muslim “to protect virtue and sanne and Geneva, campaigned for the seculariza‐ prevent vice”) was subordinated, but not replaced tion of family laws and were opposed to polygamy by the Turkish reforms, and hence co-existed with and religious parochialism. During his time in the adopted legal norms. The result was a mis‐ Switzerland, Mahmut Esat Bey came into contact match between legal text and innate legal culture, with some of the leaders-to-be of the Kemalist or at least a feld of constant tension and contesta‐ movement and the Turkish Republic, among them tion. As an authoritarian principle, the dictum Sukru Saracoglu, Cemal Hüsnü Taray and Reşit was irreconcilable with a liberal political mindset Safvet Atabinen. Some members of the Foyer, and and might therefore account for the authoritarian most probably Reşit Safvet Atabinen came into nature of the republic. This thread was received contact with the racial history theories of Geneva- with criticism by some participants, who accepted based anthropologist Eugene Pittard, who in the his claim of the authoritarian nature of Kemalism 1930s would also teach the Ataturk protégé and up to a point, yet insisted that Kemalist authori‐ infuential historian Afet Inan. Pittard’s infuence tarianism was historically rather than religiously might explain in part the decidedly secular, yet contingent. racialist conception of Turkish identity that be‐ came infuential throughout the 1930s. The second panel in general, and Hans-Lukas Kieser in particular examined Mahmut Esat The following panel on the women’s right di‐ Bozkurt’s life in Switzerland. Bozkurt was the mension of the ‘law revolution’ exposed two di‐ Minister of Justice who initiated and implemented verging analytical trends regarding the nature the adoption of the SCC in 1926. Mahmut Esat Bey, and depth of improvements in the feld. Şükran born into a landholding family of Kusadasi in the Şıpka (Istanbul Ticaret University) emphasised Aegean province of Aydin, had been infuenced by the new civil code’s revolutionary character and his family’s experience of displacement and fight examined it as a building block of the larger and witnessed tensions with members of local project of Kemalist reforms. Based on her criti‐ Greek-speaking Orthodox communities. This ex‐ cism of the Mecelle, which was far from providing perience might have shaped his ruthless stance gender equality, she argued that the secular civil towards communities not considered as Turkish. code facilitated legal equality between the sexes Kieser highlighted the signifcance of Switzerland and established (Turkish) women as legal per‐ and Swiss universities in the beginning of the sons, ending their subordinate status to men. In twentieth century as receptacle for dissident and this, the abrogation of the Mecelle and the adop‐ nationalist movements, and particularly for tion of the SCC amounts to a clear break with Is‐ Balkan secessionists, Russian revolutionaries, lamic law. In addition, she claimed, the Kemalist reforms also allowed for the introduction of gen‐
3 H-Net Reviews eral sufrage in 1930 (local elections) and 1934 tribal and secular extraction coexisted ever since (general elections). Two questions were raised by the adoption of the SCC, often complementing this presentation: Firstly, were the Kemalist re‐ each other, but sometimes also conficting. He forms motivated by a Feminist or an authoritari‐ elaborated this argument with reference to a an understanding of women’s rights? And second‐ number of recent surveys, which suggest the con‐ ly, have these reforms penetrated society suf‐ tinued discursive and material subordination of ciently to actually change the predominance of women in Turkey. This argumentation is notewor‐ male authority and female subordination? thy as it triggers the question whether large-scale Osman Can, Rapporteur to the Turkish Consti‐ surveys especially regarding intimate personal tutional Court, in his evaluation of the SCC adop‐ choices satisfy the requirements of validity. Most tion, responded to the frst question by clarifying of the recent Turkish surveys give an idea about that while the republican regime indeed granted overarching, socially sanctioned discourses, but general sufrage, this amounted to little more they do not deepen our insight into actual individ‐ than a symbolical act, as the conditions of the day ual choices. did not allow for democratic elections in the frst The fnal panel on Friday extended the scope place. Some discussants took his point further and of the debate in that it included family law experi‐ reminded the audience of the body of feminist ences in countries with majority Muslim popula‐ studies on the late Ottoman Empire and the early tions other than Turkey. In her paper on Muslim Turkish Republic that calls into question the reactions to the Turkish SCC adoption, Astrid emancipatory agenda of republican state. In his Meier (University of Zurich) pointed to its rela‐ excursus into the transformation of legitimating tively limited signifcance in Arab and Indian de‐ discourses –from dynastic (i.e. Ottoman) to secu‐ bates on Turkey. Muslim reaction focussed on the lar (i.e. Republican)– Can argued that secularism abolition of the Sharia and the secularising re‐ (laiklik) was not so much an essential value of the forms, and more specifcally on the termination of republican project but an instrument of state- the Caliphate. In large parts of the Muslim world, building that was embedded in –and ultimately the latter was widely seen as a momentous be‐ subordinated to– the overwhelmingly ethno-na‐ trayal of the very tenets of Islam. Meier also re‐ tionalist outlook of its authors. ferred to the historical context of colonialism in Tentative answers to the second question re‐ Arab countries, which allowed for the Sharia to garding the depth of reforms were provided by be championed as part of a moral-political and Mahide Aslan (University of Luzern) in the follow‐ anti-Imperialist discourse. The contrary was true ing panel. Her PhD research aims at reconstruct‐ in Turkey, where the ‘old order’ of the Caliphate ing the implementation of the new civil code in came to be associated with the subservience and the frst twelve years after its promulgation. She failure of the Sultan-Caliph to stand up against Eu‐ was discerning towards a glorifcation of the civil ropean encroachment. Her paper established the code’s emancipatory agenda. Its application began diferent meanings ostensibly solid terminologies rather tentatively and cautiously, especially in the such as Shariah or Islamic Law can take on under remote eastern provinces, while it hardly ever diferent historical conditions and in diferent penetrated the society of Turkey as a whole. Gün‐ constellations of power. Edouard Conte’s (Univer‐ ter Seufert (University of Cyprus) also contested sity of Bern) presentation on Islamic Family Law the claim that the civil code had revolutionised in Palestine and Israel responded to the earlier the role of women in Turkish society. He suggest‐ discussions on the Turkish example of legal stan‐ ed that normative systems of religious/traditional, dardisation in drawing attention to the state of ex‐ treme legal pluralism and fragmentation prevail‐
4 H-Net Reviews ing in Palestine. Exacerbated by the debilitating that would balance the demands of the religious efects of occupation and isolation, the Palestinian establishment for a re-introduction of the Sharia. territories (and Palestinian citizens of Israel prop‐ This statement, however, was seen critically by er) are characterised by a legacy of fragmenta‐ the other participants. tion: While the Preliminary Ottoman Family Law The following panel revisited the Kemalist re‐ of 1917 is still in use today, the contested coexis‐ public’s legal reforms, raising questions on the tence of competing law texts and courts contin‐ possibilities and constraints of comparative legal ues. Diferent legal traditions are upheld by segre‐ studies and on the success and failure of adoption gated court systems for Muslim and Christian of legal texts in societies with diferent cultural communities. and socio-economic structures. Ali Çivi, lawyer in Juridical aspects of legal reform and gener‐ Izmir and Basel, drew the balance of eighty years al appraisal since the inception of the SCC in Turkey, and The Symposium’s second day was dedicated to the touched on the repeated reform eforts that came appraisal of the social incentives for the reform of to full fruition only with the revised Turkish Civil family law in Switzerland, Egypt and Turkey and Code (TCC) of 2001. The implementation of the to a comparative evaluation of the Turkish case. SCC in 1926 met with multiple obstacles in the The frst panel brought to the fore the constraints frst decades. In the long run, however, the TCC of comparative legal studies in the absence of created a climate that facilitated societal emanci‐ common socio-legal trends such as secularisation, pation processes, even if asymmetrically in re‐ codifcation and continued reform. Hermann gional, social and ethno-religious terms. There‐ Schmid (Swiss Federal Ofce of Justice) and the fore, Çivi argued, a retrospective view on the Turco-Swiss lawyer Anne Banu Brand (Baden) adoption process suggests a relative success in compared the recent reform processes of the civil that it introduced a trajectory of increasing secu‐ codes in Turkey and Switzerland. They agreed larisation and equality in the realms of family that in both countries a general trend towards laws and individual status. Urs Fasel (University strengthening of women’s rights, especially re‐ of Fribourg) agreed with this general evaluation, garding divorce and inheritance has prevailed. In and argued for a dynamic understanding of legal comparison to the Swiss case, however, the Turk‐ reception and adoption, underlining that the ish reform process appears to have been some‐ process of adoption is continuous, and needs to be what more piecemeal and volatile at times. The supplemented by an exchange between Turkish latest codifcation of the Turkish Civil Code, if dis‐ and Swiss scholars and practitioners. His criticism cussed widely in Turkey, closely followed the ear‐ of the largely uni-directional nature of the adop‐ lier Swiss reforms. tion process and his call for the compilation of a In contrast, Sami Aldeeb (Swiss Institute for commentary on the SCC/TCC drawing on both Comparative Law, Lausanne) delivered a rather Swiss and Turkish cases in both languages was re‐ sombre presentation on the increasing fragmenta‐ ceived very warmly. tion of family legislation in Egypt, predicated The closing session allowed for a wider refec‐ upon the ossifed application of the Ottoman Hatt- tion on the issues at stake. Hans-Lukas Kieser sug‐ i Humayoun of 1856. He contended that Egypt gested thinking about the legal reform process as needed an intellectual debate to begin a legal re‐ the bright side of the Kemalist project, while the form based on indigenous and hence Islamic re-writing of history and language appears rather sources. He also underlined the necessity for an as one of its dark sides. As both reforms were con‐ independent power broker such as the military cerned with the identity of its citizens, however,
5 H-Net Reviews one might also want to explore to what extent the the study of global modernisation processes and secular aspect of the civil code can be separated the role of the transfer and adoption of cultural from the ethno-racial undertones of the Turkish norms and legal systems in this context. This is history thesis. Walter Stofel signifed Turkey’s le‐ even more signifcant for the analysis of Turkey’s gal ‘revolution’ as a case of societal change complex, contested, fragmented yet momentous through codifcation. He detected some meta- process of modernisation. Furthermore, it reaf‐ structures emerging from comparative legal stud‐ frmed the importance of historical contextualisa‐ ies, with legal fragmentation reigning in Islamic tion for such comparative approaches, and the and to a lesser extent Common law and standardi‐ need for solid, in-depth engagement with micro- sation in continental European countries, and for histories and everyday levels of analysis to widen that matter Turkey. the sample for further generalisation on the limi‐ Astrid Meier, Günter Seufert and Edouard tations and possibilities for cultural change, ex‐ Conte proposed to explore further some of the change and interaction through law. questions raised in the preceding debates through Footnotes: targeted, cutting-edge research in the felds of an‐ thropology, history and critical legal studies. Meier stated the need to examine more closely the processes of legal implementation, and suggested to consult the available literature in the anthro‐ pology of law, which so far is scant regarding Turkish case studies. The coexistence of secular legal norms and religious social and cultural norms in Turkey –alluded to, yet largely under- discussed during the Symposium– further under‐ scores the need for a deeper engagement with the micro-levels of everyday life. Conte drew atten‐ tion to the signifcance of Islamic Law in Europe grace to immigration from Muslim countries with‐ out secular family legislation, and the negative impact it has particularly on Muslim women. In this regard then, the Turkish engagement with a secular civil code indeed appears as a consider‐ able step forward. More importantly, he recom‐ mended a comparative debate on secular family laws in Muslim societies with a particular view on Turkey and Tunisia, which adopted the French Code Civile in 1957, while maintaining Islamic regulations based in the maliki and hanaf schools of jurisprudence, albeit with a modernist inter‐ pretation. The wealth of debates at this Symposium demonstrated impressively the importance of comparative and interdisciplinary approaches to
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Citation: Kerem Öktem. Review of Revolution of Islamic Law. Eighty years of the Swiss Civil Code in Turkey. H-Soz-u-Kult, H-Net Reviews. November, 2006.
URL: https://www.h-net.org/reviews/showrev.php?id=27679
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