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İHSAN YILMAZ

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İHSAN YILMAZ
May 25, 2008, Sunday

Post-modern Turkish legality

We need to thank the judges of the top courts for exposing their views and reminding us again that the judiciary in Turkey is political, not impartial, and that radical judicial reform is a must. Every person on the street in Turkey knows very well that not everybody is equal before the law, to say the least. In today's Turkey, one can freely insult the prime minister, religious figures or members of minority groups, and their crimes will go unpunished. The higher courts repeatedly overruled the libel verdicts of lower courts by saying that politicians should be tolerant. Yet when it comes to criticizing judicial verdicts, we are constantly told off as if what judges do and say is sacred. Our top judges should know very well that what they are doing is highly visible and that they cannot convince the man on the street that they are not biased.

The main characteristics of legal modernity include uniformity of rules and their application. Modern law consists of rules that do not vary from one application to another. As for Turkish law, myriad numbers of contradicting verdicts prove that Turkish legality is not modern in the sense of uniformity. Legal modernity is also composed of universalism. Legal decisions, once made, are kept uniform rather than altered from case to case. The application of law is reproducible and predictable. In the Turkish version, one can only predict the verdict if one either knows the political or religious identity of the accused or accuser. In many cases, the accused cannot even be tried if he is an official. Another cornerstone of legal modernity is a transactional basis for rights and duties. People's obligations to each other come from agreements freely negotiated between them, not from unchanging obligations based on personal or group identity. Legal rights and duties are not determined by factors such as age, religion, political identity or sex, which are unrelated to transactions. Can our judges comfortably say that this is the case in Turkey?

Rationality is another cornerstone of legal modernity. Understandable rules are designed to achieve clearly stated goals using demonstrably effective methods. In the Turkish case, a law is understood by people in a certain way until Mr. Sabih Kanadoglu comes up with a different, if implausible, reading of the law and he instantly "convinces" the top judges of this interpretation -- the 367 fiasco being a prominent example. Judicial reasoning of our judges does not have to be rational as long as it is in line with their narrowly defined and sacred civil servant friendly Kemalist ideology. Changeability is also a vital aspect of legal modernity. The rules and procedures can be modified for the purposes of achieving the stated goals. There is no sacred fixity; the system is amendable and contains regular democratic methods for revising rules and procedures. As far as Turkish law is concerned, when one looks at the strong reactions of the top judges to the possibility of making a new democratic constitution, one cannot help but think that the current undemocratic constitution is seen as sacred by our top judges.

It is crystal clear that our top judges' understanding and application of the law is definitely not modern. This eschatological law should be recorded as Turkish top judges' original contribution to legal theory. Looking at its hyper-pluralist and unpredictable character, we can rejoice that our top judges also have responded to the pluralistic postmodern zeitgeist and have at last started espousing some kind of post-modernity. Unfortunately, in this case the post-modernity is legal post-modernity, and legal post-modernity can be extremely dangerous. In post-modernity anything goes, as is the case with Turkish law.

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