Introduction of the Civil
Code
The ancient Islamic Law, based on the Word of
the Prophet, was the most serious obstacle encountered by Turkey's social
progress. It had varied little, since the Turkish people had adopted Islam and
Arab customs, and begun to govern themselves by the Koranic Law, both in the
constitution of their state and in their social regulations.
The foundations of the Islamic Law are the
dogmas and moral precepts comprised in the Koran, the word of Mohammed, which
is the only fountain of wisdom. In addition to the Holy Book, the preparation
and development of the Law had taken into consideration the Hadith, which
contains information on Mohammed's way of conduct, and completes and
interprets the meaning of the precepts of the Koran. In the time of the first
Califs, whenever the Koran left any points not explicitly resolved, when its
when its precepts to be put into practice, groups of wise men and theologians
would gather and find solutions for the difficulties, taking it upon
themselves to interpret the hidden wishes of the Prophet.
Moslem law was therefore rudimentary in its
beginnings, which became clear when the Arabs conquered a great Empire in the
seventh century and found themselves obliged to govern different peoples with
differing customs. To meet the needs arising from this situation, the Arab
jurisconsults set to perfect Islamic Law, which they did without going beyond
the limits and spirit of its original sources, the Koran and the Hadith.
Tha Law was divided into three parts. The
first part was not very different from the principles of the present-day
European Law. The section on marriage was the one which showed the greatest
difference from its European equivalent, allowing polygamy; the system of
repudiation, by which the husband had the right to expel his wife from the
home, kept women in a state of inferiority. The third part of the Law dealt
with punishment, and was inspired by the Lex Talionis, which is based on the
Law of Moses.
The Ottoman Empire took the foundations of
its code of laws entirely from the ancient Islamic Law, ad justice functiouned
in the following way: first there came the Calif, Suprimi Judge and Head of
State; in his name, the "kadıs", who were judges graduated from the
medreses, administered justice. A characteristic of the Law was its
recognition of a judge without assessors. Apart from the kadıs there were
"muftis" or higher jurisconsults, to whom those who did not agree
with the kadı's decisions could appeal.
The reforming Sultans had the idea of modernising the law, but prevailing
interests opposed this. It would have been necessary to make a total change in
the constitution of the theocratic state, and separate civil from religious
affairs, which no Sultan could have dared to attempt. Since Ottoman history
was full of examples of the danger brought by progress, nothing more than
half-measures were taken.
The decline of the "Sick Man" ,
which became more marked in the middle of the nineteenth century, aroused the
ambitions of the Great Powers in his respect, and he understood the need to
reach the cultural level of his opponents, or die. In the field of law, it was
necessary to codify the laws, creating a system which agreed with the social
development of the times; this was done, but imperfectly.
The Civil Code was ready in 1868 under the
name of "Compilation of Juridical Provisions"; the Penal Code was
adopted 11 years later. The whole code was called the "Mecelle", and
was based on the civil provisions of Arab and Islamic Law. From the legal
reforms of that time there arose, in order to apply them, two kinds of courts
instead of what had been before; there were the civil courts called the "Nizamiye",
and the religious courts, or those of the "Şeriat". The latter
continued to function in their accustomed way; however, their competence was
limited to disputes concerning the right of families and the pious
foundations. Appeal courts were set above the civil courts.
It was impossible to make any reform in
family law, and the Turks continued to obey the laws which had served the Arab
community many centuries before.
Apart from this double legal system there
existed the various courts of the minorities, which were competent in all
matters concerning the rights of families and persons belonging to them.
Thanks to the capitulation regime, the foreigners had the right of being
judged in their respective consulates.
This was the scene as it was found by the
Young Turks' revolution in 1908. There were many plans made to give the Empire
a modern code and system of justice, but very little was accomplished.
When the Treaty of Lausanne had been
concluded, opening a period of freedom for Turkey , Kemal began to work
actively, with a view to suggesting the form in which the legal revolution
should operate. Even before that propitious Treaty had been signed, he had
announced his revolutionary intentions on the subject, making use of an axiom
which appears in the "Mecelle", and which was based on the Holy Law
: "The Laws change as things change with time". According to the
Gazi, this was the fundamental principle of the legal policy which the new
Turkey should follow.
When the secularisation of the state had been
decided, the first material step towards legal reforms was the abolition of
the religious courts and the Ministry of Religious Affairs; the double legal
authority was contrary to modern logic, since there were frequent disputes
about respective competences, and the "Seyhülislamat" or Ministry
of Religious Affairs got into conflict with the Ministry of Justice, since
there was no relationship between the judges of one side with those of the
other.
In his speech on the 1st of March 1924, the Gazi spoke thus about
the legal reform, which was a subject on which, he said, faith in mythology
was a system preventing the awakening of peoples : "The most important
thing is to liberate our conception of justice, and our legal institutions and
laws from the bonds which hold us under their influence, consciously or
unconsciously, and which are incompatible with the needs of the century."
On the occasion of the opening of the Law
School in Ankara in November 1925, the Gazi recalled that the negative force
which had been the cause of the decay of the Empire was the Law which had
controlled it. Thus the Empire which had been strong enough to control great
areas of Europe had been unable to overcome the lawyers, who had resisted the
introduction of printing, perfected by Gutenberg in 1436, for three centuries.
"The nation believes," he said, "that the rule which says that
all laws should be inspired by needs here on the earth, is a condition of its
existence."
From September 1924 there were meetings of
the leading Turkish lawyers to discuss the new legislation. The parties
appeared; one advised the laws should be created in accordance with modern
social life, while the other proposed to adopt the European codes of laws
which most suited the country. Kemal took the latter side, since studies and
discussions would have lost time which was difficult to estimate.
The Swiss Civil Code, which was the most
modern and suited to the latest advances of legal law, was adopted and as a
whole, except for the part concerning trade. With the adoption of that legal
corpus, there were effectively abolished the provisions of the old Religious
Law, and also the customs which had been enormously supposed to be based on
religion. Polygamy, repudiation of wives, and everything which placed women in
an inferior social position were swept away.
The opinions of the Congress of The Hague in
1907 served as basis for the Commercial Law adopted by Turkey; the Law of
Judicial Procedures was taken from that of Neu chatel in Switzerland, and at
second remove from French and German codes; the Swiss examples served for the
Laws of Execution and Bankruptcy, and the Maritime Law was copied from the
German Code. The Italian Penal Law was adopted as being the most modern of its
kind, while the Law of Procedure for the Penal Courts took the example of
those used in Germany.
This task of adaptation was naturally not
completed in the year 1926, like the Civil Code, but was finished after 4
years of work.
The organisation of justice received all the
attention due to it; the number of Magistrates' Courts was raised to the
required number, and they were presided over by judges without assessors;
Courts of First Instance were controlled by three judges, while the Criminal
Courts which tried cases carrying serious penalties were presided over by
five. The Appeal Courts continue to operate, and there is no jurisdiction
higher then theirs. No defendant can be questioned without the presence o his
defending lawyer, provided that he has asked for this. The Assembly has the
right of pardon.
Special laws and regulations were made to
place strict qualifications on the professions of lawyer and judge, whose
control had hitherto been extremely lax; during tha Monarch, there had been
many members of the Bar who had never been to school.
After the acceptance of the Civil Code, the
non-Moslem minorities, to whom article 48 of the Treaty of Lausanne had
recognised legal autonomy in family and personal matters, decided to give up
that prerogative, since the ancient Moslem religious legislation had
disappeared, and the new laws offered the fullest guarantees.
Source : "Atatürk"
by Jorge Blanco Villalta, translated from Spanish by William Campbell,
Türk Tarih Kurumu Basımevi, 1991
|
