This paper traces the emergence of a liberal public in the period following the 1980 military coup in Turkey, defined by its contestation of the foundational elements of Turkish national identity, including the legal codification of Turkishness, and of the authoritarian practices of the Turkish state. Liberal intellectuals, as prominent articulators within this public, established a complex institutional landscape, ranging from publishing houses and newspapers to universities and NGOs, which has enabled new rights claims to be made and new identities to form in the public sphere. Here, liberals engaged with the Kurdish issue, the legitimacy of Islamic actors in the political sphere, as well as challenged the official position on the Armenian genocide of 1915 and argued for the issue’s contemporary political relevance. This struggle to reformulate the basis of the Turkish polity has oftentimes led to legal consequences. This paper investigates three institutionally different attempts by liberal intellectuals seeking to advance a more inclusive and more plural public sphere by engaging with these themes. In what ways did they mobilize the law in their own rhetoric and to what extent did this result in legal repercussions? The first endeavor analyzes the establishment of the political party Yeni Demokrasi Hareketi (New Democracy Movement) in 1994, which propagated a liberal-democratic discourse and advocated political and cultural rights for Kurds and other groups. While it did poorly in the parliamentary elections, it received much public attention since key members were well-connected in media circles and its bold discourse challenged nationalist orthodoxies. The second example is the ‘Minority report affair’ in 2004, a government-commissioned project to formulate a new definition of Turkish citizenship that would transcend the ethnically defined category for which the principal authors of the report were indicted. Finally, the paper investigates the activities of the think tank TESEV and how it has managed to navigate the three fraught issues over the course of two decades. These different forms of public making illuminate how liberals have sought to reformulate and reconstitute the public sphere in relation to Turkish authoritarian nationalism at different times over a 20-year period and attempts to explain the respective legal mobilizations or lack thereof.

What are the prerequisites of a well-functioning public sphere? What are the relations between such a public sphere and “a democratic order”? What is the role and responsibility of journalism and journalists in this regard? These issues constitute a central tenet in the many columns written by one of Turkey’s all-time most prominent editors, columnists, and journalists, Abdi Ipekci (1929-1979) in the crucial decades of the 1960s and 1970s. In context of the history of journalism in Turkey, Ipekci is hailed as a person, who attempted to promote ethical standards, and encourage the conditions for practicing balanced and well-informed journalism in a country, where journalism has traditionally been in the form of media that served as mouthpiece for political and state elites. In the eyes of Ipekci, balanced – or objective – journalism was both about raising journalists’ own ethical standards with regard to reporting about various ‘others’, as well as about developing a ‘democratic order’ that buttresses the possibility to perform independent journalism. Ipekci’s columns show a clear and consistent engagement with the issue of journalism ethics, as well as with how to develop and maintain a legal framework under which the possibility for freedom of expression and dialogue between various public actors is secured, and where autonomous media are protected. He thus came across as highly wary of the alterations in the legal framework, including the 1961 constitution, after the military intervention March 12, 1971, which led to restrictions with regard to freedom of expression, imprisonment of media workers, and an undermining of the autonomy of Turkish Radio and Television (TRT) that the 1961 constitution had paved the way for. In fact, the March 12, 1971 intervention is often emphasized by journalists and public intellectuals, who were active in the 1960s and 1970s, as a turning point, in the sense that it foreboded the end of a relatively speaking less restricted political climate created by the 1961 constitution. This paper traces how Ipekci conceptualizes ‘the public sphere’ and the role of the public by way of looking at how he approaches issues pertaining to the legal and to journalism ethics as well as how these intersect in his columns.

In the summer of 1970 Turkey’s political polarization entered a new phase. After the radical labor union DİSK went on strike and brought Turkey’s largest cities to a standstill, the Army declared martial law and tried 260 civilians in military courts. Six months later the Army forced the government to step down, declared martial law again, and amended the Constitution in order to establish permanent half-military state security courts. The jurisdiction of these courts became the main bone of contention between leftists and the Army over the following decade. While thousands of dissidents were put on trial, attorneys, law professors and even judges linked up with labor unions to mobilize a wide resistance movement. By drawing public attention to the torture of defendants, protesting trial procedures, and in many cases persuading judges to recuse themselves, the movement rendered the state security courts useless and eventually succeeded in shutting them down through a narrow ruling of the Constitutional Court. Scholars have long debated the boundaries of cause lawyering. The debate has usually revolved around the extent to which lawyers can violate professional ideals of ‟disinterestedness” without losing the support of their peers. Taking legal activism in 1970s Turkey as my case, I argue that the distinction between ‟conventional” and ‟cause” lawyering is a political issue in its own right. Instead of treating professionalism as an a priori baseline, I see lawyering as an essentially ambiguous ideal subject to continuous contestation within a field of ‟law” broadly defined. Drawing on archival trial documentation, mainstream and underground publications, as well as legal memos between activist lawyers, I show how the issue of court jurisdiction took the shape of a conflict over the professional jurisdiction of legal experts vis-à-vis political authority. Universities, bar associations, and a broader public took part in contesting the conceptual boundaries of lawyering through ‟knowledge claims” over issues such as when lawyers can make public statements, who has the authority to evaluate the political content of a publication, and what constitutes a professional secret. The conflict caused permanent divisions among Turkish lawyers, each faction defending its version of professionalism as true ‟conventional” lawyering.

The relationship between the rule of emergency, expansion of executive authority and formation of the public sphere is a common theme in political science and sociology. Scholars have studied how under states of martial law, military authority’s powers extend into the civil sphere suspending constitutional norms that protect individual liberties; or how under governments encouraging a security regime the public sphere is contracted through direct repressive measures such as censorship, newspaper taxes and arrests. Concerning the aftermath of such crisis situations, a group of scholars have argued for a roll-back effect in which experiences gained through crisis time expansion of executive authority force decision makers to put an end to crisis time oppressions.In response, others have argued for a positive feedback (normalization) as they demonstrated incorporation of emergency measures into ordinary times. In this paper, concentrating on a case of legal institutional change in Turkey between 1980-2014, I investigate whether institutions founded by emergency rule are made into part of the ordinary, leading to a continuity in the contraction of the public sphere at ‘normal’ times. The legal institutional change under study is the transition from military courts to state security courts, from state security courts to heavy penal courts and finally the abolition of heavy penal courts. Specifically, I focus on the negotiation of limits of freedom of expression within these three judicial systems over three decades. From each of the three afore mentioned periods, I analyze one court case and the struggles that surround it, namely the case of Yalçın Küçük’s book ‘For a New Republic’ from 1983, the case of “The book of Freedom to Thought” from 1995, and the case of the book “Imam’s Army” from 2010. With this study, I demonstrate that the continuities in the spatial performances of both the state and the right to freedom of expression since 1980 point at the normalization of military judicial space into civilian judicial space, which then accounts for the continuity in the pressures put on writers and intellectuals by the judiciary in Turkey.