Yilmaz, I - BJMES Predicament

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British Journal of Middle Eastern Studies (2003),30(1), 2541

Non-recognition of Post-modern

Turkish Socio-legal Reality and thePredicament of Women

IHSAN YILMAZ*

ABSTRACT After the transplantation of the Swiss Civil Code, Turks have hadthree alternatives: avoidance reaction, to follow the secular state law or acombination of the requirements of Muslim law and secular law. This article

argues that they followed the third option by developing a new hybrid rulesystem that amalgamates the rules of unofficial Muslim law and of officialTurkish law. The consequences for women are not promising if the State doesnot change its melting pot mentality which does not take into account thereality of the plurality of cultures. Women suffer because of the States rigidstand regarding the black-letter law. It is not feasible to ignore dynamic legal

pluralism. Otherwise, other than being unable to protect women, the State couldlose its control over the socio-legal domain as a result of the growth of unofficiallegal alternatives.

Introduction

The enticement of instrumentalist usage of law for social engineering by theJacobin Kemalist elite was unavoidable. They espoused a legal modernistdiscourse thatthey believedhas 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, MahmutEsat Bozkurt, declared that what he desired was not reform but a revolution ofLaw.2 In the mid-1920s, Commercial Code, Penal Code and Civil Code weretransplanted from different Western European countries. After almost 80 years

of this revolution, when one looks at the issues from a black-letter point of viewand from an armchair perspective, this has been a tremendous success inbringing a completely clean legal sheet. Yet, we need to analyse the socio-legalsphere before jumping to ideological conclusions. As one scholar wrote quiterecently, How much the adoption of European laws affected society remains

* Law Department, School of Oriental and African Studies, University of London. E-mail: [email protected] 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 theTurkish case, the vision was Ataturks 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. 720, cited in Gulnihal Bozkurt, The Reception of Western European Law in Turkey (Fromthe Tanzimat to the Turkish Republic, 18391939), Der Islam, 75 (1998), p. 294.


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one of the most difficult questions for sociological and historical studies of thelaw One hesitates, therefore, to categorically state that the reception move-ment was beneficial or detrimental to Turkish society.3 Indeed, the socio-legalreality 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. Theconsequences for women are not promising. These vulnerable members ofsociety suffer because of the States rigid stand regarding the black-letter lawand its unending militantly positivist hope for a culturally homogeneous society.

The present study endeavours to analyse some consequences of the Turkishlegal modernization project vis-a-vis women in the post-transplantation socio-legal sphere in Turkey with a special emphasis to family law issues. This articleshortly discusses the issues of legal modernity and legal pluralism and then froma historical perspective it looks at the secularization of law in Turkey and itsofficial uniform secular law. Then, the socio-legal sphere is analysed. Finally,some negative consequences of the States non-recognition of the socio-legalreality that mostly affects the women is elaborated on.

Turkish Legal Modernity

With the advent of modern nation-state, the development of a uniform legalsystem within national boundaries became the ultimate goal in the modern era.Theoretical foundations of this centralist and uniformist approach have roots inlegal positivism that is a main theme of legal modernity. Positivist and centralistunderstandings of legal modernity allow no other forms of normative orderings

with a hope for State-centred homogeneity. In contrast to purported uniformityand expected assimilation of the legal system, the challenge of post-modernlegality is a fact and diversity of laws is a reality especially in todaysmulticultural societies.

Socio-legal studies have shown that claims of legal modernity do not workfully in practice and State law has limits.4 Social engineering through law is acontentious matter. In multicultural situations, there are alternative normativeorderings in society. Resistance to official law is always an issue at stakewhatever its degree is.

In all communities a number of modes of normative orderings co-exist with

the official. Local law, custom, ethnic minority laws and customs can be citedas some major factors that influence and impede the effectiveness of law inmodern societies. These factors are the sources of multiple interpretations,incoherence, multiple legal authorities, local interests and local concerns. Thesefactors may also affect the degree of respect for the official lawmaker, other thanbeing a source of justification for popular resistance.

In short, official laws are not always absolutely effective and they alonecannot deal with social problems as they have a limited capacity. There arelimits and resistance to legal modernity in the socio-legal sphere where State

3

Bozkurt. The Reception , p. 295.4 On the limits of law, Allotts work provides a comprehensive and detailed analysis. Antony Allott, The Limitsof Law (London: Butterworths, 1980).


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POST-MODERN TURKISH SOCIO-LEGAL REALITY

laws sovereignty is not absolute and legal pluralism is a fact. The individual issubject to different, sometimes conflicting laws.5 The challenge of unofficialMuslim laws and legal pluralism to Turkish legal modernity is one of theremarkable 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 analternative religion in Turkey. The secularization movement in modern Turkeyfollowed a jacobinist and militant course. The Kemalist elite has conceivedreligion as a threat to their modernist movement and revolutions, passionatelyarguing that religions should stay in consciences and places of worship andshould not have any role in the public sphere.

The Kemalist elite in the country thought that cultural and economic changecould be imposed from above through the force of law. The abolition of thesharia courts as the final secularization of the court system was accomplishedin 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 wasabolished for matters of personal status in 1924. It was replaced by a civil codetaken from Swiss models. The adoption of the Swiss Civil Code and Swiss Codeof Obligations in 1926 represents a profound attempt of change in the social lifeof Turkey. With this law, Islam was completely disregarded. Citizens could beMuslims in their private lives, yet they could not claim any room for Islam inthe public arena. The Civil Code is applied in all parts of Turkey and all Turkishcitizens and residents are subject to it. Although the State in Turkey has tried tomake religion a private belief not affecting the public sphere with its adamantsecularization 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 mindpertaining to legal pluralism: on the one hand, the necessity, for legal pluralism to exist, of more than a singlelegal order meeting at the level of a sujet de droits; on the other hand, the non-existence of pluralism whenconsidered from the point of view of a specific legal system and not from the standpoint of the individual. JacquesVanderlinden, 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 biasedaccount could be found in the work of Serif Mardin who wrote extensively on Turkish modernization, secularismand the role of Islam in society, see in detail Serif Mardin, Religion as Ideology (Ankara: Hacettepe UniversityPublications, 1969); Mardin, Ideology and Religion in the Turkish Revolution International Journal of Middle

Eastern Studies, 2 (1971), pp. 197211; Mardin, Center-Periphery Relations: A Key to Turkish Politics,Daedalus, 102(1) (1973), pp. 169190; Mardin Religion and Secularism in Turkey in Ali Kazancigil and ErgunOzbudun (eds)Ataturk: Founder of a Modern State (London: Hurst and Co., 1981), pp. 191219; Mardin, Turkey:Islam and Westernization in Carlo Caldorola (ed.) Religions and Societies: Asia and The Middle East (Berlinet al: Mouton Publishers, 1982), pp. 171198; Mardin, Religion And Social Change In Modern Turkey: The Caseof Bediuzzaman Said Nursi (Albany: State University of NewYork Press, 1989);Mardin, Turkiyede Din ve Siyaset(Istanbul: Iletisim, 1992). Another remarkable example of this academic calibre includes, Nilufer Gole, Modern

Mahrem (Istanbul: Metis, 1991); Gole, Secularism and Islamism in Turkey: The Making of Elites andCounter-elites, The Middle East Journal, 51(1) (1997), pp. 4658; Gole (ed.) Islamin Kamusal Yuzleri (Istanbul:Metis, 2000). In recent years, Hakan Yavuz has been following the tradition of Mardin and Gole who havesuccessfully kept a distance from the official ideology; see Hakan Yavuz, Societal Search for a New Contract:Fethullah Gulen, Virtue Party and the Kurds, SAIS Review, 19(1) (winter/spring 1999); Yavuz, Towards anIslamic Liberalism?: The Nurcu Movement and Fethullah Gulen, The Middle East Journal, 53(4) (1999), pp.596597; Yavuz, The Assassination of Collective Memory: The Case of Turkey, The Muslim World, 89(34)

(1999), p. 195; Yavuz, Cleansing Islam from the Public Sphere, Journal of International Affairs (Fall 2000).Topraks seminal study is also a successful and detailed analytical account of the relationship between Islam andsecularism in Turkey. Binnaz Toprak, Islam and Political Development in Turkey (Leiden: E. J. Brill, 1981).


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A number of fundamental differences between the secular civil law of Turkeyand the Muslim local law are observable. These differences include the secular-ization of the marriage ceremony. A legal marriage had to be registered with thecivil authorities and concluded in their presence. A religious ceremony was madeoptional and carried no legal weight. A religious marriage without official

registration was made a criminal offence. The adoption of the principle ofmonogamy meant that polygamy was under no circumstance allowed. It becamea criminal offence. The secularization of divorce proceedings was another keyreform. The new law gave both parties an equal right to sue for divorce. Talaqis not recognized. An official court can only grant divorce. As a natural result,these differences led to confusion in the lives of the people. They have beenfaced with a certain dilemma between the unrecognized Muslim law and theofficial but secular State law.7 This dilemma has paved the way for theemergence of Turkish post-modern legality.

Emergence of Turkish Post-modern Legality and the Reality of DynamicMuslim Legal Pluralism

The Kemalist ideology, which had national, secular and modern elements, couldnot fill the gap that Islam was supposed to have left. The State, through itssecular policies and programmes of Westernization, has threatened the valuesystem of the Muslim people in the country without providing, at the same time,a satisfactory and all-encompassing ideological framework that could have massappeal and could have replaced Islam.

However, unofficial local Islam survived despite all the attempts of the State.It has continued to manifest patterns of leadership and religious loyalty indepen-dent of the official system. Islam is still a pervasive factor in Turkish public.

As a direct result, in the legal field, too, Islam still continues to affect peopleslives. With the passage of time, the expectation that people would learn andfollow only the official lex loci by entirely abandoning the Muslim family lawturned out to be untrue. There are still conflicts between the official legal systemand the surviving unofficial local law.8

7 June Starr, Islam and the Struggle over State Law in Turkey in Daisy Hilse Dwyer (ed.) Law and Islam inthe Middle East (New York: Bergin & Garvey Publishers, 1990), pp. 7796; Starr, Law as Metaphor.8 Reasons of the survival of local Muslim law can only be understood if one takes into account the influence ofthe sharia on the Muslim individuals mind wherever s/he is. It is well known that the sharia is one of the mostcrucial sources of influence wherever a Muslim goes. In classical Islamic theory, law is the revealed will of God,a divinely ordained system preceding and not preceded by the Muslim state, controlling and not controlled byMuslimsociety. Muslimdefinition of jurisprudence is knowledgeof the practical rules of religion. Islam is a systemof State, society, law, thought, and arta civilization with religion as its unifying, and eventually dominatingfactor. In particular, family law issues have always been, to the Muslim mind, mental maps, cognitive frameworksand legal consciousness, even more closely associated with religion than other legal matters, and thereforecontrolled by Islamic law. Islam demands full allegiance from a person, once he has chosen freely to embraceit. All Muslim schools of law state that a bond unites Muslims wherever they may be. Thus, if the Muslim lawconflicts with the secular laws of nation-states, it is divine law that must prevail according to Muslim mentality.This general principle that Gods law must prevail appears in specific directives to Muslims not only in the Westbut also in their nation-states to contest, defend and protect themselves against rational and secular authority.Michael King, Introduction in Michael King (ed.) Gods Law versus State Law: The Construction of Islamic

Identity in Western Europe (London: Grey Seal, 1995), p. 4. As a result, many Muslims in Muslim and non-Muslimcountries have been concerned to relate themselves to the Muslim law rather than to such legislation of particularcountries, especially pertaining to the laws relating to marriage and divorce, and to inheritance and other matters

of property, see Ge Speelman, Muslim Minorities and Shariah in Europe in Tarek Mitri (ed.) Religion, Lawand Society: A ChristianMuslim Discussion (Geneva, Kampen: WCC Publications/Kok Pharos, 1995), p. 73;Jrgen S. Nielsen, Muslims in Western Europe (Edinburgh: Edinburgh University Press, 1987), p. 17.


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People in Turkey, after the reception and transplantation of the Swiss CivilCode have had three alternatives: to avoid using the official legal system, tofollow the Turkish State law, or to use a combination of the requirements of theMuslim law and Turkish law. Evidence has shown that they preferred the thirdoption. 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 referredto and obeyed by many people despite the non-recognition of the State. Now, wewill shortly look at this phenomenon with regards to the issues of nikah(marriage), polygamy and talaq (divorce).9

Solemnization of Marriage Nikah

Under the official law, only civil marriages performed by authorized marriageofficers are allowed and recognised.10 Only after the celebration of the civilmarriage is a nikah permitted. Contrary acts by imams are punishable offences.11

If a civil ceremony in a registry office is followed by a religious one, thereligious ceremony does not supersede or invalidate the civil ceremony and isnot registered as a marriage in any marriage register book. The men and womenwho perform a religious marriage ceremony without having made the legalmarriage contract are considered to be punishable.12

It is a well-known reality that many Turkish citizens still prefer the informalor consensual marriage, or nikah.13 Sometimes they marry with nikah withoutregistration, which is not recognized under the Civil Code. There are still some

marriages performed by the imams without the prior celebration.14In rural society, the religious ceremony is still regarded as valid in itself and

the Muslim community does not regard a civil marriage alone as valid. Some 70years after the transplantation of the Civil Code, the norms that consider a childborn only of non-religious (civil) wedlock a bastard are quite dominant, sincelegitimacy in the eyes of society still rests solely on the nikah.15

An earlier study found that 35.4% of all marriages in Turkey were civil,49.2% were mixed civil-religious (concluded in the presence of civil authoritiesand later, an imam), and 15.0% were only religious and hence carried noofficial legal weight.16 The State Planning Organizations data from the 1990s

9 Detailed data can be found in Ihsan Yilmaz, Dynamic Legal Pluralism and the Reconstruction of UnofficialMuslim 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. 110124.10 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 K983/3310; 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, Toplumve 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, Turkiyede Aile Yapisi (Ankara: Hacettepe University Publications, 1972), p. 92.


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show that the importance of the religious marriage in the eyes of the people stillcontinues:17

Table 1. Percentage of married population by type of marriage

Total (%) Rural Urban

Total 25,678,892 100.00 100.00 100.00Civil 2,455,418 9.56 5.11 13.59Religious 1,256,980 4.89 6.89 3.09Both 21,806,832 84.92 87.38 82.70None 38,525 0.15 0.18 0.13Unknown 121,137 0.47 0.44 0.50

It is also clear from Table 1 that Turkish people have learnt to combineofficial and unofficial marriages. Even at the village level, as can be seen inTable 1, the ratio of performing both marriages is 87.38%. Religious onlymarriages still occur in substantial numbers, opposing the wishes of the officiallaw. Research conducted by Hacettepe University in 1988 and 1993 alsoconfirms the above-mentioned official research.18 Even the State Institute ofStatistics acknowledges that social reality is not responding fully to the desiresof the secular law.19

Thus, in accordance with the unofficial Turkish Muslim law, Muslims willmarry twice to satisfy the competing demands of secular law and religious belief.

Polygamy

With regards to polygamy, there is an obvious conflict between classical Muslimlaw in which a man is permitted to marry up to four wives at any one time andthe official law of Turkey. A marriage in which either party is already marriedto 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. Socialacceptance 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 andmetropolitan areas, despite the smaller figures, dynamic Muslim legal pluralismis a reality. Sometimes, it is easier to continue a polygamous life free from aGemeinschaft 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), Turk Aile Arastirmasi (Ankara: DPT, 1992), p. 42, table 31.18 Hacettepe Universitesi Nufus Etudleri Enstitusu (HUNEE), Turkiye Nufus 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 Ansayand Wallace Jr, Introduction, p. 4.


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and eastern parts of Turkey. There are some politicians, businessmen, singers,actors, and members of parliaments and even ministers of the cabinet who areknown as polygamists, despite what the legal system says.

In early the 1980s, Sahinkaya, in Eastern Anatolia, found the rate of polygamyto 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 marrypolygamously and defend that state of affair in public has been steadilyincreasing.24

As Turkish society has generally been a monogamous society, the ratio ofpolygamous marriages has always been minimal. According to recent research,in contrast to legendary stories about the harems in the Ottoman State, alreadyin 1885, the proportion of polygamous marriages in Istanbul was only 2.51%. In1907, the figure was 2.16%. Moreover, most of the polygamous marriages havebeen 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, sincethe society was anyway more or less monogamous. Polygamous marriages, asstressed earlier, were already minimal. This minimal ratio legitimized by theunofficial Turkish Muslim law has continued to exist in spite of all legal actionsagainst it.

Divorce Talaq

The divorce rate in Turkey has been relatively low.27 Thus, the case of talaq hasnot been a big issue in terms of numbers. People in Turkey generally reactnegatively 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 ofdivorce, which is through a decree granted by a court of civil jurisdiction on theground that the marriage has irretrievably broken down.

However, since marriages are religious, divorces are also made by talaq toterminate the religious marriage, the nikah.28 Husbands still divorce their wiveswith talaq and devout Muslim wives have to agree to the official divorce. Inshort, getting married twice, the Turkish people get divorced twice as well, bothofficially and unofficially.

22 Rezan Sahinkaya, Diyarbakir Ili Merkez Koylerinde Aile Strukturu (Ankara: Ankara Universitesi, ZiraatFakultesi Yayinlari, 1983), p. 50.23

Nuran Elmaci, Polygamy: Cok-esli Evlilikler, in Necla Arat (ed.) Turkiyede Kadin Olmak (Istanbul: Say,1994), p. 84.24 Kumbetoglu, Aile, pp. 121, 127.25 Alan Duben and Cem Behar, Istanbul Haneleri: Evlilik, Aile ve Doourganlik, 18801940 (Istanbul: IlHetisim,1996), p. 162; Duben and Behar, Istanbul Households: Marriage, Family And Fertility, 18801940 (Cambridge:Cambridge University Press, 1991).26 The most detailed research on divorce in Turkey is Zwahlens study which surveys the issue from ancient Turksto modern Turkish society, Mary Zwahlen, Le Divorce en Turquie: Contribution a letude de la Reception du

Code Civil Suisse (Geneva: 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 Yoresinde Akraba Evliligi (Ankara: Kultur Bakanligi Yayinlari, 1993), p. 77.


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Awareness of the Socio-Legal Reality

The socio-legal reality in Turkey has been noted not only by the general publicand scholarship but also by the State officials. Yet this does not mean that theState has recognized this reality. However, it has not been very harsh on theso-called law-breakers, thanks to the Muslim legal postulates.28

One can detect Muslim legal postulates regarding marriage issues from thesurvey research on public opinion regarding relevant phenomena, acts ofofficials, and responses of legislation to the socio-legal reality and decisions ofthe judges in the lower courts.

Public Opinion

In the media, it is usual to come across news about a celebrity who married withonly nikah, and in the news one can find hardly any negative comment or evena hint about the marriage being religious and unofficial.29 Although many

children are perceived as illegitimate by the legal system they are not illegitimatein the eyes of the community as the religious ceremony is still regarded as validin itself. Even legalizing sole nikah as a valid marriage was an election promiseof the Welfare Party.30 In the columns of the scholars who answer questions ofpeople regarding religion and society, these issues are discussed freely as if theseare not illegal in the law.31

Regarding polygamy, several studies have shown that polygamy remainssocially acceptable in certain situations.32 Social acceptance of succeeding wivesis gained by performing only imam nikahi.33 Moreover, successful polygamycan 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 postulatesare the main actors in the interaction processes between different types of laws in the socio-legal sphere. Sincelaw is a cultural construct, these socio-cultural parameters fill the vacuum in the socio-legal sphere and governthe complex relations between individual, community, informal and formal institutions. Put it shortly, legalpostulates determine the nature of interaction processes of legal pluralism. A legal postulate is a value principleor value systemwhich is specifically connected with a particular official or unofficial law, which acts to find, justifyand 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 authorityof a country. Unofficial law is the legal system not officially sanctioned by any legitimate authority, but sanctionedin 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 lawis dependent upon the unofficial lawof the countryconcerned. Chiba suggests that a legal postulate is a value principle or system which specifically connected withand worked to justify a particular official or unofficial law, Chiba, Legal Pluralismin Sri Lankan Society: Towarda General Theory of Non-Western Law,Journal of Legal Pluralism, 33 (1993), p. 203. Legal postulates are foundin the form of firmly established religious principles, such as Shariah among Muslims, Dharma among HindusChiba The Identity Postulate of Indigenous Law, and its Function in Legal Transplantation in Peter Sack andElizabeth Minchin (eds) Legal Pluralism. Proceedings of the Canberra Law Workshop VII (Canberra: ResearchSchool of Social Sciences, Australian National University, 1986), p. 42; see alo Chiba Legal Pluralism: Towarda 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: Cok-esli Evlilikler, in Necla Arat (ed.) Turkiyede Kadin Olmak (Istanbul: Say,1994), pp. 79123.33 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. 124140.34 Paul Stirling, Turkish Village (London: Weidenfeld and Nicolson, 1965), p. 197; see also on this, N. SerpilAltuntek, Van Yoresinde Akraba Evliligi (Ankara: Kultur Bakanligi Yayinlari, 1993).


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polygamously and defend that state of affair has been steadily increasing.35 Inthat context, one can see some people who polygamously married, in the urbanareas as well. For instance, there are some politicians, businessmen, singers,actors, and members of parliaments and even ministers of the cabinet who areknown 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 thenational dailies. In one case, a former minister of the cabinet who was also thechairman of a very popular football club, was freely talking about his secondwife in an interview.37

In a court case, the second wife of a polygamist businessman with nikah onlyclaimed in the court that after her husband died he left only three companies toher, 23 to the first wife, but she claimed that that was injustice and she deservedmuch more, applying for the annulment of the contract left by the husbandregarding inheritance. This case was reported almost in all newspapers withoutany negative comment on the polygamy issue.38

In a recent case, a minister of the cabinet, who was a member of the thenruling Welfare Party, became the centre of attention in a clash on polygamybetween European politicians and the Turkish politicians with regard to thehuman rights in Turkey.39 News about this incident both gives an idea about andsummarizes the issues of polygamy and nikah in Turkey from an outsidersview. On 17 April 1997 Christopher de Bellaigue of The Independent reportedthat:

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 Turkeys ruling Welfare partyhas two wives By marrying

twicethe first time with the sanction of the state, the second with that of an imam, or

Muslim priestMr was breaking Turkish law, although his parliamentary immunityprotects him from prosecution. Polygamy was banned by Kemal Ataturk, modern

Turkeys 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

Turkeys increasingly Islamic-hued parliament, you might get a cryptic look. For

understandable reasons, the Turkish press has preferred not to out political polygamists,

for whichlike the rest of Turkeyno 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-

riagesIslam sanctions fourare 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 theministers 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.


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Muslim legal pluralism operates in the country, organize special ceremonieswhere many unofficially married couples get married with the help of the State.They try to encourage the unofficially married people to get married officially.To that effect, in some parts of Turkey, the State organizes big official marriageceremonies where many unofficially married couples get married with the help

of the State.41

No one talks about the Criminal Code or any kind of punishment,let alone speaking about amnesty.

In such a recent case, the Secretary of State Responsible for the Women andFamily started a new campaign: Resmi nikahsiz aile kalmasin (Let there be nofamily remaining without official marriage). In the first event of that legalliteracy campaign, the minister and the director of religious affairs bore witnessin a State-sponsored official marriage ceremony of 12,000 couples who weremarried with imam nikahi but not with official marriage.42

Amnesty Laws

The State law needed to come to terms with the socio-legal reality and providedfor ad hoc legislation.43

As we have seen, although illegal, there are still some marriages performed bythe imams without the prior celebration. This state of marital affairs has givenrise to long-standing problems of couples who are not legally married, but regardthemselves, and are regarded in their social sphere, as married, and their childrenwho are illegitimate under the Civil Code.44 These illegitimate children facemany problems during their lives.45

The response to the great increase in illegitimacy as defined in the law hasseen the passing of a series of enactments to make legitimization extremely

simple.46

Thus, amnesty laws are almost periodically enacted which allow theregistration of consensual marriages, if a child has been born out of such arelation and if no marriage impediment between the parties exists.47 The mostrecent of these laws is dated 8 May 1991 and was valid for 5 years. 48 New draftlaw legislation on this matter is at the legislative stage at the Grand NationalAssembly.49

Whilst the primary concern in Western societies has been to improve the legalstatus of the illegitimate child, in Turkey, the legislator has provided for thelegitimization not only of the child, but also of the extra-marital union fromwhich 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 dIstanbul (Istanbul:Fakulteler Matbaasi, 1956), p. 19.44 Hicri Fisek Introduction, in Turkoz 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 registeredas 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.


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According to Amnesty laws, the children could be registered as legitimate ifthey were born to parents who had been living together continuously as husbandand wife. The Constitutional Court also espoused the same view.51 Based on thisdecision of the Constitutional Court, the Court of Cassations also held the samedecision in a case.52

This is an extraordinary development since the official law, although covertly,accepts the reality of imam nikahi which is without official registration.

Decisions of the Judges

As we have seen earlier, the public medium does not generally see the existenceof unofficial law as a breach of law. The status of many people in society, in oneway or another, is related to these unofficial acts. It would be naive to expect thatmany cases will come before the courts. Only in conflict situations does one ofthe parties let the law know. Despite all the legal measurements, the authoritieswill not know of the incident unless a dispute arises. Thus, majority of theperpetrators of these alleged crimes remain unpunished. Kruger points out thatthere is almost no punishment for imams who celebrate such marriagesunofficially.53 Or, as in many cases, as we shall see later, judges would betolerant with the convicted and would change the punishment from imprison-ment to a pecuniary punishment which shows the perpetuating impact of thelegal postulates.54

Thus, a number of cases have come before the courts whilst many have not.In some of the cases, one can easily detect that judges have reflected publicopinion and local legal postulates and have been tolerant.

The judges in the lower courts tolerated a number of under-age marriages yet

the Court of Cassation has cancelled these decisions if it did not see anexceptional point in the case.55 In another case, the court gave permission to agirl aged 11 to marry and it was not appealed. However, the Courts of Cassationoverruled that decision.56

In another case, a boy under the age of 15 took permission from a judge tomarry but the Court of Cassation held that the judgement was void.57 Here wehave only given examples that were cancelled by the Court of Cassations asthese are the only reported cases and the highest court, the Court of Cassations,strictly applies the letter of the law. Presumably, there are a number ofunreported similar cases that have never come to the Cassation stage and have

not either been cancelled.Tolerance of the judges is also the case with marriages with only nikah and

51 21.5.1981, No. 29/22.52 Y.2.H.D., 1.3.1983, S 1627/1825.53 Hilmar Kruger, Aile Hukuku Sorunlari Osmanli Islam Gelenegi, translated by Necla Giritlioglu, in BehlulDikecligil 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.


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polygamy. Some extreme-leftist writers have thus accused the judges in Turkeyof being tolerant to fundamentalist movements.58

In some cases, courts take into account the second wives who were onlymarried with a religious marriage. In such a recent case, the judge held thatsecond wife who was married only by nikah should be paid some compensation

from the insurance institution because of the death of her unofficial husband atwork.59

In another court case concerning polygamy which we noted earlier as well, thesecond wife of a polygamist businessman with nikah only, told the court thatafter her husband died he left only three companies to her, but 23 to his firstwife, 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 wastold or questioned about the nikah and polygamy issue. The judges dealt withthis 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 ofthe judges in the lower courts show that the legal postulates of the societyinfluence judges to be sympathetic to demands of local unofficial laws. Since thelegal postulates, in this case interwoven classical and local Muslim laws andmorality, permit and condone an unofficial marriage, a judge may not considerit as a serious criminal offence or intrusion of the rights of the minor, althougha 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

Consequences of Non-recognition of Dynamic Legal Pluralism for Women

Empirical data and the case law show that Turkish people have reconstructedtheir religious laws in spite of all the claims of the secular legal system,particularly in the cases of marriage and divorce, manifestly underscoring thatState law has limits.

By developing a new Turkish Muslim law, todays Turks, as skilful legalnavigators, have met the demands of both the secular Turkish legal system andthe Muslim law in a dynamic legal pluralist context. This dynamic Muslim legalpluralism has crucial repercussions regarding some vulnerable members ofsociety: women.62

58 See for example, Mutay Oztemiz, Cumhuriyet Doneminde Devletin Din Politikalari (Istanbul: Pencere, 1997),p. 125.59 Y. 21.H.D. 21/03/1996, E. 1604-K. 1661.60 Reported in Hurriyet, 20 March 1998, p. 43.61

June Starr, Law as Metaphor: From Islamic Courts to the Palace of Justice (New York: State University ofNew York Press, 1992), p. 169.62 The dynamic Muslim legal pluralism is by no means specific to Turkey. In the British context, Muslims havealso faced a dilemma between their unofficial Muslim law and the English lex loci. This has paved the way forthe emergence of British Muslim legal pluralism, see in detail, Ihsan Yilmaz Muslim Law in Britain, Reflectionsin the Socio-legal Sphere and Differential Legal Treatment, Journal of Muslim Minority Affairs, 20(2) (2000),pp. 353360; Yilmaz The Question of Incorporation of Muslim Personal Law into the English Law and Law asChameleon, Journal of Muslim Minority Affairs, 21(2)(2001), pp. 297308; Yilmaz, Is Having a Personal LawSystem a Solution? Towards a Supra-Modern Law, Journal for Islamic Studies, 20(2001), pp. 98122; Yilmaz,

The challenge of post-modern legality and muslim legal pluralism in England, Journal of Ethnic and MigrationStudies, 28(2) (2002), pp. 343354. See also in detail David Pearl and Werner F. Menski, Muslim Family Law,3rd edn (London: Sweet & Maxwell, 1998).


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When there is not any legal framework attached to these marriages andGemeinschaftpressure is not an issue at stake, especially in urban areas, womensuffer, as is the case most of the time. The cases of abuse of nikah, limpingmarriages and hidden nikah most clearly show this. It must be noted that thephenomena 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 marriagepatterns and realization of the legal security of civil marriage have led to anincrease in the number of civil marriages. Even in rural areas, people havestarted to register their marriages whilst still giving essential importance tonikah. Thus, according to Turkish Muslim law, Muslims will marry twice tosatisfy the demands of secular law and religious belief. This shows partialsuccess of the official law. People have realized to a great extent that marryingonly religiously with nikah has disadvantages, whilst having married secularly inaddition 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 gettingmarried.63 Religious only marriages still occur in substantial numbers, opposingthe wishes and claims of the official law. In a kind of marriage arrangement veryspecific to Turkey, people marry religiously with nikah and count this as anengagement, and if they agree in all aspects during engagement they registertheir 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 meetand talk at the presence of a third person. If they like each other, then, they getengaged. However, in this period they need to know each other more deeply. Tolegitimize their meetings without attendance of a third person, parents want themto marry religiously in order not to commit a sin.65 It is obvious that with thispractice the official marriage is regarded the decisive marriage.

However, this application brings many problems in some cases. Youngcouples sometimes see the nikah sufficient for sexual intercourse since they aremarried 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, Koy Kadinlarinin Sosyo-ekonomik ve Kulturel Konumlari (Istanbul:Friedrich Ebert Vakfi, 1992).64 Kadin ve Aile, July 1987: pp. 4045; Yeni Bizim Aile, February 1994, p. 20.65 Ibid.: Yusuf Kerimoglu, Fikhi Meseleler, vol. II (Istanbul: Olcu, 1989), pp. 2326; 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 hasnot given her talaq for 5 years to the effect of creating a limping marriage. He demands some money to give theyoung woman her talaq and is already married to another woman. Kerimoglu, Fikhi Meseleler, pp. 2326.


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Limping Marriages

A limping marriage is a marriage recognized in some jurisdictions as havingbeen validly dissolved, but in other jurisdiction(s) as still subsisting. A husbandis enabled to prevent his ex-wife from remarrying in accordance with herreligious 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. Underthe Jewish law, the wife must obtain a get, in Islamic law a religious divorcemust be accomplished in one of the ways of talaq, khul or mubarat. Religiousdivorce 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, Muslimhusbands in Turkey can and do still divorce their wives by talaq.

If the woman is not religiously divorced from her husband, it does not matterthat she is divorced under the civil law, in the eyes of the community herremarriage will be regarded as adulterous and any possible offspring will beillegitimate since it is not allowed under the religious law. So, in reality, until

the religious divorce is obtained, the civil divorce remains ineffective becauseone party is unable to remarry.

Sometimes, capricious husbands divorce their wives officially but do not wantto pronounce talaq or deliver the get to prevent the women remarrying. Theblackmailing by some unscrupulous husbands has led to some cases; knowingthe value placed on a religious divorce by their wives, such men have used theirpower to grant or withhold divorce to negotiate favourable settlements on theissue of finance, property or relating to children.

Badawi highlights the problem of limping marriages among Muslims inBritain:69

A common problem was that you get a woman seeking a divorce in the courts andobtaining 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 thereligious marriage, the nikah. The ignorant position of the official law leads tolimping marriages. Thus, conflict resolution is attempted by parents, families,relatives or religious community leaders who usually have a say in peoples lives

68 See also Alan Reed, Extra-judicial Divorces since Berkovits, Family Law, 26 (1996), pp. 100103; BernardBerkovits, 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. 119146; RhonaSchuz, 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. 11820;Zaki Badawi Muslim Justice in a Secular State, in Michael King (ed.) Gods Law versus State Law: TheConstruction 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 marriageand divorce, Badawi, Muslim Justice, p. 80. The same problem also occurs among Jews. See in detail Berkovits,Get and Talaq, pp. 138139.


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since people feel deep respect for them. Women are the most negatively affectedpart of the society. As a result of the legal systems approach to the reality oflegal pluralism, limping marriages have been created to the benefit of nobody atall.

Hidden (Gizli) Nikah

In another unofficial law scenario, youngsters get married without informingtheir parents with nikah only, and try to legitimize their relationship although atthe first instance the intention might not be real marriage. The main motive forthis practice is to avoid pre-marital intercourse, which is strongly condemned byIslam. This type of marriage creates the possibility for Muslim youngsters ofopposite sexes to live together. The lifestyle may develop, however, into alegally sanctioned marriage in case of pregnancy or when the social circum-stances of both partners have been stabilized.

It is obvious that there are some potential dangers of this abuse at the expense

of women, since there is no recognition by the official authority. If the manwants to leave and walks away, the woman would have no rights whatsoeverbefore the courts under the official law or there will not be any communitypressure as has been the case in traditional Muslim societies. After losing hervirginity, which is very important in Turkish Muslim culture, she would facedifficulties in getting remarried. Even worse, if she has a baby from the previousrelationship, the remarriage option would be more difficult.

In the Turkish context, this type of marriage is getting more common whichis called gizli (hidden) nikah. Young people, generally university students,marry each other with only nikah without informing their parents.71 In theabsence of an official registration, these marriages are not legitimate in the eyesof the State law.72 More interestingly, these marriages are also not seen asmarriage by many parents because of the absence of the legal framework.73 Thispractice is not followed by only young people: From time to time, the countryis shaken by some news about hidden and/or polygamous marriages of popularpeople, as well.74

Hidden nikah is a kind of Islamically legitimized flirt, according to someIslamic scholars.75 For instance, according to a theology professor, BekirTopaloglu, this kind of nikah is a type of covert flirt.76 Hamza Aktan, a professorof Islamic jurisprudence, emphasizes by a reference to a hadth that thedistinction between halal and haram lies in the announcement of the marriage

to the public. Thus, he concludes that hidden nikah is un-Islamic and onecannot show a similar application in the time of the prophet.77 According to

71 See for a recent comment and a response to a letter by a popular fiqh columnist about hidden marriage.He declares that he receives a number of letters from young people regarding hidden nikah. He also emphasizesthat most of the time, women are affected very negatively, Sohbetler, Ahmet Sahin, Zaman 2, 26 February 1998,p. 3.72 At this point, it is superfluous to emphasize that with polygamous marriages absence of legal framework isof course the case.73 Kadin ve Aile, p. 45; Yorunge, 28 July3 August 1996, pp. 510.74 See for instance all nationwide Turkish daily newspapers of the 115 January 1997. See for a more recent caseabout imam nikahi, Milliyet, 6 March 1998, p. 3. See also about the popularity of imam nikahi among MuslimTurks, Sabah, 29 March 1998.75

See in detail Ali Eren, Islamda Evlilik ve Aile Egitimi (Istanbul: Cetin, 1995); Kadin ve Aile; Yorunge.76 Ibid.77 Zaman, 12 January 1997, p. 2. See for the same view Ahmet Sahin, Zaman 2, 26 February 1998, p. 3.


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another prominent scholar, Ali Riza Demircan, this kind of nikah is a socialcatastrophe and most probably is illegitimate according to Muslim law since itis hidden and this situation is in conflict with the idea and purpose of themarriage 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 whoreply to the questions of individuals in the newspapers and in some Islamicperiodicals are frequently occupied by poor girls raising questions or com-plaints after they have been left by the unofficial young husband with orwithout any excuse.79 Since they are not officially married, she cannot claim anylegal rights, in the absence of the Muslim laws legal weight, the man even maypossibly not fulfil his Islamic duties.80 He is not legally tied down to theobligations of the marriage. The woman loses her virginity.81 A second marriagefor her will be very difficult and prospective husbands will perceive her as a kindof second-class girl when her situation is compared with virgins. More dramat-ically, in some cases, the woman becomes pregnant. Since they are not officiallymarried 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 mostdaring experiments for the modernizing elite in Muslim societies, was perceivedas 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 notabandoned their local Muslim family laws. The socio-legal reality of Muslimlegal pluralism stemming from resistance of local Muslim law has, for manyyears, been seen as a rural phenomenon in Turkey. However, it is becomingclear that Muslim legal pluralism, especially in family matters, is a reality ofurban 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 theybelieved that with the increase of urbanization, which is considered to be thesame as modernization and development, people would give up their localcustoms and religious laws and would follow only the official law. However, the

Turkish people have reconstructed their unofficial religious laws in spite of allthe 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 facteven State is and has been aware of. As recent research has shown, even therevolutionist Kemalist elite of 1920s was under the influence of Muslim legalpostulates:

78 Yorunge, 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 Kadinve Aile, p. 41; Yeni Bizim Aile, p. 20.81 Virginity is regarded as very important in the Turkish society, see Yorunge, p. 10; even the State is sensitive

about it, see Sabah, 17 October 1997.82 Kudin ve Aile, p. 42.83 Ibid.; Yorunge, pp. 5, 9.


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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 tiesbut now the non-recognition of the socio-legal reality and the States 1930sfashion Jacobin ideology make adverse effects. Dynamic legal pluralism is aninevitable 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 alsopossibly lose its official control over the socio-legal domain as a result of thegrowth of unofficial legal alternatives. Last but not least, education (but notindoctrination) must always be a priority, both for the State and Muslimcommunities.

84 Ruth A. Miller, The Ottoman and Islamic Substratum of Turkeys Swiss Civil Code, Oxford Journal of IslamicStudies, 11(3) (2000), p. 361.


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