Gender and the normative infrastructure of Kemalist modernity

It has long been recognised that Kemalist ideology, like many other programmes of national reconstitution (Nagel, Reference Nagel1998; and, for a typical example, Ashwin, Reference Ashwin and Ashwin2000), adopted implicitly gendered models for conceptualising state–society relations (Arat, Reference Arat and Joseph2003). To put it crudely, the state tended to be associated with the technocratic dynamism of the ‘masculine’ West, understood as a properly self-conscious agent of progressive development, while society was ordinarily affiliated with the parochial fatalism of the ‘feminine’ East – at best the material with which such development might be achieved, at worst an obstacle standing in the way of its full realisation. Far from a purely indigenous phenomenon, such models recruited much of their rhetorical force from European orientalism, the essentialist underpinnings of which supplied a basis upon which ‘femininity’ might be tethered to the past and ‘masculinity’ projected into the future (Yeğenoğlu, Reference Yeğenoğlu1998, pp. 95–97). The state was usually understood as the bastion of an aggressive programme of teleologically oriented ‘modernisation’, designed and executed against the background of ‘masculine’ values of discipline and determination. Conversely, society was generally represented as the site of the communitarian ethos, the focal point of ‘feminine’ virtues of primordial custom and convention – virtues which, if utilised with sufficient dexterity, would supply Kemalism’s ‘modernisation’ project with additional and much-needed reserves of social power and legitimacy.Footnote ⁸ To the extent that society might be brought under the supervision of what Kemal sometimes referred to as ‘the manly qualities of the Turkish nation’ (Parla and Davison, Reference Parla and Davison2004, p. 252), its constituent norms and values could be merged with and made to serve the ends of the state, the most lucid and concrete expression of ‘the Turkish nation’.

Underlying and inspiring this approach was what Gökalp referred to as the distinction between ‘culture’ (hars) and ‘civilisation’ (medeniyet), the former being understood as an organic outgrowth of domestically prevalent ‘ways of life’ and the latter serving as a placeholder for the kind of technological development and administrative bureaucratisation then believed to form the foundations of European modernity (e.g. 1959, pp. 104–109).Footnote ⁹ Unlike ‘culture’, which Gökalp, like so many of his contemporaries, took to be integral to and constitutive of national identity, ‘civilisation’ was deemed to command international status, influenced by but fundamentally irreducible to the various sociohistorical milieux in which it might happen to take root and grow (Parla, Reference Parla1985, pp. 28, 33; Heyd, Reference Heyd1950, p. 64). Similarly, while ‘culture’ was highly context-specific, differential ‘levels’ of ‘civilisation’ were assumed to be amenable to objective determination on the basis of a universally valid set of positivistic criteria for the calibration of relative ‘stages’ of sociopolitical maturation.Footnote ¹⁰

Rather than forcing his compatriots to choose between wholesale imitation of ‘Europe’ and obstinate adherence to ingrained local customs, Gökalp believed that Turkey ought to appropriate the ideational machinery of Western ‘civilisation’ while not only preserving but positively cultivating the élan of ‘traditional’ (Islamic as well as pre-Islamic) Turkish ‘culture’. This, he believed, would allow Turkey to skirt the twin dangers of a mimetic replication of ‘the West’ and a proto-fundamentalist essentialisation of ‘the East’ so as to emphasise the necessity of ‘importing’ applied sciences and administrative practices – perceived for some time in the West itself as endowed with an unprecedented potential for exercising social control (e.g. Wagner, Reference Wagner, Hård and Jamison1998, pp. 231–38) – while maintaining a firm grip on the principle that each nation is in possession of an inalienable right to the conservation and development of its own ‘culture’. In other words, by urging his compatriots ‘to be the disciples of Europe in civilization’ while remaining ‘entirely independent of it in culture’ (Gökalp, Reference Gökalp and Berkes1959, p. 250), he hoped to lay the foundations for a modernity that would be able to ground its state-driven commitment to internationalist progressivism in organically evolving social structures, simultaneously juxtaposing and fusing the ‘mechanical’ accretion of idées-forces with the ‘creative evolution’ of sentiments-forces (Gökalp, Reference Gökalp and Berkes1959, p. 288). The combination of these two drives would furnish Turkey with the ability to reconcile ‘culture’ and ‘civilisation’, thereby satisfying both its desire for international respectability and its craving for domestic security (Gökalp, Reference Gökalp and Berkes1959, p. 286).Footnote ¹¹

It is not especially difficult to see that this dynamic – a classic illustration of a binary regime nourished by internalisation of the ‘Western gaze’ (e.g. Ahıska, Reference Ahiska, Sökmen and Ertür2008, pp. 142–43) and resting, among other things, on an amalgam of civic-territorial and ethno-romantic modes of nationalism (e.g. Canefe, Reference Canefe2002, pp. 135–36; Yıldız, Reference Yildiz2001, pp. 30–39; and, for a classic discussion of the typological problématique, Smith, Reference Smith1991, pp. 82–83) – recruits a tacitly gendered account of social life and political order. Framing the distinction as one between particularistic ‘culture’ and universalistic ‘civilisation’ allowed Gökalp to distinguish between the private realm of authentic but unrefined custom and the public sphere of worldly but instrumentalist rationalism, thereby tethering ‘culture’ to some of the most classic – Ottoman no less than Western – attributes of ‘femininity’ (modesty, ritual, sentimentality, etc.) and ‘civilisation’ to many of the properties conventionally ascribed to ‘masculinity’ in the post-Baconian West (order, reason, progress, etc.).Footnote ¹² While the ‘outer form’ of Turkish society might be in need of comprehensive reorganisation, its adjudicative institutions, bureaucratic apparatuses and military organisations having to be overhauled in light of European dominance, its ‘inner content’, embodied in the practices of everyday life, had to be preserved to the greatest extent possible. Or, to put it in slightly different terms, it was only by segregating the private dominion of ‘female’ domesticity from the public arena of ‘male’ engagement that a systematic transformation of the latter might be undertaken without the inviolability of the former being threatened.Footnote ¹³ Isolating rights and responsibilities along these lines would enable Turkish women to regain legal equality with their male counterparts, thereby reactualising the ‘Golden Age’ of pre-Islamic Turkish society, in which women enjoyed ‘a legal status equal with, or even sometimes superior to, that of men’ (Gökalp, Reference Gökalp and Berkes1959, p. 253).Footnote ¹⁴

Despite being accorded the status of the early Republic’s quasi-official state philosopher (Kemal is reputed to have referred to him as ‘the father of my thought’; Parla, Reference Parla1985, p. 93), many of Gökalp’s practical recommendations were never implemented in their entirety, at least not with any real measure of consistency. The conceptual fluidity of his work and the inordinately frenetic conditions under which early republican legislators and administrators operated surely had a hand in restricting this transmission. Much of it may also be attributed to the more absolutist facets of Kemalist statecraft, the chief practitioners of which came over time to adopt increasingly Jacobin strategies of ‘managing’ the evolution of social norms and values in an effort to further their ‘nation-building’ project (Atabaki and Zürcher, Reference Atabaki, Zürcher, Atabaki and Zürcher2004, p. 9). Indeed, the very vocabulary of Turkish state discourse respecting ‘religion’ reflects this tense relation. Rather than adhering to the sort of firm separation of faith and politics which has customarily been associated with secularism sensu stricto, Turkish policy-makers characterised the newly established Republic’s official policy as one of laicism, this being understood to consist of ‘certain political power relations that institutionally connect and interpretively implicate the state in religious matters’ (Davison, Reference Davison1998, p. 184, also 153–54).Footnote ¹⁵ Whatever the precise extent of Gökalp’s influence over the Kemalist intelligentsia, though, his bifurcated account of Turkish modernity, grounded in a sociology which sought to activate positivism’s counter-hegemonic potential for a programme of ‘defensive Westernisation’,Footnote ¹⁶ provides an ideal framework within which to explicate the processes through which Western legal norms came to be adapted by, and eventually absorbed into, the Turkish nationalist imaginary.Footnote ¹⁷

So much for the first, and structurally broadest, mode of gendered identity in early republican Turkey – namely, the drawing of a macro-level distinction between the ‘masculine’ character of the state and the ‘feminine’ nature of society, the former associated with the authoritarian, top-down dimensions of Kemalist developmentalism and the latter linked to the residual strength of ‘tradition’, an abiding source of solidarity ‘from below’. In addition to this first mode, however, is another, arguably even more intrusive, sense in which gender can be said to have underpinned the normative infrastructure of Kemalist ideology. Somewhat less visible perhaps, yet no less pervasive on that account, this relates to the techniques through which the competing claims of ‘culture’ and ‘civilisation’ were brought to bear upon the process of fashioning the emancipated but ‘respectable’ woman of the Republic. Embodying the intelligentsia’s vision of a territorially consolidated, militarily confident and economically self-standing nation-state, this model was meant to arm the new Republic with thoroughly Western credentials and a rightful place in what Woodrow Wilson and most other Western statesmen of the time, following the parlance common to nineteenth-century diplomats and international lawyers (e.g. Koskenniemi, Reference Koskenniemi2001, chapter 2; Anghie, Reference Anghie2005, chapter 2), continued to refer to as the ‘family of civilized nations’ (Keene, Reference keene2002, pp. 128–29; Manela, Reference Manela2007, chapter 1).

Consider, for instance, the following statement made by Kemal himself before the students and faculty of a female teachers’ college in October 1925:

Note the striking admixture of ‘modern’ and ‘traditional’ imagery here. On the one hand, Kemal voices a desire to release ‘the Turkish woman’ from the ‘misery’ to which she has historically been condemned, understandably yet overhastily replicating the orientalist conflation of local practice with oppression in order to bolster his general call for systemic reform. On the other hand, he deliberately inserts considerations of morality and fertility into his characterisation of ‘the Turkish woman’, surreptitiously making room for the maintenance of Islamic conventions of personal modesty and Mediterranean forms of patrilineal kinship.Footnote ¹⁹ The combination of these two manoeuvres provides Kemal with an opportunity to flaunt his regime’s progressivism while conserving a variety of politically functional customs, saddling ‘the Turkish woman’ with the responsibility of satisfying significantly heightened standards of professional self-realisation so as to win respect as the ‘world’s most enlightened’ without abandoning her role as the guarantor of social cohesion, custodian of public morality and nurturer of future generations.Footnote ²⁰ Indeed, while both men and women were expected to be industrious, willing and able to set aside personal and even familial gain for the sake of ensuring the nation’s preservation and prosperity,Footnote ²¹ it was principally in – or, to be more precise, through – women that Kemalism advanced its claim to universal ‘civilisation’ while retaining its hold on a particular ‘culture’ (Göle, Reference Göle1991, pp. 97–98; Kandiyoti, 1989, p. 143). Such was the ideological significance accorded to ‘the Turkish woman’ and her programmatic reconstitution, in fact, that one scholar has gone as far as to state that ‘the notion of female modesty – that is, the traditional values of virginity before marriage, fidelity of the wife, and a particular public comportment and dress – was carried over with an even heavier emotional load to the new generations of Kemalist women and became the basic theme of the “new morality” for the Kemalist elite’ (Durakbaşa, Reference Durakbaşa and Arat1998, p. 148, emphasis mine). In a society as thoroughly imbued with norms of privacy and seclusion as that inherited by the founders of the Republic, discouraging the wearing of veils and headscarves, even if through mostly non-legal means (Aktaş, Reference Aktaş2006, chapters 6 and 7), could not help but generate other, less explicit but no less invasive, practices of maintaining distance and safeguarding ‘honour’ – all the more difficult to master and deploy effectively on account of their novelty.Footnote ²²

Kemalism’s ambivalence in regard to women also revealed itself in the manner in which it sought to guarantee their political loyalty while restricting their capacity for effective mobilisation.Footnote ²³ Efforts to organise women received considerable support during the Turkish War of Independence, when large numbers of women established militias and co-operative associations for the purpose of participating in armed conflict, providing shelter to refugees and staging protests against the Greek occupation of Izmir and western Anatolia (Kaplan, Reference Kaplan1996).Footnote ²⁴ Early republican intellectuals – women and men – made a point of listing the ‘heroism’ and ‘patriotism’ demonstrated by Turkish women during the war among the factors militating in favour of enlarging their civil and political rights and freedoms.Footnote ²⁵ Even so, public authorities refused to authorise the formation of the Women’s People’s Party (Kadınlar Halk Fırkası) and eventually shut down the Turkish Women’s Union (Türk Kadınlar Birliği). The former, which took place in 1923, followed from anxieties that permitting the creation of a viable rival to the bureaucratic elite’s yet to be formally founded Republican People’s Party (Cumhuriyet Halk Fırkası) would endanger national unity (Toprak, Reference Toprak1988, p. 159). Fears that a broad-based women’s movement in pursuit of stronger entitlements would provoke a backlash in the provinces, hardly uncommon in the early 1920s,Footnote ²⁶ likely played a role here. But the Kemalists’ principal concerns undoubtedly stemmed from their desire to maintain control over ‘the Turkish woman’s’ emancipation, a project they saw as being of great value for their general ‘modernisation’ agenda (Zihnioğlu, 2003, pp. 147–49). As for the latter, it is enough simply to note that the Union’s closure occurred mere weeks after it had hosted the Twelfth Congress of the International Alliance of Women for Suffrage and Equal Citizenship in 1935, at which the majority of delegates voiced their support for international peace and disarmament, an uncomfortably subversive position to adopt in a country unprepared to jettison its ties to Italy and Germany during the interbellum (Kandiyoti, 1991, pp. 41–42). Once again, the state, having ‘appropriated the role of “feminist”’ (van Os, Reference Van Os2005, p. 468), was unwilling to countenance significant deviations from its vision of progressive ‘womanhood’, a vision whose parameters it patrolled with remarkable diligence in an attempt to effect a controlled emancipation of women. Assertive but ever-faithful, ambitious yet self-sacrificing, ‘the Turkish woman’ was expected to be sufficiently ‘modern’ in appearance and comportment to be presented before bourgeois European audiences, though not so divorced from the prevailing customs of her native land that she would succumb to the temptations of an individualistic and interventionist West.Footnote ²⁷

To summarise, then, Kemalism’s pouvoir constituant can be said to have been operationalised in accordance with a double logic of gender, one laying the groundwork for the internal relationship between state and society and the other inserting itself into the interstices of ‘the Turkish woman’s’ day-to-day experience. It is undeniable that efforts to locate and track dominant logics of this sort can often belie appreciation of the myriad rhetorical and libidinal relations which structure ‘nation-building’ projects of the kind undertaken by the Kemalists, sidelining a number of other dynamics which, though perhaps less noticeable, remain quite powerful in their own right.Footnote ²⁸ This does little, however, to change the fact that some imaginaries command significantly greater weight than others, meriting closer attention on account of their ability to discipline social and political relations to a degree unmatched by any of their rivals.

The technocracy of a mediated ‘reception’

Having canvassed the mechanisms through which gender informed the distinction between ‘culture’ and ‘civilisation’ from which Kemalist ideology derived much of its normative weight, I turn now to the ‘reception’ of the Swiss Civil Code of 1907, arguably the most significant and wide-ranging legal reform of the period. The immediate antecedents of the ‘reception’ are illuminating. Through a lengthy process of translation and redrafting, a committee of twenty-six jurists set about crafting a Turkish Civil Code on the model of the Swiss Civil Code. The Swiss was chosen over its French, German and other counterparts on account of its perceived status as ‘the best, easiest to comprehend, most democratic, and most practical’ of its kind, a characterisation offered by Mahmut Esat himself (quoted in Bozkurt, Reference Bozkurt1996, p. 191, translation mine).Footnote ²⁹ The effective outcome of this process was the abrogation of the Mecelle-i Ahkâm-ı Adliye, or simply Mecelle in short (Kaşıkçı, Reference Kaşikçi1997, p. 387). Itself the result of a prolonged effort to codify the Islamic law on contracts, obligations and civil procedure (though not, importantly, family and inheritance law) undertaken during the third quarter of the nineteenth century,Footnote ³⁰ the Mecelle had been introduced into the Ottoman legal order largely with a view to enhancing adjudicative efficiency, satisfying some of the demands of the ulema, and countering calls from some quarters for the promulgation of the Code Napoléon.Footnote ³¹ Just as the abolition of the caliphate in March 1924 had the effect of destabilising entrenched regimes of public legitimation, the entry into force of the Turkish Civil Code on 4 October 1926 displaced the legal system enshrined in the Mecelle, generating systemic disturbances that would both alienate and galvanise for decades to come.Footnote ³² Even so, neither the legal norms underpinning the Mecelle nor the broader canon of Islamic law from which it drew, were, as has often been assumed, eradicated tout court.

The Turkish Civil Code’s revolutionary reputation follows chiefly from five developments. First, the Code outlawed all forms of polygyny, thereby eliminating the conventional Sharī‘a doctrine allowing men to marry as many as four women so long as they are willing and able to treat them equally (Liebesny, Reference Liebesny1975, p. 129).Footnote ³³ Second, the procedural mechanics of marriage underwent substantial modification, with a Western-style civil ceremony replacing an imam-guided nikah as the officially sanctioned method. Third, inheritance was altered so as to accord women equal status with men. Fourth, the principle of gender equality was extended to divorce, with the doctrine of unilateral repudiation (talak), according to which divorce is granted automatically on the occasion of the wife’s third rejection by her husband (Schacht, Reference Schacht1964, pp. 163–64; Nasir, Reference Nasir2002, pp. 106–115), being replaced with a judicially supervised procedure. Fifth, marriage was no longer restricted to members of the same religion, as had previously been the case. It is undeniable that some of these developments and their attendants were prefigured in a variety of earlier measures, the most significant of which was the short-lived ‘Law of Family Rights’ (Hukuk-ı Aile Kararnamesi) of 25 October 1917, a late Ottoman effort to codify family law that would subsequently be seen as ‘a timid move towards secularisation under precarious conditions’ (Kandiyoti, 1991, p. 37; also 1995, p. 311). It remains the case, though, that it was not until the Turkish Civil Code that the state came to extend its full regulatory powers over gender relations and familial structures (Saktanber, Reference Saktanber and İnsel2001, p. 326).Footnote ³⁴

None of this, of course, should be taken as a suggestion that the Swiss Civil Code was a supremely liberatory document. On the contrary, even a cursory glance at the Swiss text suffices to deflate such sentiments rather quickly, and this in spite of the fact that it was in its day regarded as one of the most progressive of all civil codes. Article 160 established the husband as the chef of the conjugal union and accorded him the right to select the matrimonial home.Footnote ³⁵ Article 161 stated that it is the wife’s duty to aid and counsel her husband ‘en vue de la prospérité commune’. Articles 162 and 163 supplied the husband with the right to represent the conjugal union, according the wife such representational authority only ‘pour les besoins courants du ménage’. Article 164 stripped the wife of this right where she ‘abuse de son droit de représenter l’union conjugale ou est incapable de l’exercer’. Article 167 made her capacity to engage in a trade or profession contingent upon the husband’s ‘consentement exprès ou tacite’, giving courts the residual power to authorise such activity in the event that the husband refused to provide his consent only insofar as she were able to prove that it ‘est commandée par l’intérêt de l’union conjugale ou de la famille’.Footnote ³⁶ These provisions, characteristic of the kind of gender inequality which ‘pervaded all Western legal and social systems’ during this period (Arat, Reference Arat, Göçek and Balaghi1994, p. 63), were replicated in the Turkish Civil Code (Arat, Reference Arat, Bozdoğan and Kasaba1997, pp. 105–106) – a move made all the more problematic in the light of the 1924 Constitution, which had enshrined the formal equality of all citizens, thereby giving rise to an awkward discontinuity between the constitutional parameters of the state’s newly established juridico–political order and the concrete legal provisions that governed relations between men and women (Sirman, 2005, p. 158; Tanör, Reference Tanör2006, pp. 308–312). The key point here, though, is that they were derived directly from the Swiss text.

Such points notwithstanding, contemporaneous observers of Kemalist Turkey were inclined to view the reforms brought about by the Turkish Civil Code as key elements in the wide-ranging processes of Westernisation then in full swing (e.g. Ostrorog, Reference Ostrorog1927, chapter 3; Jameson, 1935–36, pp. 482–84). The Code’s reconfiguration of the legal status of women was, of course, central to the cultivation of this image. To take one example, an American jurist with experience in mandate-era Palestine argued that with ‘the adoption of that new Code, the Turkish woman has suddenly been released from the authority of an ancient Oriental system of law, entirely subversive of women’s rights, and placed under the sway of one of the most modern laws of Europe and one which knows no legal discrimination between the sexes’ (Frumkin, Reference Frumkin1928, p. 197, emphases mine).Footnote ³⁷ Reactions of this sort were by no means restricted to foreign commentators. Indeed, such was the incongruence between the aspirations of the more ambitious elements of the Turkish Civil Code and the conditions to which they were to apply that Hıfzı Veldet Velidedeoğlu, a prominent lawyer and expositor of the reforms, felt a need to have recourse to the language of ‘radicalism’ and ‘conservatism’ when attempting to distinguish between the new Code and its Swiss progenitor. While the Swiss Code ‘a surgi essentiellement sur les bases du droit national du peuple suisse’, Velidedeoğlu observed, the Turkish text did not conform to ‘le droit national, religieux, coutumier’ of those for whom it was intended, and therefore had to be understood as endowed with ‘un caractère révolutionnaire’ (1961, p. 35; and, similarly, 1944, p. 400). Thus, unlike the promulgation of the Mecelle, a defeat for those in the late Ottoman reform movement who had pressed for the adoption of the Code Napoléon (Üçok, Reference Üçok1946, p. 146), the enactment of the Turkish Civil Code was widely viewed – domestically no less than internationally – as an indication of Turkey’s long-awaited ‘coming of age’, its readiness to dispense with its past and embrace the challenges and opportunities of ‘contemporary civilisation’.

Laying such heavy-handedness aside, there is considerable controversy regarding the extent to which the sort of Gesellschaft with which the Turkish Civil Code has been associated can be said to have actually displaced the Gemeinschaft presupposed by Islamic and customary law. For one thing, there is clearly a sense in which the 1926 Code harboured a number of different approaches to the ‘woman question’. In a groundbreaking analysis, Miller has demonstrated that the committee responsible for drafting the Turkish Civil Code sought ‘to place Turkey conceptually and definitionally within “the great civilized familial bloc”, while producing a text which would cause as little popular discontent as possible and interfere as little as possible with the actual lives of the people’ (2000, pp. 356–57). In fact, according to her calculations, no more than 65 percent of the provisions in the 1926 Code may be said to constitute verbatim translations of their Swiss counterparts, the remaining 35 percent being characterised by varying levels of hybridity (2000, p. 361). While the significance of empirical analyses of this sort can often be exaggerated, the conspicuously ‘loose’ character of the translation of a large number of the Swiss text’s provisions goes a long way to problematising the claim that the Turkish Code consisted of nothing more than a relatively straightforward, one-to-one ‘legal transplant’. To take but one of Miller’s comparative analyses, consider the provisions concerning abandonment, one of the six preconditions for divorce, in the two texts – Article 140 in the Swiss and Article 132 in the Turkish Codes respectively. The Swiss provision begins by stating that ‘chacun des époux peut demander le divorce pour cause d’abandon malicieux ou lorsque, sans de justes motifs, son conjoint ne réintègre pas le domicile conjugal; à la condition toutefois que l’abandon ait duré au moins deux ans et n’ait pas pris fin’. In all such cases, a judge may warn the spouse in question to return within a six-month period. The Turkish text, on the other hand, states that ‘either the wife or the husband can open a case for divorce, if the other leaves with the intention of not executing the duties which he or she undertook with marriage, or if without good reason, the other does not return to the house, and the separation lasts at least three months without ending’.Footnote ³⁸ In this case, a warning may be issued to return within a single month. As Miller notes perspicaciously, the insertion of the requirement of ‘executing the duties’ of marriage in the Turkish text is meant, among other things, to preserve the Sharī‘a ban on oaths of abstinence exceeding four months in duration, with the four-month stipulation (the combination of the three-month waiting period and the judge’s month-long warning) following directly from Islamic law (2000, pp. 352–53). It is telling that Velidedeoğlu referred to the discrepancy between the two waiting periods as an ‘involontaire’, even ‘nécessaire’, modification, one resulting from the ‘différences religieuses, sociales et économiques’ between Switzerland and Turkey (1956, p. 110).Footnote ³⁹ Again, then, while the Turkish Civil Code generally duplicates the skeletal edifice of its Swiss parent, mirroring its definitional sections with greater or lesser consistency, significant variations exist between their practical articles, with the drafting committee often going out of its way to adapt the Swiss original to prevailing Ottoman-Islamic legal norms.Footnote ⁴⁰

Many commentators have sought to downplay the importance of such differences. A typical case is that of Georges Sauser-Hall, the Swiss jurist who served as legal adviser to the Turkish government during the first years of the Republic. Though he would concede that the Turkish text betrayed ‘quelques réserves’ (1926, p. 33), Sauser-Hall would nonetheless go on to state that these modifications ‘n’offrent rien qui déroge sur des points essentiels au code civil suisse: l’esprit, l’ordonnance, le texte de ce dernier ont été respectés’ (1926, p. 34). Similarly, Velidedeoğlu sprinkled his lectures on the legal aspects of marriage and divorce in the new Republic with seemingly innocuous observations to the effect that those in the audience would naturally be aware that the Turkish Civil Code had been ‘taken from the Swiss Civil Code with some small changes’ (1938, p. 20, translation and emphasis mine). Still, the pertinence of these differences is evident enough to anyone prepared to take a fresh look at the texts themselves, rather than simply reciting well-worn platitudes about the (ostensibly ‘world-historical’) distinctiveness of Turkey’s supposedly all-encompassing ‘reception’ of the Swiss Civil Code. Fındıkoğlu clearly went too far when suggesting that the Turkish Civil Code ‘peut être envisagé comme l’application la plus fidèle et la plus proche de la théorie gökalpienne’ (1936, p. 68). Yet this attempt to ‘modernise’ (or ‘civilise’, in Gökalp’s preferred terminology) gender relations and familial structures while preserving some of the most deep-seated aspects of ‘traditional’ Turkish society (the core constituents of its ‘culture’, so to speak) reflects the Kemalists’ willingness to hedge their programmatic radicalism so as to accommodate countervailing concerns among sensitive and strategically critical groups. There is much to be said for the claim that the Turkish Civil Code did not comprise as direct an assault on existing gender dynamics as has often been suggested (Saktanber, Reference Saktanber and İnsel2001, p. 326).

Not surprisingly, such textual ambiguities were reflected in significant class differentials and regional disparities in the Code’s application. Anthropological studies conducted in a handful of comparatively isolated villages during the late 1960s and early 1970s suggested that the Turkish Civil Code had succeeded in penetrating non-urban environments, gradually altering many women’s expectations of marriage, divorce and inheritance. Starr and Pool argued that ‘the Turkish legal revolution is a revolution in more than form’, observing that ‘women, possibly the most traditionally deprived group of all, are increasingly turning to the court to redress at least some of their grievances’ (1974, p. 554).Footnote ⁴¹ Likewise, Magnarella wrote that ‘the social norms prescribed by Turkey’s new family law are gaining wide acceptance’, with many villagers viewing ‘the marriage of their daughters without a civil ceremony as a form of disfranchisement’ (1973, p. 113). However, some researchers have argued that the introduction of the Turkish Civil Code had nothing more than a superficial effect on marriage practices in many rural areas, where many simply circumnavigated the civil ceremony and minimal age requirements by avoiding official registration and opting for clandestine nikah marriages (e.g. Duben, Reference Duben and Erder1985, p. 122; Yılmaz, Reference Yilmaz2005, pp. 106–110). While often overdrawn, such arguments are fortified by the fact that parliamentary authorities would feel compelled to reduce the age of marriage from eighteen to seventeen in the case of men and from seventeen to fifteen in that of women – and, under exceptional circumstances, to fifteen and fourteen respectively – as early as 1938 (Velidedeoğlu, Reference Velidedeoğlu1957, p. 63).Footnote ⁴² Even more revealing is the fact that no less than six pieces of amnesty legislation would need to be passed following the Code’s entry into force in order to ensure that children born to couples who had been unwilling or unable to undergo a civil union would be registered through official channels. Versan puts the total number of children who were ‘rendered legitimate’ through the first such law, which entered into force in 1933, at 764,564 (1984, p. 250); and this, combined with the following four amnesties, is reported to have been responsible for the registration of 2,730,937 marriages and 10,000,272 births between the years 1933 and 1970 (Zwahlen, Reference Zwahlen1981, p. 78).Footnote ⁴³ Indeed, it is a point of some significance that one leftist commentator writing on the fifteenth anniversary of the Code’s introduction would argue that some two hundred of its provisions, particularly those relating to property and inheritance rights, had ‘no local application’ whatsoever (Aydıner, Reference Aydiner1941, p. 5, translation mine). Being a properly ‘revolutionary nation’, he went on to argue, Turkey should hesitate to disregard those aspects of the Turkish Civil Code which failed to accord with the character of its society no more than it had hesitated to slough off the Mecelle when it became apparent that it no longer satisfied its needs (p. 8, translation mine).

Whatever the value of such generalisations, it is undeniable, and hardly surprising, that significant variations existed in the speed, rigour and evenness with which everyday life came to be modified in the light of the Turkish Civil Code, with the bureaucracy and proto-bourgeoisie constantly ‘outpacing’ the peasantry by a wide margin.Footnote ⁴⁴ The Code had been introduced partly with the aim of diluting provincial customs and eviscerating regional discrepancies in legal practice so as to suppress Kadijustiz and build the centralised, ‘classless’ nation-state envisioned by most Kemalists (Keyder, Reference Keyder1987, p. 89),Footnote ⁴⁵ with Esat going out of his way to ground it in the need for ‘providing and satisfying at any cost the political, social, economic, and national unity’ of the new Republic.Footnote ⁴⁶ Understandably, though, such formal uniformity elided a considerable measure of substantive heterogeneity, manifesting itself in interregional disparities in interpretation, application and enforcement. This clearly served the interests of the Kemalists, whose desire to effect broad-based reform, though always militant and premised on the marginalisation of ‘religion’ more and more steadily after 1924 (Yıldız, Reference Yildiz2001, pp. 16, 101–102), did not go so far as to compel them to throw their weight behind initiatives that would have threatened to erode their populist appeal even further by galvanising peripheral forces already incensed at the abolition of the caliphate.Footnote ⁴⁷ Again, then, Gökalp’s gendered distinction between ‘culture’ and ‘civilisation’ provides the general framework within which Kemalism’s politics are enacted: ‘culture’ is controlled, channelled and co-ordinated in accordance with the directives of ‘civilisation’, given free rein only within the latter’s systemic boundaries.

Before and after Lausanne: imperialism, resistance and the Egyptian analogue

As already mentioned, the introduction of the Turkish Civil Code owed much to the Turkish nationalists’ commitment to secure legal recognition for the termination of the Ottoman capitulatory regime.Footnote ⁴⁸ Initially, the capitulatory agreements had simply reflected the sultan’s desire to establish and maintain close ties with the Empire’s trading partners and political allies, each agreement amounting to little more than a unilateral pledge or guarantee (ahdname) to the effect that nationals and affiliates of a friendly non-Muslim state would be permitted to reside or travel in Ottoman territory.Footnote ⁴⁹ With the generalised reconfiguration of Mediterranean political dynamics that marked the eighteenth century, however, they came to be employed as means of furthering and shielding European penetration into the Ottoman Near and Middle East, not infrequently through the promotion of secessionist nationalisms among the Empire’s constituent ethnocultural communities.Footnote ⁵⁰

It comes as no surprise that the capitulations should eventually have raised the ire of the Ottoman Empire’s Turkish-Muslim ruling class. The Committee of Union and Progress, the last organised force to govern the Empire and the Kemalists’ political (and, in many respects, ideological) precursors,Footnote ⁵¹ had moved to abrogate them unilaterally in October 1914 as part of a wider attempt to secure the Empire’s politico-economic autonomy and undermine the Allied war effort (Sousa, Reference Sousa1933, pp. 189–90; Shaw and Shaw, Reference Shaw and Shaw1977, p. 312). This, however, had fallen on deaf ears, attracting formal recognition from none of the states with which the Empire maintained capitulatory agreements save for Germany and Austria-Hungary (Rechid, Reference Rechid1933, pp. 180–82; Sousa, Reference Sousa1933, pp. 195–96; Bentwich, Reference Bentwich1923, p. 183). Those sympathetic to Turkish nationalism therefore had to wait until the Conference of Lausanne to see their ambition of doing away with the capitulatory regime through to its ultimate conclusion. Indeed, Article 39 of the Lausanne Treaty of Peace called on Turkey to furnish its non-Muslim citizens – a designation understood to apply more or less exclusively to Greeks, Armenians and Jews, the Ottoman Empire’s three main non-Muslim ‘nations’ (milletler)Footnote ⁵² – with all of the civil and political entitlements of its Muslim citizens, stating flatly that ‘all the inhabitants of Turkey, without distinction of religion, shall be equal before the law’. It was only by allowing this and related provisions to be inserted into the treaty’s text, and thereby paving the way for the construction of a Western legal system acceptable to non-Muslim citizens of the new Republic (e.g. Akgönül, Reference Akgönül and Ceylan Gürman2007, pp. 53–61, 69; Nadolski, Reference Nadolski1977, pp. 526–28), that Turkish diplomats were able to obtain the decisive abolition of the capitulatory regime, enshrined in Article 28’s declaration that the peace treaty marked ‘the complete abolition of the capitulations in Turkey in every respect’. This had the effect of stripping the Allied Powers of the extra-territorial jurisdiction they had enjoyed vis-à-vis their own nationals and ‘protégés’ by virtue of the capitulatory regime.

The Turkish Civil Code’s promulgation must not, then, be viewed as a wholly spontaneous decision undertaken on the part of an uncompromisingly sovereign nation-state, but, to put it somewhat classically, as a ‘choice’ that was made under conditions of substantial ‘constraint’, if not necessarily outright ‘coercion’ – a ‘choice’, that is, in which the newly established Republic, as aggressively reformist and independently minded as it was, found itself confronted with a limited set of viable options.Footnote ⁵³ As Esat himself put it, when setting out the justifications for the Swiss Civil Code’s ‘importation’:

To be sure, as has already been mentioned, that the Swiss Civil Code’s translation was not nearly as ‘faithful’ as it might have been testifies both to the Kemalists’ commitment to avoiding a purely derivative reproduction of the West and to their desire to modify some of its more sensitive provisions in the light of prevailing patterns of behaviour.Footnote ⁵⁵ And the fact that the Turkish Civil Code’s progenitor had proven functional in a country marked by as much pluralism as multi-cantonal Switzerland did, of course, go some distance to reassuring the Kemalists of its utility for facilitating the consolidation of ‘the Turkish nation’.Footnote ⁵⁶ Turkish authorities undertook the ‘reception’ aware of (at least most of) the difficulties. The fact remains, though, that Article 39 of the Peace Treaty, and Articles 37 to 44 more generally, left the Kemalist elite with few alternatives to submitting the socio-legal infrastructure of their newly established state to systemic revision along Western lines. Seeing as how the ‘Treaty of Lausanne imposed upon Turkey the obligation to provide for non-Turkish minorities an adequate modern legal system’, it was clear that ‘a general legal reform’ would satisfy ‘this obligation without appearing as a slavish compliance with the Treaty’ (Lipstein, Reference Lipstein1957, p. 73).Footnote ⁵⁷

Consider, by way of comparison, the social and political context of the Egyptian Civil Code of 1949, the first and most influential piece of legislation of its kind in the Arab world. Unlike Ottoman Turkey, which had long had to respond to external pressures but which managed to avoid direct incorporation into European imperial orders by shifting its alliances and launching a variety of internal reforms, Egypt – nominally bound to Istanbul but effectively autonomous after Muhammad AliFootnote ⁵⁸ – succumbed to the politico-economic influence of France and Britain in the latter half of the nineteenth century after falling heavily into debt. Though the Sublime Porte maintained suzerainty until the Empire’s final dissolution, Egypt remained an object of European designs well into the twentieth century, frequently serving as a testing ground for modernist programmes of ‘order and progress’.Footnote ⁵⁹ The expressly juridical dimensions of these processes manifested themselves with greatest force in the establishment in the nineteenth century of a robust network of mixed courts administered mainly by European officials and wielding jurisdiction over disputes involving foreign parties in a number of areas.Footnote ⁶⁰

Many of these differences were reflected in the text of the Egyptian Civil Code. Shalakany has argued that the Egyptian Code, the product of collaboration between ‘Abd al-Razzāq al-Sanhūrī, the French-educated Egyptian lawyer, and Edouard Lambert, the sociologically minded French comparativist, involved a considerable degree of textual and normative hybridity. The general project to which the two jurists committed themselves was one in which the desire to ‘socialize modern law’ was made to confront, and in a number of important respects coincide with, the felt need to ‘modernize Islamic law’ (2001a, pp. 172–73, 176). According to Shalakany, Sanhūrī sought to reconcile his commitment to a socialised reconfiguration of nineteenth-century Western private law with his desire to ‘re-open the gates of ijtihād’ so as to re-galvanise what he regarded as a deeply ossified Sharī‘a,Footnote ⁶¹ attempting to negotiate between the (economically driven) liberalism of ‘the West’ and the (socially grounded) communitarianism of ‘the East’ (2001a, pp. 176–77, 181–82). The result was a strikingly multifaceted fusion of rival norms – some borrowed from European civilian traditions, others boasting deep roots in Islamic jurisprudence and still others marshalled on the basis of Egyptian case-law. Of particular interest for Shalakany is Sanhūrī’s insistence on appending a modified version of Article 1 of the Swiss Civil Code to the beginning of his own Code. Stating that ‘à défaut d’une disposition légale applicable, le juge prononce selon le droit coutumier et, à défaut d’une coutume, selon les règles qu’il établirait s’il avait à faire acte de législateur’, the Swiss provision accorded considerable authority to the judiciary in cases of textual silence or under-determination. This agreed with Sanhūrī’s anti-formalism, and it also provided him with an opportunity to position Islamic law as one of the sources from which judges would need to draw when faced with a sufficiently large lacuna in the Code’s text (Shalakany, Reference Shalakany and Riles2001b, pp. 225, 233). Indeed, Article 1 of the Egyptian Civil Code explained that judges must make use of custom, then Islamic law and finally ‘the principles of natural law and the rules of equity’ if no provisions pertaining to the issue at hand could be located.Footnote ⁶²

Even though Sanhūrī was at pains to underscore that the fundamental principles of the new Code should remain paramount in all cases where Islamic legal norms were brought within the fold of legal reasoning,Footnote ⁶³ it cannot be denied that this was a noticeably different provision from that which headed the Turkish Civil Code. Following its Swiss parent to a greater degree, Article 1 of the Turkish Code required judges facing predicaments of the sort just outlined to have recourse first to ‘customs and traditions’ and only then to the rule which they would have deemed appropriate for the adjudication of the dispute in question had they in fact been the legislator.Footnote ⁶⁴ It is true that this provision’s flexibility has played a key role in the Turkish judiciary’s attempt to navigate between official Turkish law and the various ‘traditional’ practices against which such law has been set (Örücü, Reference Örücü2008, p. 43), not infrequently serving as a vehicle for reliance on Islamic or quasi-Islamic legal rules in the process. But the absence of an explicit reference to Islamic law in its text, and the inclusion of an additional clause requiring judges to marshal ‘scientific opinions’ when preparing their judgments, are in no way unimportant here. In fact, Velidedeoğlu was of the view that the Turkish Civil Code’s chances of being internalised comprehensively were related to the Turkish judiciary’s willingness and ability to draw upon Article 1’s ‘elastic character’ in order to develop an autonomous Turkish civilian tradition (1944, p. 405, translation mine). For all their own reservations and adaptations, Esat and his committee were far less given to eclecticism, far less averse to having their text track that of its European counterpart, than Sanhūrī.

If those responsible for preparing the Turkish Code regarded themselves as laicist positivists with a decidedly strategic approach to the deployment of Sharī‘a, which they sought to recalibrate and tether to their broader ‘nation-building’ project, those behind the Egyptian Code aspired to realise the ideal of a dialogical cross-pollination between Islamic and Western law within a distinctly post-colonial environment.Footnote ⁶⁵ Sanhūrī regarded himself as performing the double role of progressive theorist of Western law and reformist advocate of Islamic law, setting out to combine ‘modern Western codes, the decisions of the Egyptian tribunals since the reforms of the late-nineteenth century, and Islamic law’ (Liebesny, Reference Liebesny1953, p. 499). Esat and his committee, on the other hand, made a point of preserving only those Ottoman-Islamic legal norms that were important enough to be strategically valuable for maintaining those practices which they saw as either resistant to immediate eradication or instrumentally relevant to their ‘civilising mission’. Both Codes were clearly designed with an eye to integrating ‘culture’ and ‘civilisation’, a mediatory logic illustrated by their reluctance to do away with all facets of Islamic family law, one area which, unlike commercial law, had long been exempt from codification processes of the type exemplified by the Mecelle (Emon, Reference Emon2006, p. 349). And since both were rooted to some extent in a desire to maximise the agency of actors operating in contexts the structural parameters of which were defined in part by powerful external forces, the role of ‘ambitious, centralizing elites’ determined ‘to stave off further Western penetration’ through legal ‘modernization’ clearly cannot be underestimated here (Brown, Reference Brown1995, p. 106). The Egyptian Code, however, granted a far greater level of explicit influence to customary and Islamic law than its Turkish counterpart, a fact which, among other things, testifies to the presence of significant differences in the ideological trajectories of the two countries’ national elites.Footnote ⁶⁶

Conclusion

Comparative legal scholars have long debated the nature – indeed, the very possibility – of ‘legal transplants’. Watson, for one, is infamous for having argued that ‘transplanting is, in fact, the most fertile source of development’, the majority of changes to legal systems being ‘the result of borrowing’ of one kind or another (1974, p. 95). Consisting of the movement of specific rules and doctrines ‘from one country to another, or from one people to another’, such ‘transplants’ are ‘socially easy’ and have been ‘common since the earliest recorded history’, each ‘transplant’s’ viability being contingent on no more than its capacity to ‘grow in…and become part of’ its receiving ‘body’ (1974, pp. 21, 27, 95).Footnote ⁶⁷ In response, Legrand, Watson’s most vociferous critic, has deployed hermeneutics and deconstruction to argue that no such ‘transplants’ are actually feasible, every legal rule and doctrine being inextricable from the pragmatic and interpretive fields in which it is always already embedded and on the basis of which it comes to be endowed with meaning. Wrenched out of its enunciatory context and thrown into an alien environment, an environment with which neither it nor the sociolinguistic self-understanding responsible for its generation and dissemination shares a thick bond, not even the most ‘natural’ or ‘self-evident’ rule is capable of retaining – or so, at least, goes the argument – its sense and relevance.Footnote ⁶⁸

Both positions boast formidable pedigrees.Footnote ⁶⁹ And both are clearly problematic. The one tends to present entire codes as detachable from their operational milieux and amenable to potentially limitless transmission; the other seeks to fasten even the most marginal and easily isolatable legal rules to the sociolinguistic systems from which they first come to emerge.Footnote ⁷⁰ As a result, my aim here has not been to establish that the Turkish Civil Code marked a decisive break with the Ottoman-Islamic legal tradition, rupturing the continuity of Turkish-Muslim social history so crisply and irreversibly as to provide a wholly ‘unique example of the complete passage from one legal family to another’, one in which ‘the bases of the old legal system were totally destroyed’ (Örücü, Reference Örücü, Mommsen and de Moor1992, pp. 53–54). Nor, for that matter, has my intention been to demonstrate that the Turkish Civil Code was condemned to failure from the very outset, the ‘incommensurable difference’ of the Turkish ‘Other’ resisting dilution at the hands of even the subtlest and most penetrating juridical influences. Rather, the principal objective of my analysis has been to locate the techniques through which internal and external pressures of various kinds combined to generate a text which remained faithful to the Kemalists’ commitment to drawing upon the ‘civilising’ power of Western law while permitting, albeit in a somewhat piecemeal manner and for predominantly tactical reasons, the continuing ‘cultural’ pertinence of certain Ottoman-Islamic legal norms. In other words, my aim has been neither to ‘celebrate’ Turkey’s ‘transplantation’ of the Swiss Civil Code nor to deny that such ‘transplantation’ has in some sense occurred, but to uncover and elucidate the power dynamics responsible for it with a view to illuminating both the structural constraints within which the process unfolded and the agency exercised by Turkish officials during the course of its materialisation. One may adopt an explicitly anti-formalist methodology and distance oneself from Watson’s autonomisation of the legal profession, prioritising sustained engagement with the contexts in which legal doxas are produced and consumed, circulated and exchanged, appropriated and converted. Focusing on what David Kennedy once termed ‘the hand of influence in resistance, misreading and difference’ (2003, p. 144) will always be a crucial feature of such an approach. Yet, this surely does not require one to have recourse to the supposed self-sufficiency of socio-legal ‘worlds’, a position that is nearly always parasitic on one or another variant of the totalising myth of autopoietically entrapped epistemes. It is in this sense that the Turkish Civil Code is best understood as a ‘faithful but autonomous restatement’ of the Swiss Civil Code, an attempt to avoid the twin extremes of ‘strict literalism’ and ‘substantial recreation’ (Langer, Reference Langer2004, pp. 33, and 29–35 generally) so as to restructure gender relations while preserving – and, in select circumstances, securing the further entrenchment of – some of the most sensitive elements of Hanafī Sharī‘a.