Professional Documents
Culture Documents
30(1), 25–41
Non-recognition of Post-modern
Turkish Socio-legal Reality and the
Predicament of Women
IHSAN YILMAZ*
ABSTRACT After the transplantation of the Swiss Civil Code, Turks have had
three alternatives: avoidance reaction, to follow the secular state law or a
combination of the requirements of Muslim law and secular law. This article
argues that they followed the third option by developing a new hybrid rule
system that amalgamates the rules of unofficial Muslim law and of official
Turkish law. The consequences for women are not promising if the State does
not change its ‘melting pot’ mentality which does not take into account the
reality of the plurality of cultures. Women suffer because of the State’s rigid
stand regarding the black-letter law. It is not feasible to ignore dynamic legal
pluralism. Otherwise, other than being unable to protect women, the State could
lose its control over the socio-legal domain as a result of the growth of unofficial
legal alternatives.
Introduction
The enticement of instrumentalist usage of law for social engineering by the
Jacobin Kemalist elite was unavoidable. They espoused a legal modernist
discourse that—they believed—has conferred legitimacy on them as this mod-
ernist and revolutionist legal discourse ‘sketch pictures of widely shared, wistful,
inchoate visions of an ideal’.1 Thus, the minister of Justice of the time, Mahmut
Esat Bozkurt, ‘declared that what he desired was not reform but a revolution of
Law’.2 In the mid-1920s, Commercial Code, Penal Code and Civil Code were
transplanted from different Western European countries. After almost 80 years
of this revolution, when one looks at the issues from a black-letter point of view
and from an armchair perspective, this has been a tremendous success in
bringing a completely clean legal sheet. Yet, we need to analyse the socio-legal
sphere before jumping to ideological conclusions. As one scholar wrote quite
recently, ‘How much the adoption of European laws affected society remains
* Law Department, School of Oriental and African Studies, University of London. E-mail: ihsanyil-
maz@yahoo.com
1
Robert Gordon, ‘Law and Ideology’. Tikkun, 3(1) (1986), p. 16, cited in June Starr, Law as Metaphor: From
Islamic Courts to the Palace of Justice (New York: State University of New York Press, 1992), p. xxxv. In the
Turkish case, the vision was ‘Ataturk’s vision’, Esin Orucu, ‘Turkish law’, LSAA Lecture given at SOAS,
University of London, 16 January 2002.
2
Mahmut Esat Bozkurt ‘Turk Medeni Kanunu Nasil Hazirlandi?’, in Medeni Kanunumuzn XV. Yildonumu lcin
(Istanbul, 1944), pp. 7–20, cited in Gulnihal Bozkurt, ‘The Reception of Western European Law in Turkey (From
the Tanzimat to the Turkish Republic, 1839–1939)’, Der Islam, 75 (1998), p. 294.
ISSN 1353–0194 print/ISSN 1469–3542 online/03/010025-17 2003 British Society for Middle Eastern Studies
DOI: 10.1080/1353019032000059108
IHSAN YILMAZ
one of the most difficult questions for sociological and historical studies of the
law … One hesitates, therefore, to categorically state that the reception move-
ment was beneficial or detrimental to Turkish society’.3 Indeed, the socio-legal
reality has some other things to say as well.
Some people have not abandoned their religious law and in some cases they
try to meet the requirements of both laws which are sometimes conflicting.
Sometimes, they simply manipulate both laws and even abuse them. The
consequences for women are not promising. These vulnerable members of
society suffer because of the State’s rigid stand regarding the black-letter law
and its unending militantly positivist hope for a culturally homogeneous society.
The present study endeavours to analyse some consequences of the Turkish
legal modernization project vis-à-vis women in the post-transplantation socio-
legal sphere in Turkey with a special emphasis to family law issues. This article
shortly discusses the issues of legal modernity and legal pluralism and then from
a historical perspective it looks at the secularization of law in Turkey and its
official uniform secular law. Then, the socio-legal sphere is analysed. Finally,
some negative consequences of the State’s non-recognition of the socio-legal
reality that mostly affects the women is elaborated on.
3
Bozkurt. ‘The Reception …’, p. 295.
4
On the limits of law, Allott’s work provides a comprehensive and detailed analysis. Antony Allott, The Limits
of Law (London: Butterworths, 1980).
26
POST-MODERN TURKISH SOCIO-LEGAL REALITY
law’s sovereignty is not absolute and legal pluralism is a fact. The individual is
subject to different, sometimes conflicting laws.5 The challenge of unofficial
Muslim laws and legal pluralism to Turkish legal modernity is one of the
remarkable examples of this reality.
Turkey is a unique experience in the whole Muslim world, as a country that
has completely secularized its legal system.6 Laicism has been perceived as an
alternative religion in Turkey. The secularization movement in modern Turkey
followed a jacobinist and militant course. The Kemalist elite has conceived
religion as a threat to their modernist movement and revolutions, passionately
arguing that religions should stay in consciences and places of worship and
should not have any role in the public sphere.
The Kemalist elite in the country thought that cultural and economic change
could be imposed from above through the force of law. The abolition of the
sharia courts as the final secularization of the court system was accomplished
in 1924, with the subsequent unification of the court system under the jurisdic-
tion of the Ministry of Justice and the transplantation of distinctly secular codes.
Radical reforms were introduced in family law matters. The law of Islam was
abolished for matters of personal status in 1924. It was replaced by a civil code
taken from Swiss models. The adoption of the Swiss Civil Code and Swiss Code
of Obligations in 1926 represents a profound attempt of change in the social life
of Turkey. With this law, Islam was completely disregarded. Citizens could be
Muslims in their private lives, yet they could not claim any room for Islam in
the public arena. The Civil Code is applied in all parts of Turkey and all Turkish
citizens and residents are subject to it. Although the State in Turkey has tried to
make religion a private belief not affecting the public sphere with its adamant
secularization ideology, it is now evident that the place and influence of Islam
in Turkish social life have not changed a great deal.
5
Vanderlinden calls this individual ‘sujet de droit’. To him, two major arguments should be borne in mind
pertaining to legal pluralism: on the one hand, the necessity, for legal pluralism to exist, of more than a single
legal order meeting at the level of a ‘sujet de droits’; on the other hand, the non-existence of pluralism when
considered from the point of view of a specific legal system and not from the standpoint of the individual. Jacques
Vanderlinden, ‘Return To Legal Pluralism: Twenty Years Later’, Journal of Legal Pluralism, 28 (1989), p. 157.
6
Berkes’ work beautifully describes the history of secularization of Turkey in detail. Niyazi Berkes, The
Development of Secularizm in Turkey (Montreal: McGill University Press, 1964). A more analytical and less biased
account could be found in the work of Serif Mardin who wrote extensively on Turkish modernization, secularism
and the role of Islam in society, see in detail Serif Mardin, Religion as Ideology (Ankara: Hacettepe University
Publications, 1969); Mardin, ‘Ideology and Religion in the Turkish Revolution’ International Journal of Middle
Eastern Studies, 2 (1971), pp. 197–211; Mardin, ‘Center-Periphery Relations: A Key to Turkish Politics’,
Daedalus, 102(1) (1973), pp. 169–190; Mardin ‘Religion and Secularism in Turkey’ in Ali Kazancigil and Ergun
Ozbudun (eds) Ataturk: Founder of a Modern State (London: Hurst and Co., 1981), pp. 191–219; Mardin, ‘Turkey:
Islam and Westernization’ in Carlo Caldorola (ed.) Religions and Societies: Asia and The Middle East (Berlin
et al: Mouton Publishers, 1982), pp. 171–198; Mardin, Religion And Social Change In Modern Turkey: The Case
of Bediuzzaman Said Nursi (Albany: State University of New York Press, 1989); Mardin, Türkiye’de Din ve Siyaset
(Istanbul: Iletisim, 1992). Another remarkable example of this academic calibre includes, Nilüfer Gole, Modern
Mahrem (Istanbul: Metis, 1991); Gole, ‘Secularism and Islamism in Turkey: The Making of Elites and
Counter-elites’, The Middle East Journal, 51(1) (1997), pp. 46–58; Gole (ed.) Islamin Kamusal Yuzleri (Istanbul:
Metis, 2000). In recent years, Hakan Yavuz has been following the tradition of Mardin and Gole who have
successfully kept a distance from the official ideology; see Hakan Yavuz, ‘Societal Search for a New Contract:
Fethullah Gülen, Virtue Party and the Kurds’, SAIS Review, 19(1) (winter/spring 1999); Yavuz, ‘Towards an
Islamic Liberalism?: The Nurcu Movement and Fethullah Gülen’, The Middle East Journal, 53(4) (1999), pp.
596–597; Yavuz, ‘The Assassination of Collective Memory: The Case of Turkey’, The Muslim World, 89(3–4)
(1999), p. 195; Yavuz, ‘Cleansing Islam from the Public Sphere’, Journal of International Affairs (Fall 2000).
Toprak’s seminal study is also a successful and detailed analytical account of the relationship between Islam and
secularism in Turkey. Binnaz Toprak, Islam and Political Development in Turkey (Leiden: E. J. Brill, 1981).
27
IHSAN YILMAZ
28
POST-MODERN TURKISH SOCIO-LEGAL REALITY
People in Turkey, after the reception and transplantation of the Swiss Civil
Code have had three alternatives: to avoid using the official legal system, to
follow the Turkish State law, or to use a combination of the requirements of the
Muslim law and Turkish law. Evidence has shown that they preferred the third
option. They have developed a new hybrid rule system that amalgamates the
rules of unofficial Muslim law and of the official Turkish law.
Even though this study only deals with family law issues, it must be
underscored that in Turkish society in other fields such as finance, banking,
economy, insurance, and in all sorts of spheres of life, Muslim law is referred
to and obeyed by many people despite the non-recognition of the State. Now, we
will shortly look at this phenomenon with regards to the issues of nikah
(marriage), polygamy and talaq (divorce).9
9
Detailed data can be found in Ihsan Yilmaz, Dynamic Legal Pluralism and the Reconstruction of Unofficial
Muslim Laws in England, Turkey and Pakistan (London: SOAS, 1999) and Yilmaz, ‘Legal Pluralism in Turkey:
Persistence of Muslim Laws’ International Journal of Turkish Studies, 7(1&2) (2001), pp. 110–124.
10
Article 174/4 of the Turkish Constitution.
11
Article 108 of the Civil Code and Article 237/3 of the Criminal Code.
12
For some cases which appeared before the court of Cassations, see Y.4.C.D. 06/06/1983 E 983/2664 K
983/3310; Y.4.C.D. 09.12.1986 E 986/9510 K 986/9813; Y.4.C.D 28.04.1992 E. 992/2504 K. 992/3125. Y.4.C.D.
14/03/1990 E. 990/916 K. 990/1435; Y.2.H.D. 04/06/1985 E. 985/5223 K. 985/5310.
13
Nermin Abadan-Unat (ed.) Women in the Developing World: The Evidence from Turkey, Denver, Co:
University of Denver, 1986), p. 172; Belkis Kumbetoglu, ‘Aile, Evlilik, Nikah: Farklilasan Kavramlar’, Toplum
ve Bilim, 73 (1997), p. 121: Aydin Zevkliler, Medeni Hukuk (Istanbul: Savas, 1995), p. 705.
14
Tugrul Ansay, ‘Family Law’, in Tugrul Ansay and Don Wallace Jr. (eds) Introduction to Turkish Law (The
Hague: Kluwer Law International, 1996), p. 113; Kumbetoglu, ibid., p. 121.
15
Y.2.H.D. 1366 E. 1984 28/3/1968.
16
Serim Timur, Türkiye’de Aile Yapisi (Ankara: Hacettepe University Publications, 1972), p. 92.
29
IHSAN YILMAZ
show that the importance of the religious marriage in the eyes of the people still
continues:17
Table 1. Percentage of married population by type of marriage
It is also clear from Table 1 that Turkish people have learnt to combine
official and unofficial marriages. Even at the village level, as can be seen in
Table 1, the ratio of performing both marriages is 87.38%. Religious only
marriages still occur in substantial numbers, opposing the wishes of the official
law. Research conducted by Hacettepe University in 1988 and 1993 also
confirms the above-mentioned official research.18 Even the State Institute of
Statistics acknowledges that social reality is not responding fully to the desires
of the secular law.19
Thus, in accordance with the unofficial Turkish Muslim law, Muslims will
marry twice to satisfy the competing demands of secular law and religious belief.
Polygamy
With regards to polygamy, there is an obvious conflict between classical Muslim
law in which a man is permitted to marry up to four wives at any one time and
the official law of Turkey. A marriage in which either party is already married
to someone else will automatically be null and void according to the official law.
In other words, the second marriage is absolutely void, or void ab initio.20
The parties knowingly contracting such a marriage are considered as commit-
ted a criminal offence under Article 237/5 of the Criminal Code. However,
polygamous marriages have in no sense been eradicated in Turkey. Social
acceptance of succeeding wives is gained by performing only nikah.21
Polygamy or more generally survival of the local law is not a rural phenom-
enon although most writers tend to see it as such. Even in big cities and
metropolitan areas, despite the smaller figures, dynamic Muslim legal pluralism
is a reality. Sometimes, it is easier to continue a polygamous life free from a
Gemeinschaft pressure in a crowded metropolitan city. A quick scan in newspa-
pers would show that polygamous marriages are not only confined to the rural
17
State Planning Organization (SPO), Türk Aile Arastirmasi (Ankara: DPT, 1992), p. 42, table 31.
18
Hacettepe Üniversitesi Nüfus Etüdleri Enstitüsü (HUNEE), Türkiye Nüfus ve Saglik Arastirmasi (Ankara:
Ministry of Health and HUNEE, 1993).
19
State Institute of Statistics Prime Ministry Republic of Turkey (SIS), Marriage Statistics (Ankara: SIS, 1997),
p. ix.
20
Articles 93 and 112/1, 114, 115. Y.H.G.K. 26/3/1986, E. 2/751-K. 287; Y.2.H.D. 27/2/1986, E. 1729- K.2054;
Y.2.H.D. 03/06/1990 194/2546.
21
Abadan-Unat, Women, p. 173; Kumbetoglu, ‘Aile’, p. 121; Adnan Guriz, ‘Sources of Turkish Law’, in Ansay
and Wallace Jr, Introduction, p. 4.
30
POST-MODERN TURKISH SOCIO-LEGAL REALITY
and eastern parts of Turkey. There are some politicians, businessmen, singers,
actors, and members of parliaments and even ministers of the cabinet who are
known as polygamists, despite what the legal system says.
In early the 1980s, Sahinkaya, in Eastern Anatolia, found the rate of polygamy
to be about 4.4%.22 According to another research, the polygamy rate all over
Turkey is about 2%.23 In the late 1990s, the number of males who marry
polygamously and defend that state of affair in public has been steadily
increasing.24
As Turkish society has generally been a monogamous society, the ratio of
polygamous marriages has always been minimal. According to recent research,
in contrast to legendary stories about the harems in the Ottoman State, already
in 1885, the proportion of polygamous marriages in Istanbul was only 2.51%. In
1907, the figure was 2.16%. Moreover, most of the polygamous marriages have
been bigamous.25
The prohibition of polygamy was a radical step in the history of Turkey. Yet,
as one can easily conclude, this was not a great revolution or a big change, since
the society was anyway more or less monogamous. Polygamous marriages, as
stressed earlier, were already minimal. This minimal ratio legitimized by the
unofficial Turkish Muslim law has continued to exist in spite of all legal actions
against it.
Divorce Talaq
The divorce rate in Turkey has been relatively low.27 Thus, the case of talaq has
not been a big issue in terms of numbers. People in Turkey generally react
negatively to the idea of divorce. It is conceived as an unpleasant experience.
Even though in Muslim law divorce can be obtained in a number of extra-
judicial ways like talaq, in secular Turkish law there is solely one way of
divorce, which is through a decree granted by a court of civil jurisdiction on the
ground that the marriage has irretrievably broken down.
However, since marriages are religious, divorces are also made by talaq to
terminate the religious marriage, the nikah.28 Husbands still divorce their wives
with talaq and devout Muslim wives have to agree to the official divorce. In
short, getting married twice, the Turkish people get divorced twice as well, both
officially and unofficially.
22
Rezan Sahinkaya, Diyarbakir Ili Merkez Köylerinde Aile Strüktürü (Ankara: Ankara Üniversitesi, Ziraat
Fakültesi Yayinlari, 1983), p. 50.
23
Nuran Elmaci, ‘Polygamy: Çok-esli Evlilikler’, in Necla Arat (ed.) Türkiye’de Kadin Olmak (Istanbul: Say,
1994), p. 84.
24
Kumbetoglu, ‘Aile’, pp. 121, 127.
25
Alan Duben and Cem Behar, Istanbul Haneleri: Evlilik, Aile ve Doǒurganlik, 1880–1940 (Istanbul: IlHetisim,
1996), p. 162; Duben and Behar, Istanbul Households: Marriage, Family And Fertility, 1880–1940 (Cambridge:
Cambridge University Press, 1991).
26
The most detailed research on divorce in Turkey is Zwahlen’s study which surveys the issue from ancient Turks
to modern Turkish society, Mary Zwahlen, Le Divorce en Turquie: Contribution à l’étude de la Réception du
Code Civil Suisse (Genéva: Librarie Droz, 1981). Another detailed study on Turkish family law is H. P. Williams,
The Role of Adjudicatory Law in Divorce Proceedings in Turkey (Tufts: Tufts, 1982).
27
N. Serpil Altuntek, Van Yöresinde Akraba Evliligi (Ankara: Kültür Bakanligi Yayinlari, 1993), p. 77.
31
IHSAN YILMAZ
Public Opinion
In the media, it is usual to come across news about a celebrity who married with
only nikah, and in the news one can find hardly any negative comment or even
a hint about the marriage being religious and unofficial.29 Although many
children are perceived as illegitimate by the legal system they are not illegitimate
in the eyes of the community as the religious ceremony is still regarded as valid
in itself. Even legalizing sole nikah as a valid marriage was an election promise
of the Welfare Party.30 In the columns of the scholars who answer questions of
people regarding religion and society, these issues are discussed freely as if these
are not ‘illegal’ in the law.31
Regarding polygamy, several studies have shown that polygamy remains
socially acceptable in certain situations.32 Social acceptance of succeeding wives
is gained by performing only ‘imam nikahi’.33 Moreover, successful polygamy
can be a source of prestige.34 In public, the number of males who marry
28
The notion of legal postulates was missing in the earlier formulations of legal pluralism. Yet legal postulates
are the main actors in the interaction processes between different types of laws in the socio-legal sphere. Since
law is a cultural construct, these socio-cultural parameters fill the vacuum in the socio-legal sphere and govern
the complex relations between individual, community, informal and formal institutions. Put it shortly, legal
postulates determine the nature of interaction processes of legal pluralism. A legal postulate is a value principle
or value system which is specifically connected with a particular official or unofficial law, which acts to find, justify
and orient the latter, thereby determining the relationship between unofficial and official law Masaji Chiba (ed.),
Asian Indigenous Law in Interaction with Received Law (London and New York: Kegan Paul International, 1986),
p. 6. Stated summarily, according to Chiba, official law is the legal system sanctioned by the legitimate authority
of a country. Unofficial law is the legal system not officially sanctioned by any legitimate authority, but sanctioned
in practice by the general consensus of a certain group of people, whether within or beyond the bounds of a country
(transnational), Chiba, ibid. The effectiveness of the official law is dependent upon the unofficial law of the country
concerned. Chiba suggests that a legal postulate is ‘a value principle or system which specifically connected with
and worked to justify a particular official or unofficial law’, Chiba, ‘Legal Pluralism in Sri Lankan Society: Toward
a General Theory of Non-Western Law’, Journal of Legal Pluralism, 33 (1993), p. 203. Legal ‘postulates are found
in the form of firmly established religious principles, such as Shariah among Muslims, Dharma among Hindus’
Chiba ‘The Identity Postulate of Indigenous Law, and its Function in Legal Transplantation’ in Peter Sack and
Elizabeth Minchin (eds) Legal Pluralism. Proceedings of the Canberra Law Workshop VII (Canberra: Research
School of Social Sciences, Australian National University, 1986), p. 42; see alo Chiba Legal Pluralism: Toward
a General Theory Through Japanese Legal Culture (Tokyo: Tokai University Press, 1989).
29
See for an example, Milliyet, 6 March 1998, p. 3.
30
Yeni Yuzyil, 7 December 1996, p. 8.
31
It is so common that one can find many examples for this, see for instance, Zaman, 11 April 1998, p. 11.
32
Nuran Elmaci, ‘Polygamy: Çok-esli Evlilikler’, in Necla Arat (ed.) Türkiye’de Kadin Olmak (Istanbul: Say,
1994), pp. 79–123.
33
Fatma Mansur Cosar, ‘Women in Turkish Society’ in Lois Beck and Nikki Keddie (eds) Women in the Muslim
World (Cambridge, MA and London: Harvard University Press, 1978), pp. 124–140.
34
Paul Stirling, Turkish Village (London: Weidenfeld and Nicolson, 1965), p. 197; see also on this, N. Serpil
Altuntek, Van Yöresinde Akraba Evliligi (Ankara: Kültür Bakanligi Yayinlari, 1993).
32
POST-MODERN TURKISH SOCIO-LEGAL REALITY
polygamously and defend that state of affair has been steadily increasing.35 In
that context, one can see some people who polygamously married, in the urban
areas as well. For instance, there are some politicians, businessmen, singers,
actors, and members of parliaments and even ministers of the cabinet who are
known as polygamists.36 From time to time, it has become normal to read news
with this content without any condemnation or negative comment in any of the
national dailies. In one case, a former minister of the cabinet who was also the
chairman of a very popular football club, was freely talking about his second
wife in an interview.37
In a court case, the second wife of a polygamist businessman with nikah only
claimed in the court that after her husband died he left only three companies to
her, 23 to the first wife, but she claimed that that was injustice and she deserved
much more, applying for the annulment of the contract left by the husband
regarding inheritance. This case was reported almost in all newspapers without
any negative comment on the polygamy issue.38
In a recent case, a minister of the cabinet, who was a member of the then
ruling Welfare Party, became the centre of attention in a clash on polygamy
between European politicians and the Turkish politicians with regard to the
human rights in Turkey.39 News about this incident both gives an idea about and
summarizes the issues of polygamy and nikah in Turkey from an outsider’s
view. On 17 April 1997 Christopher de Bellaigue of The Independent reported
that:
… How, Ms Roth wanted to know, could Ms Ciller style herself the champion of Turkish
women, and continue to sit in cabinet alongside a minister who was a bigamist? …—a
prominent member of Turkey’s ruling Welfare party—has two wives … By marrying
twice—the first time with the sanction of the state, the second with that of an imam, or
Muslim priest—Mr … was breaking Turkish law, although his parliamentary immunity
protects him from prosecution. Polygamy was banned by Kemal Atatürk, modern
Turkey’s founding father, along with other Islamic practices considered too retrogressive
for a modern republic, but if you ask Turks how many polygamists there are inside
Turkey’s increasingly Islamic-hued parliament, you might get a cryptic look. For
understandable reasons, the Turkish press has preferred not to ‘out’ political polygamists,
for which—like the rest of Turkey—no official figures exist. The practice is more
common in the depressed south-east, which was largely left to its own devices while the
rest of Turkey embarked on ambitious development. Children from additional mar-
riages—Islam sanctions four—are usually registered as offsprings of the first wife. It is
here, rather than at one errant parliamentarian, that many modern-minded Turks think Ms
Roth should direct her attention … a Welfare colleague suggested yesterday that the
minister’s bigamy should be treated with the discretion extended to extra-marital
peccadilloes of the late Francois Mitterand.40
Officials
State officials, most of the time, being aware of the socio-legal reality that
35
Kumbetoglu, ‘Aile’, pp. 121, 127.
36
See for an example, Milliyet, 6 March 1998, p. 3.
37
Hurriyet, 7 November 1997, p. 27.
38
See for instance Hurriyet, 20 March 1998, p. 43.
39
The Independent, 17 April 1997, p. 14.
40
The Independent, 17 April 1997, p. 14.
33
IHSAN YILMAZ
Amnesty Laws
The State law needed to come to terms with the socio-legal reality and provided
for ad hoc legislation.43
As we have seen, although illegal, there are still some marriages performed by
the imams without the prior celebration. This state of marital affairs has given
rise to long-standing problems of couples who are not legally married, but regard
themselves, and are regarded in their social sphere, as married, and their children
who are illegitimate under the Civil Code.44 These illegitimate children face
many problems during their lives.45
The response to the great increase in illegitimacy as defined in the law has
seen the passing of a series of enactments to make legitimization extremely
simple.46 Thus, ‘amnesty laws are almost periodically enacted which allow the
registration of “consensual marriages”, if a child has been born out of such a
relation and if no marriage impediment between the parties exists’.47 The most
recent of these laws is dated 8 May 1991 and was valid for 5 years.48 New draft
law legislation on this matter is at the legislative stage at the Grand National
Assembly.49
Whilst the primary concern in Western societies has been to improve the legal
status of the illegitimate child, in Turkey, the legislator has provided for the
legitimization not only of the child, but also of the extra-marital union from
which the child has been born.50
41
See for a recent case, Hurriyet, 9 March 1997.
42
Hurriyet, 14 November 1997, p. 11.
43
See already K. Lipstein, ‘The Reception of Western Law in Turkey’, Annales de la Droit d’Istanbul (Istanbul:
Fakülteler Matbaasi, 1956), p. 19.
44
Hicri Fisek ‘Introduction’, in Türköz Erder (ed.) Family in Turkish Society: Sociological and Legal Studies
(Ankara: Turkish Social Science Association, 1985), p. 289.
45
Kumbetoglu, ‘Aile’, p. 121.
46
M. B. Hooker, Legal Pluralism (Oxford: Clarendon Press, 1975), p. 367; Fisek, ‘Introduction’, p. 290; Ansay,
‘Family law’, p. 119. Between 1933 and 1965, benefiting from five such bills, 2,739,379 unions were registered
as marriages and 10,006,452 illegitimate children were legitimized. Fisek, ibid., p. 292.
47
Ansay, ibid., p. 113.
48
Law no. 3716, promulgated on 16 May 1991. Previous laws nos 2330, 4727, 5524, 6652, 1826, and 2526.
49
Hurriyet, 29 November 1999.
50
Fisek, ‘Introduction’, p. 291. This does not apply to polygamous marriages. It is only for unmarried persons.
34
POST-MODERN TURKISH SOCIO-LEGAL REALITY
51
21.5.1981, No. 29/22.
52
Y.2.H.D., 1.3.1983, S 1627/18–25.
53
Hilmar Kruger, ‘Aile Hukuku Sorunlari Osmanli Islam Gelenegi’, translated by Necla Giritlioglu, in Behlül
Dikeçligil and Ahmet Cigdem (eds) Aile Yazilari (Ankara: T. C. B. Aile Arastirma Kurumu Baskanligi, 1991),
p. 209.
54
Y.2.H.D. 06/06/1983 E 983/2664 K 983/3310; Y.2.H.D. 04/06/1985 E. 985/5223 K. 985/5310; Y.4.C.D.
28.04.1992 E. 992/2504 K. 992/3125.
55
See for such an example, Y.2 H.D. 28/4/1986, E. 4269-K.4463.
56
Y.2.H.D. 28.12.1987, E.11288-K. 10889.
57
Y.2.H.D. 24/9/1985, E. 8499.-K.7437. For a similar case, see Y.2.H.D. 7.5.1985, E.4496-K.4385.
35
IHSAN YILMAZ
polygamy. Some extreme-leftist writers have thus accused the judges in Turkey
of being tolerant to ‘fundamentalist’ movements.58
In some cases, courts take into account the second wives who were only
married with a religious marriage. In such a recent case, the judge held that
second wife who was married only by nikah should be paid some compensation
from the insurance institution because of the death of her unofficial husband at
work.59
In another court case concerning polygamy which we noted earlier as well, the
second wife of a polygamist businessman with nikah only, told the court that
after her husband died he left only three companies to her, but 23 to his first
wife, and claimed that this was an injustice and she deserved much more,
applying for the annulment of the will of inheritance left by the husband.
Regarding this case, nothing has been reported as to whether the woman was
told or questioned about the nikah and polygamy issue. The judges dealt with
this as if it was a normal marriage and inheritance case.60
Here, we see again the legal postulates in operation. Although unofficial (and
illegal), the nikah and polygamy were taken into consideration by the judges,
since the legal postulates of society include these practices. These decisions of
the judges in the lower courts show that the legal postulates of the society
influence judges to be sympathetic to demands of local unofficial laws. Since the
legal postulates, in this case interwoven classical and local Muslim laws and
morality, permit and condone an unofficial marriage, a judge may not consider
it as a serious criminal offence or intrusion of the rights of the minor, although
a Western judge would possibly react differently.
Thus, it might be said that, in the Turkish context, due to the legal postulates, jud-
ges are tolerant, understanding, patient and sympathetic toward the local people.61
36
POST-MODERN TURKISH SOCIO-LEGAL REALITY
When there is not any legal framework attached to these marriages and
Gemeinschaft pressure is not an issue at stake, especially in urban areas, women
suffer, as is the case most of the time. The cases of abuse of nikah, limping
marriages and hidden nikah most clearly show this. It must be noted that the
phenomena we discuss later are urban and definitely not rural.
Abuse of Nikah
As we noted earlier, in the course of the last decades, changes in marriage
patterns and realization of the legal security of civil marriage have led to an
increase in the number of civil marriages. Even in rural areas, people have
started to register their marriages whilst still giving essential importance to
nikah. Thus, according to Turkish Muslim law, Muslims will marry twice to
satisfy the demands of secular law and religious belief. This shows partial
success of the official law. People have realized to a great extent that marrying
only religiously with nikah has disadvantages, whilst having married secularly in
addition to nikah has substantial benefits especially for the women concerned.
However, although in a minority, there is still a figure of 2.2 to 22.4%,
depending on the region, of people who only preferred nikah when getting
married.63 Religious only marriages still occur in substantial numbers, opposing
the wishes and claims of the official law. In a kind of marriage arrangement very
specific to Turkey, people marry religiously with nikah and count this as an
‘engagement’, and if they agree in all aspects during engagement they register
their marriages and become a ‘real’ couple.64
The reason for this practice can be explained by reference to the moderniza-
tion of Turkey. Most marriages are still arranged in the country. In some
arranged matching attempts, in the Muslim law, girl and boy are allowed to meet
and talk at the presence of a third person. If they like each other, then, they get
engaged. However, in this period they need to know each other more deeply. To
legitimize their meetings without attendance of a third person, parents want them
to marry religiously in order not to commit a sin.65 It is obvious that with this
practice the official marriage is regarded the ‘decisive marriage’.
However, this application brings many problems in some cases. Young
couples sometimes see the nikah sufficient for sexual intercourse since they are
married under Muslim law.66 Yet, if a problem arises and the engagement ends,
then the woman faces many problems, which are very similar to the ones in the
issues of limping marriages and hidden nikah which we will discuss later.67
63
SPO, Turk, p. 42; Nurettin Yildirak, Köy Kadinlarinin Sosyo-ekonomik ve Kültürel Konumlari (Istanbul:
Friedrich Ebert Vakfi, 1992).
64
Kadin ve Aile, July 1987: pp. 40–45; Yeni Bizim Aile, February 1994, p. 20.
65
Ibid.: Yusuf Kerimoglu, Fikhi Meseleler, vol. II (Istanbul: Olçu, 1989), pp. 23–26; Kadin ve Aile.
66
Ibid., p. 41.
67
Such a case is elaborated by Kerimoglu according to classical Muslim law. In this case, after the engagement
ended, the then prospective couple decided not to marry. However, they got married by nikah, and the man has
not given her talaq for 5 years to the effect of creating a limping marriage. He demands some money to give the
young woman her talaq and is already married to another woman. Kerimoglu, Fikhi Meseleler, pp. 23–26.
37
IHSAN YILMAZ
Limping Marriages
A limping marriage is a marriage recognized in some jurisdictions as having
been validly dissolved, but in other jurisdiction(s) as still subsisting. A husband
is enabled to prevent his ‘ex-wife’ from remarrying in accordance with her
religious belief and the dictates of her conscience. In both Islam and Judaism,
in order to remarry, a woman must obtain a religious decree of divorce. Under
the Jewish law, the wife must obtain a get, in Islamic law a religious divorce
must be accomplished in one of the ways of talaq, khul or mubarat. Religious
divorce is still very important for the Muslim mind and for the community.68
Even though talaq does not have any legal validity in the Turkish law, Muslim
husbands in Turkey can and do still ‘divorce’ their wives by talaq.
If the woman is not religiously divorced from her husband, it does not matter
that she is divorced under the civil law, in the eyes of the community her
remarriage will be regarded as adulterous and any possible offspring will be
illegitimate since it is not allowed under the religious law. So, in reality, until
the religious divorce is obtained, the civil divorce remains ineffective because
one party is unable to remarry.
Sometimes, capricious husbands divorce their wives officially but do not want
to pronounce talaq or deliver the get to prevent the women remarrying. The
blackmailing by some unscrupulous husbands has led to some cases; knowing
the value placed on a religious divorce by their wives, such men have used their
power to grant or withhold divorce to negotiate favourable settlements on the
issue of finance, property or relating to children.
Badawi highlights the problem of limping marriages among Muslims in
Britain:69
A common problem was that you get a woman seeking a divorce in the courts and
obtaining it. She becomes, therefore eligible for re-marriage in accordance with the civil
law, but her husband has not given her a talaq which is the prerogative of the husband
within an ordinary contract of marriage so that the woman becomes unmarried according
to the civil law but still married according to the Sharia law. The man could remarry
according to the civil law and according to Sharia law as well, since it is open to him
to have a polygamous marriage.70
The issue of limping marriages is a matter of much concern in Turkey as well.
Since marriages are religious, divorces are also made by talaq to terminate the
religious marriage, the nikah. The ignorant position of the official law leads to
limping marriages. Thus, conflict resolution is attempted by parents, families,
relatives or religious community leaders who usually have a say in people’s lives
68
See also Alan Reed, ‘Extra-judicial Divorces since Berkovits’, Family Law, 26 (1996), pp. 100–103; Bernard
Berkovits, ‘Get and Talaq in English Law: Reflections on Law and Policy’, in Chibli Mallat and Jane Connors
(eds) Islamic Family Law (London, Dordrecht and Boston, MA: Graham & Trotman, 1990), pp. 119–146; Rhona
Schuz, ‘Divorce and Ethnic Minorities’, in Michael Freeman (ed.) Divorce: Where Next? (Aldershot: Dartmouth,
1996), pp. 135, 150; Carolyn Hamilton, Family, Law and Religion (London: Sweet & Maxwell, 1995), pp. 118–20;
Zaki Badawi ‘Muslim Justice in a Secular State’, in Michael King (ed.) God’s Law versus State Law: The
Construction of Islamic Identity in Western Europe (London: Grey Seal, 1995), p. 77.
69
Badawi, ibid., p. 77.
70
On 11 April 1986, The Guardian reported that there were more than 1000 Muslims limping marriage cases,
in Britain. Badawi reports that in Amsterdam there were 750 Moroccan women in a position between marriage
and divorce, Badawi, ‘Muslim Justice’, p. 80. The same problem also occurs among Jews. See in detail Berkovits,
‘Get and Talaq’, pp. 138–139.
38
POST-MODERN TURKISH SOCIO-LEGAL REALITY
since people feel deep respect for them. Women are the most negatively affected
part of the society. As a result of the legal system’s approach to the reality of
legal pluralism, limping marriages have been created to the benefit of nobody at
all.
39
IHSAN YILMAZ
another prominent scholar, Ali Riza Demircan, this kind of nikah is a social
catastrophe and most probably is illegitimate according to Muslim law since it
is hidden and this situation is in conflict with the idea and purpose of the
marriage institution in Islam.78
This practice, not surprisingly, has caused social problems for women. As a
result of the practice of the ‘hidden nikah,’ columns of Islamic scholars who
reply to the questions of individuals in the newspapers and in some Islamic
periodicals are frequently occupied by ‘poor’ girls’ raising questions or com-
plaints after they have been left by the unofficial young ‘husband’ with or
without any excuse.79 Since they are not officially married, she cannot claim any
legal rights, in the absence of the Muslim law’s legal weight, the man even may
possibly not fulfil his Islamic duties.80 He is not legally tied down to the
obligations of the marriage. The woman loses her virginity.81 A second marriage
for her will be very difficult and prospective husbands will perceive her as a kind
of second-class girl when her situation is compared with virgins. More dramat-
ically, in some cases, the woman becomes pregnant. Since they are not officially
married and entered sexual intercourse secretly, they employ abortion.82 Conse-
quently, depressions, psychological problems and even suicides, although rare,
may come into existence.83
Conclusion
To attempt to change the legal rules concerning family matters, one of the most
daring experiments for the modernizing elite in Muslim societies, was perceived
as necessary in Turkey after the collapse of the Ottoman State.
Although the Turkish State tried to abolish Muslim law by transplanting new
secular and uniform laws, the result has been that Turkish Muslims have not
abandoned their local Muslim family laws. The socio-legal reality of Muslim
legal pluralism stemming from resistance of local Muslim law has, for many
years, been seen as a rural phenomenon in Turkey. However, it is becoming
clear that Muslim legal pluralism, especially in family matters, is a reality of
urban areas too. The State and the elite expected that by means of education,
members of society would learn the rules of the official legal system, and they
believed that with the increase of urbanization, which is considered to be the
same as modernization and ‘development’, people would give up their local
customs and religious laws and would follow only the official law. However, the
Turkish people have reconstructed their unofficial religious laws in spite of all
the claims of the secular legal system, particularly in the issues of marriage,
manifestly reiterating the fact that State law has limits to shape society, a fact
even State is and has been aware of. As recent research has shown, even the
revolutionist Kemalist elite of 1920s was under the influence of Muslim legal
postulates:
78
Yörünge, p. 9.
79
Faruk Beser, Hanimlara Ilmihal (Istanbul: Nun, 1997), p. 302.
80
Ibid.; Beser, Fikih Penceresinden Sosyal Hayatimiz, vol. I (Istanbul: Nun, 1993), p. 161; See in detail Kadin
ve Aile, p. 41; Yeni Bizim Aile, p. 20.
81
Virginity is regarded as very important in the Turkish society, see Yörünge, p. 10; even the State is sensitive
about it, see Sabah, 17 October 1997.
82
Kudin ve Aile, p. 42.
83
Ibid.; Yörünge, pp. 5, 9.
40
POST-MODERN TURKISH SOCIO-LEGAL REALITY
It seems that, based upon the text of the Turkish civil Code itself, based upon the
irrefutable fact that changes were made to its Swiss model, based upon the equally
irrefutable fact that these changes were made deliberately, and considering that, barring
some sort of massive and overwhelming coincidence of thought, these changes were
made with previous Islamic ideas as their sources.84
It is now evident that dynamic legal pluralism is an everyday reality of Turkey.
Turkish modernizers wanted to emancipate Turkish women from traditional ties
but now the non-recognition of the socio-legal reality and the State’s 1930s
fashion Jacobin ideology make adverse effects. Dynamic legal pluralism is an
inevitable socio-legal reality not a figment of the imagination and legal non-
recognition of this reality is not a viable option.
It is quite obvious that if the State wishes to protect women against discrim-
inatory practices, it is not possible to ignore dynamic legal pluralism. Otherwise,
other than being unable to protect the members of society, the State could also
possibly lose its official control over the socio-legal domain as a result of the
growth of unofficial legal alternatives. Last but not least, education (but not
indoctrination) must always be a priority, both for the State and Muslim
communities.
84
Ruth A. Miller, ‘The Ottoman and Islamic Substratum of Turkey’s Swiss Civil Code’, Oxford Journal of Islamic
Studies, 11(3) (2000), p. 361.
41