For Tommy De Seno: Notes on the Turkish Legal System and Islamic Law

 

Tommy asked me:

I’d like to know if secular but majority Muslim countries like Turkey and Indonesia use Sharia Law in their civil or criminal code, or if they have separate proceedings to handle matters involving questions of Sharia.  Maybe Claire Berlinski can help me out?

The Turkish legal system has nothing to do with Sharia. (By the way, the phrase “Sharia law” is redundant; it’s like saying “Roman law law,” but this is a pedant’s quibble.) 

As I explain here, Turkey’s institutions are weak for distinct historical reasons: 

In 1922, the new Republican assembly of Turkey overthrew the House of Osman, assuming its authority. Atatürk purged the bureaucracy of its Ottoman elements and radically Westernized the education system. Even the Ottoman script was replaced with a Latin one, cutting off every Turk born thereafter from 600 years of Ottoman culture and signaling the alignment of the Republic with Europe, not the Muslim East. Islamic courts were abolished and replaced with a secular legal apparatus modeled word-for-word on the Swiss, German, and Italian civil and penal codes.

The development of these institutions in Europe, however, was accompanied by centuries of coterminous social and cultural evolution; and while the later Ottoman sultans engaged, often vigorously, in Westernization, Turkish institutional reform came haltingly, if at all. Atatürk’s reforms were by no means a commensurate process; if so, he would not have famously declared them to be “for the people, despite the people.” The Turkish state—hypertrophied under Atatürk’s étatist rule—has since tended to suppress the growth of the non-state institutions, such as a free press, that work in tandem with parliaments, bureaucracies, and legal systems to ensure their efficacy.

 In Part II of that piece–which I wrote a while ago but which I think holds up pretty well–I explain some of the ramifications of this: 

Take the issue of contract law. When I moved to Turkey, about four years ago, I shared an apartment with another foreigner. Our rental contract was dollar-denominated, which is common here; it protects both landlord and tenant against the lira’s fluctuations. The language of our contract was perfectly clear, and so is the language of Turkish rental law. Both our contract and the law said that we could neither be evicted without cause nor subjected to an arbitrary rent increase.

Then the dollar began to fall. Our landlord was unhappy. He wanted more money.

“You can’t have it,” we told him politely. “You signed a contract.”

This meant nothing to him. The contract, in his view, was irrelevant, because the deal was unfair: he hadn’t known, after all, that the dollar would go down. We hired an attorney to call him and explain to him that he had no legal case. This did not impress him. He grew increasingly agitated. His harassment, finally, prompted us to go to the police. They were indifferent. Another lawyer, a friend, kindly offered to have our landlord “taken to the sea.” This, in his considered legal judgment, was the best way to solve the problem. He meant it. We appreciated the thought, but decided we’d rather just move.

It is anecdotal evidence, but everyone who lives here will agree that this story is not atypical. It illustrates an important point: in Turkey, contracts do not enjoy the same status that they do in America or Europe. The contract law, on the books, looks perfectly modern; indeed, it was copied from European contract law. But you cannot copy a mentality, and a contract is only valuable if it is viewed by all parties and the justice system as binding and enforceable.

I should add that the Westernization of the Turkish legal system actually began quite some time before Atatürk; the Tanzimat reformers were greatly impressed, for example, by the Napoleonic code; and if I recall rightly the attempt to bring Turkey under a Western-style constitution dates at least to the Charter of Alliance (Sened-i Ittifak), in 1808; that restricted the Sultan’s exercise of power and delegated authority to the Senate. (Correct me if I’m wrong, Turkish constitutional lawyers.) So no point looking to Sharia to try to understand what’s going on here. Like everything in Turkey, the legal system here is its own unique Turkish thing, shaped by a very particular history. 

Next thing I’d add is that Islamic jurisprudence is an incredibly complicated subject. Anyone who casually refers to Sharia as if it were a unitary thing, applied everywhere in Islamic history in the same way, may be dismissed out of hand as so manifestly not knowing what he’s talking about that you may as well just switch the channel. Don’t trust another word out of his mouth. I mean, scholars spend years, literally, trying to master the subtleties of the 1858 Ottoman land code.  What I know about Indonesian jurisprudence is enough to know that there is a massive literature about it and that I would assume it is as complex a subject as Ottoman or Safavid law–or for that matter the Napoleonic code or British common law.

So how does an intelligent person regard the prospect of the imposition of Islamic law in the United States? By saying, “We have American law. That’s the law of the land. If you wish to practice your own law in addition to that as a matter of conscience, that’s fine with us, so long as you don’t break any American laws.” 

I’m fine with cases in which both parties agree, contractually, to settle certain kinds of dispute by arbitration with appeal to Islamic law (or by appeal to any principles they like), so long as those principles don’t contradict American laws. But once it gets to arbitration, good luck deciding what Islamic law is–there’s not a whole lot of agreement about that, historically speaking.

Your Honor, my client appeals to the classical Maliki view on water rights. 

Objection! My client notes that in the Hanifi tradition there is never any obligation incumbent upon the water owner!

You’ll probably want a really sharp American lawyer working out the details of that contract before it winds up in arbitration. 

If you tell me that according to Islamic law you must stone your adulterous wife to death, well, you know the quote ascribed to General Napier. “You say that it is your custom to burn widows. Very well. We also have a custom: when men burn a woman alive, we tie a rope around their necks and we hang them. Build your funeral pyre; beside it, my carpenters will build a gallows. You may follow your custom. And then we will follow ours.”

He was speaking of a Hindu practice, mind you. 

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  1. Profile Photo Inactive
    @DavidWilliamson

    As you say, Claire, there are many types of Sharia, and proponents thereof.

    However, I would suggest that the type being proposed by a significant proportion of Islamists is in favor of more fundamental change than you suggest.

    • #1
  2. Profile Photo Editor
    @Claire

    Interestingly, the phone number for “Media Inquiries” is in Britain. Call: (+44) 7956 600 569. Who wants to try calling them to figure out who they really are?

    • #2
  3. Profile Photo Editor
    @Claire

    I called them. I couldn’t resist. I said, “It’s a parody, right?”

    “What makes you think it’s a parody?”

    “Well, come on. Putting the Statue of Liberty under a burqa?”

    My interlocutor insisted that no, he was a sincere Islamist lunatic. “We’ve had a lot of media attention,” he said forlornly.

    I asked, “So, do you have any affiliates in America? Anyone I can contact in America?” They said they did, but they couldn’t produce any contact information.

    Direct further queries to muslimlawyers@hotmail.com.

    Beats me whether it’s a joke. There certainly are people who believe these things. But this particular website has an “It’s-a-joke” feel.

    • #3
  4. Profile Photo Inactive
    @DavidWilliamson
    Claire Berlinski, Ed.: Interestingly, the phone number for “Media Inquiries” is in Britain. Call: (+44) 7956 600 569. Who wants to try calling them to figure out who they really are? · Jun 30 at 1:27am

    I guess that should be me, as I am in the UK at the moment – but I am busy working – lol.

    Of course, the Archbishop of Canterbury is famously pro-Sharia. It’s almost like the push for Sharia is some kinda international movement, or something ;-)

    Update: Thanks for calling, Claire! I think they are quite serious – just a hunch.

    • #4
  5. Profile Photo Editor
    @Claire

    So, if Ricochet wants to do some collective investigative journalism, I guess someone could investigate the following hypotheses:

    1) They really are connected to Choudary.

    2) They’re a guy in a basement pretending to be connected to Choudary to make himself seem more important.

    3) They’re trying to discredit Choudary.

    4) They’re trying to discredit credulous news organs who report this breathlessly without investigating it.

    I don’t feel like doing the legwork on this because my gut says none of the above are worth the effort. But if you’re bored, you never know what you might find if you poke around …

    • #5
  6. Profile Photo Inactive
    @Schwaibold

    The Napier/Hindu example is instructive because this type of “holding fast to the rule of law” in the face of long held traditions and religious beliefs generally does NOT occur in most Islamic countries. Every day reports come out of the middle east, Egypt, Pakistan, Turkey, Indonesia, Malaysia, etc., about individuals or mobs who commit assault, arson, and murder against non-Muslims for ‘insulting Islam’ and the local police and/or courts treat it like a minor domestic dispute; i.e., they let the participants ‘work it out’.

    For example: a Muslim murders a non-Muslim for blasphemy, and the case actually makes it to court, what is the Muslim judge going to say when the prosecutor argues, “well, the Prophet did it, are you saying the the Prophet was wrong?” At that point, all the written laws go out the window and the murderer is, at worst, ordered to pay ‘blood money’ to the victim’s family, though this will never be enforced.

    ‘Man-made’ laws always fail in Islamic countries – they’re bidd’ha, and they always lose out to the example of the prophet. All Islamic countries are de facto theocracies.

    • #6
  7. Profile Photo Editor
    @Claire
    jhimmi: The Napier/Hindu example is instructive because this type of “holding fast to the rule of law” in the face of long held traditions and religious beliefs generally does NOT occur in most Islamic countries.

    “Holding fast to the rule of law” doesn’t generally occur much of anywhere. It certainly doesn’t occur in Russia or China–and for all its failings, I’d still take the Turkish legal system over the Russian or Chinese legal systems. Or the Mexican or the Greek legal systems. Turkey, despite being a majority-Muslim country, is no how, no way a theocracy. If you’re not willing to believe me, just come look. As with what I say about the Sledgehammer trial, I am not asking you to believe me on faith. This can easily be independently confirmed.

    Why do people seem to long to believe the contrary?

    • #7
  8. Profile Photo Inactive
    @Schwaibold
    Claire Berlinski, Ed.

    jhimmi: The Napier/Hindu example is instructive because this type of “holding fast to the rule of law” in the face of long held traditions and religious beliefs generally does NOT occur in most Islamic countries.

    Turkey, despite being a majority-Muslim country, is no how, no way a theocracy. If you’re not willing to believe me, just come look. As with what I say about the Sledgehammer trial, I am not asking you to believe me on faith. This can easily be independently confirmed.

    Why do people seem to long to believe the contrary? · Jun 30 at 6:

    I agree Turkey is the exception to my ‘de facto theocracy’ rule, but only because of Mustafa Kemal Ataturk and his legacy within the military. I don’t think it’s any coincidence that most putatively secular Islamic countries must violate liberties in order to repress the fanaticism currently dominating Islam (Ataturk, Mubarak, Assad, Saddam Hussein).

    When a culture dominated by Islam tries to go secular, it’s like splitting time between divorced parents after a bitter divorce – secularism and Islam undermine one another.

    • #8
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    @JohnMarzan

    “”We have American law. That’s the law of the land. If you wish to practice your own law in addition to that as a matter of conscience, that’s fine with us, so long as you don’t break any American laws.”

    Yes.

    • #9
  10. Profile Photo Member
    @Roberto
    Claire Berlinski, Ed.: So, if Ricochet wants to do some collective investigative journalism, I guess someone could investigate the following hypotheses: · Jun 30 at 2:22am

    Whoever they are, the site appears rather new. The domain name was registered only back in 21-feb-2011. The owners also appear concerned about their privacy as well seeing as how all their DNS registration info goes back to their domain registrar:

    Abdullah c/o Dynadot PrivacyPO Box 701San Mateo, CA 94401United StatesHmm, Abdullah. Is that a common name or is someone mocking the King of Saudi Arabia?
    • #10
  11. Profile Photo Contributor
    @TommyDeSeno

    Claire thank you for this. I guess Turkey’s slow Westernization of their legal system is still Westernization.

    I’m going to keep my eyes open for more about Sharia, only because I do keep hearing Republican candidates talk about it.

    I’m not sold yet that it is a problem instead of a good talking point.

    • #11
  12. Profile Photo Member
    @JohnH

    I recently read that the average IQ in Yemen is 85. I did not exclaim: “That high, huh?” Instead, I exclaimed: “They still measure IQ?” Yes, they do. I had no idea. So then I exclaimed, or rather sighed: “Well, that explains a lot.”

    Turks have generally struck me as ditzes, but I give ’em a pass: my Turkish isn’t good, and the scope for misunderstanding is huge. Ecumenically and linguistically overcompensating, I duly observe a Brazilian story about a Spanish law against illegal immigrants. They passed a law making illegality illegaler: that’s the Brazilian take. A few commenters get past the implicit redundancy and show a proper grasp of sovereignty’s pains and privileges, but the rest are spluttering, irrelevantly (Brazilians are slobs and throw beer cans under airplane seats?) or preposterously (there are 20 million Germans in Brazil?). This isn’t anything like Americans trying to assess Sharia, an ignorant but fundamentally honest effort. This is foreign people with a big button between their shoulder blades, and somebody pushed it. Mental indiscipline – which might be called an “institutional weakness,” though not “historical,” or religious, or cultural – is a common thing overseas.
    • #12

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