Law as an Ideology: The Case of Turkey
İdeoloji Olarak Hukuk: Türkiye Örneği
Sezgin Seymen ÇEBİ
This paper aims to contribute to the debate on law as an ideology in light of the Turkish case. Consequently, I will argue that, in addition to many things, the Turkish example teaches us probably a common lesson: Law can become a mere tool for the implementation of politico-ideological projects, in this case creating a homogeneous modern nation state. Another lesson we can drive from the Turkish example is that law by itself has no capacity to carry out modern social engineering projects to their ends. It inevitably needs paralegal, extralegal and even illegal acts, as well as strategic political actions, accompanying to its application processes along the way. Accordingly, I sincerely believe that the very late Ottoman times and especially the early modern history of Turkey provides us with striking examples in this regard. Therefore, in this paper, in order to elucidate my point, I will try to show how law functioned as an ideological tool for a comprehensive project of founding a homogeneous modern nation state based on Turkish nationalism, especially focusing on the very late times of Ottoman Empire and the early times of Turkish Republic, without ignoring some of the repercussions of this phenomenon in later times of Turkey.
Law, Ideology, The Nation State, Turkish Nationalism, Minority Rights.
Bu makale hukuk ve ideoloji tartışmalarına Türkiye örneği üzerinden katkı sağlamayı amaçlamaktadır. Kanımca Türkiye örneği, birçok şeyin yanında, hukuk ve ideolojiye ilişkin öncelikle şu sonuca bizi ulaştırmaktadır: Homojen bir ulus devlet yaratma gibi politik-ideolojik projelerin tamamlanması için hukuk basit bir araç haline gelebilir. Türkiye örneğinden çıkarabileceğimiz bir başka sonuç ise hukukun modern sosyal mühendislik projelerini tamamlayacak bir kapasiteye tek başına sahip olmadığıdır. Buna göre, bu tür projelerin tamamlanması için kullanıldığında hukuk, bu projelerin uygulanma sürecinde ona eşlik edecek stratejik politik eylemler yanında hukuk ötesi, hatta hukuk dışı (extralegal) ve illegal yöntemlere de kaçınılmaz olarak ihtiyaç duymaktadır. Osmanlı İmparatorluğu’nun son dönemleri ile Türkiye’nin erken dönem modern tarihi bu hususta bize çarpıcı örnekler sunmaktadır. Bu bağlamda, iddiamı açıklığa kavuşturmak için belirtilen dönemlerde hukukun kapsamlı bir proje olan Türk milliyetçiliği temelinde homojen bir modern ulus devlet kurmak için ideolojik bir araç olarak nasıl işlev gördüğünü göstermeye çalışacağım.
Hukuk, İdeoloji, Ulus-Devlet, Türk Milliyetçiliği, Azınlık Hakları.
Introduction
The relationship between law and ideology has been one of the most controversial issues of modern political thought. There have been varieties of descriptions of both law and ideology in modern times. Most of these descriptions construed the areas of law and ideology as mutually exclusive. In this article however I will argue otherwise and construct my argument based on a specific understanding of ideology in modern times by Marxist thought. Moreover, I must also emphasize that we don’t have to subscribe to the irrelevant convictions of the Marxist thought for our subject matter. All we need to do is to take the specific reading and understanding of ideology by Marxist thought into consideration so as to shed a light on the main concern of this article: how a multicultural society, namely Ottoman Empire, with its remaining territory and people after the World War I, was transformed into a homogenized modern nation state, Turkey, via using law as an ideological tool for constructing the new state?
We should bear in mind right at the outset that law by itself has no power to transform a political society. Moreover, it can be part of a larger modern project to be used as an ideological tool to transform the political society. A project of this magnitude could not be applied only via laws and regulations; thus it also needs paralegal, extralegal and illegal methods and practices as well as strategic political acts and so on to accomplish what is expected from it. Accordingly, I sincerely believe that the very late Ottoman times and especially the early modern history of Turkey provides us with a striking example in this regard.
I. Law and Ideology
Can law function as an ideology or a part of ideological premises which aims at achieving certain socio-political goals for a particular political society? This question has been one of the most debated topics in social theory. As we know, political ideologies such as fascism, communism, liberalism, conservatism etc., historically speaking, are the inventions of the nineteenth century. It was a century in which certain political ideas emerged or, to put it more correctly, reinvented to systematically deal with insurmountable political, social and economic problems engulfing the modern political societies. Since law and politics seem inextricably intertwined, it seemed almost inevitable to critically analyze law’s possible relationship with these new phenomena, namely political ideologies. Needless to say, the issue is very complex and contentious. To cover the subject panoptically is impossible in a limited article, which by no means aims at specifically analyzing this issue. However, we can argue that, then and now, to view law as an ideology has been definitely at odds with mainstream thinking about law. Therefore, it goes against both the positivist conception of law, seeing law as a set of formal rules, and the philosophical position of natural law in which law, morality and of course justice are considered interrelated subjects.
