Engaging a Fractured Law: Rights, Identities, and Legal Activism in Turkey
Panel 297, 2016 Annual Meeting
On Sunday, November 20 at 2:00 pm
Panel Description
Despite increasing evidence that Turkey's legal system is being undermined by the AK Parti government, Turks continue to turn to law in order to demand the right to life and safety, the freedom of expression, and the right to fair trials. Expropriations of businesses, banks and media outlets, detentions and legal harassment of oppositional voices, and persecutions and dismissals of judicial personnel have all increased, in part made possible by the government's control over judicial appointments and the persistence of specially authorized courts that undermine the justice system's independence. Yet at the same moment that the legal system is under attack by government circles, the legal field--the institutions, associations, and discourses that constitute the "law" broadly defined-- appears as important than ever as a venue for claiming rights, imagining and articulating political demands and identities, and shaping the state itself. In this, current events are not so much exceptional as they are reminiscent of previous periods of Turkish history during which military and civilian state leaders attempted, and often failed, to instrumentalize the law for purposes of political repression.
This panel explores the various ways in which actors on both sides of the state-society divide take part in shaping the legal field and through it, the legal contours, opportunities and identities of both Turkish society and state. The panelists discuss current developments as well as their historical trajectories, exploring the motivations and strategies behind people's engagement with a contentious judiciary and situating them within the longer-term doctrinal, institutional and cultural developments through which these ideas have emerged. Questions we address include: What lies behind the exponential growth in activist lawyers' organizations the last ten years, and how do their members conceptualize the Turkish legal system? To what extent, and how, have Turkish attorneys and their clients been able to take advantage of unfair political trials to end impunity for security forces and bring perpetrators of extrajudicial violence to justice? How has Turkey's penal code, which has long enabled prosecutors to police the boundaries of political activism and speech, been used by ordinary Turks to re-imagine what it means to be Turkish? To what extent is activist lawyering itself contributing to the emergence of alternative, counter-hegemonic forms of political-legal consciousness in Turkey?
With over thirty cause lawyering associations of various sizes, persuasions, and degrees of permanence pursuing issues that range from a right-wing concern with defending the nation to a left-wing desire to overturn the capitalist order, the Turkish landscape of legal activism has never been more diverse than today. This paper is an attempt at making sense of this diversity. I ask: What lies behind Turkey’s variety of cause lawyering associations, and why have these associations particularly flowered under the AK Parti government? How do they position their activism within the resources offered by the Turkish legal field? Do they conceive of the law as an independent juridical order or as a set of legal instruments to be used for political purposes?
To answer these questions I consult archival sources, newspapers and court transcripts reaching back to early 1970s. This material provides grounds for arguing that the surprisingly wide array of lawyering associations in Turkey reflects, not just political causes, but also the fragmentation of Turkey’s legal system and the conception of juridical unity that underlies it. Since the 1970s, Turkish state leaders have repeatedly taken recourse to “parallel” instruments such as exceptional courts and martial law in order to use the legal system for purposes of political repression. In response to this, I argue, activist lawyers have developed associations that differ from each other not just in the core causes they pursue but also in their strategies of activism, ranging from lawyering that stays squarely within the procedural rules of the courtroom to street protest. The diversity of lawyering associations thus reflects both a political spectrum and a fundamental disagreement over how a fragmented legal system such as Turkey’s should be dealt with.
This paper investigates the two-way interaction between the European Court of Human Rights (ECHR) and Kurdish legal activists during the internal armed conflict in the 1990s. While regional courts’ impact on human rights law and practice has been duly acknowledged in the scholarly literature, the ways in which domestic legal activism can transform a regional court need to be explored further. Drawing upon a total of 332 ECHR rulings on the conflict between the Turkish state and the PKK fighters, I argue that Kurdish-issue cases have heightened divisions inside the ECHR, as dissenting opinions have increased dramatically. Furthermore, allegations of torture and disappearances throughout the 1990s have led judges to rethink the political nature of their work: the ECHR has consistently found the Turkish state guilty of violations, but the verdicts have often pointed out procedural failures, thus sidestepping substantive questions about the role of systematic human rights violations as part of military tactics. This procedural focus, instead of avoiding politics, has in fact sharpened the political character of Court rulings.
Between 2008 and 2014 a cascade of domestic trials prosecuting military officials for human rights abuses took place in Turkish courts. These trials were directly related to the shifting of power distribution among elite actors, as uncertainty among legal professionals allowed for previously risky behavior (i.e. the filing of indictments and opening of court proceedings). At the same time, mobilization of the law on behalf of victims of these abuses (Zemans 1983; Epp 1996) has been ongoing since the early 1990s, but has only recently developed into what Halliday et al. (2007) call a legal complex. This intricate network of professionals, from a variety of legal domains, have acted collectively, targeting these human rights abuses, particularly through their submission of amicus curiae briefs to the Turkish Constitutional Court.
This paper presents an analysis of the impact of this legal complex, since 2008 by examine how it has affected the contestation of the state’s hegemonic narrative regarding human rights violations from the 1990s. I draw on the legal complex literature highlighting the role of bar associations, the courts, legal academics, and prosecutors, to analyze the mobilization of law and their impact on versions of the “official truth” (Kovras 2014; Lessa 2013). This research is based on data collected by the author through interviews with actors in the legal complex from each of these specific professions, carried out in Turkey (2014-2016).
Epp, Charles R. 1996. “Do Bills of Rights Matter? The Canadian Charter of
Rights and Freedoms” The American Political Science Review, 90(4): 765-779.
Halliday TC, Karpik L, Feeley MM, eds. 2007. Fighting for Political Freedom:
Comparative Studies of the Legal Complex for Political Change. Oxford: Hart
Lessa, Francesca. 2013. Memory and Transitional Justice in Argentina and
Uruguay. New York: Palgrave Macmillan.
Kovras, Iosif. 2014. Truth Recovery and Transitional Justice: Deferring Human
Rights Issues. New York, NY: Routledge.
Zemans, Frances Kahn. 1983. “Legal Mobilization: The Neglected Role of the
Law in the Political System.” American Political Science Review 77 (3): 690–703.
This study analyzes how Turkish national identity was produced and experienced in everyday life between 1945 and early 1960s through the records found in the archieves of four high penal courts of Istanbul Caglayan Adalet Sarayi. The decision boards of more than 400 cases of political crime have been explored in order to understand alternative imaginings of Turkish nationhood. The cases are related to crimes stated in Articles 141, 142, 158, 159 and 160, such as “insulting Turkishness, state institutions, armed forces or the President and making communist or religious propaganda.” A comprehensive analysis of these case files reveal how ordinary people experience and understand Turkishness and “otherness” in everyday life.
Indeed the available literature on Turkish nationalism has largely concentrated on the official/formal and state side. How the nationalist ideology was instilled in a top-down way through state institutions and laws is the main focus. What is missing in the literature is an analysis of informal/unofficial ways of reproducing Turkish national identity in the realm of everyday life. An analysis of how people interact in everyday life offers a new insight and besides unveils hegemonic narratives of official nationalism. The period between 1945 and early 1960s is the main focus of research since this period witnessed various political and social transformations; such as the transition to multiparty politics, relaxation of law restricting the freedom of press until 1961 military intervention and departure from a long-standing policy of international isolation and neutrality as the result of Cold War politics. Offering multiple imaginations of Turkishness through real-life examples, court cases are valuable sources for discovering everyday expressions of Turkish nationhood in addition to state society interactions that present how people perceive, understand and interpret laws imposed on them by the state.
