The Turkish Republic was established in 1923 on the crumbled foundations of the Ottoman Empire. During the Ottoman era, which lasted from the fifteenth century to World War I, Islam provided Ottoman Muslims a framework of meaning within which to interpret their past and present circumstances and the future directions of their lives. Embodying the ethical basis for thought and behavior in the private realm, Islam constituted the divinely sanctioned jurisprudential basis for law and government. The Ottoman sultan was also the caliph, simultaneously head of state and leader of the Sunni Muslims.
As part of a master plan to create a modern, progressive Turkish state, Mustafa Kemal Ataturk, Turkey's founder and first president, made secularization one of his uncompromising principles. Considering Islam a source of the Ottoman decline, Ataturk launched a bold attempt to create a new national mentality by abolishing the Shari'a (Islamic law) and adopting European legal codes, which he regarded as the epitome of Western civilization.
Legal scholars generally maintain that law responds to existing morals, customs, and traditions; societal change precedes legal change. Ataturk was determined to reverse the equation. He wanted imported Western law to displace Turco-Islamic tradition and thus create a new moral basis for a Western, secular style of life. Did he succeed? In 1955 a group of Turkish and Western scholars addressed this question with respect to Turkey's adoption of Swiss family law and answered with a qualified no. This article reviews their assessment and reexamines the question in the light of more recent evidence.
The traditional Shari'a
Unlike Roman law, which was devised by men and so could be changed openly as circumstances required, the Shari'a is considered God-given and immutable by humans. In theory, the Shari'a was derived from four sources: the Quran, the Sunna (traditions of the Prophet), the consensus of qualified jurists, and analogical deductions from these. In historic fact, the pre-Islamic customary law and administrative practices of the early Islamic states strongly influenced the character of the Shari'a.
Of the four Sunni schools of law, the Hanafi school became the official doctrine of the Ottomans. The Shari'a reigned supreme with no rival codes until the nineteenth century, when the needs for administrative efficiency and economic development along with pressures to appease foreign powers caused the Ottoman authorities to promulgate a series of European, mostly French, codes dealing with commerce, maritime and criminal law, as well as criminal and civil procedure. Family law, however, remained untouched. Being the very heart of the Shari'a, family law represented the area most resistant to external influence.
According to Turco-Islamic practice, parents or guardians had the right to contract marriages for their children or wards. With certain qualifications, marriage by compulsion was acceptable. A woman was bound to monogamy, while a man was permitted up to four wives simultaneously under certain conditions. The husband's authority was superior to that of his wife, and he enjoyed the discretionary right of unilateral repudiation. In matters of inheritance, male kin, especially sons, were favored.
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