Between State Law and Religious Law: Islamic Family Law in Turkey

Abstract

This paper considers the history of Islamic family law and its current applications in Turkey. As the heir of the lastMuslim empire, the Ottoman Empire, the Republic of Turkey chose an abrupt revolution in its legal system; in1926, it cut all ties to Islamic law, which was the main law of the land during the Ottoman Empire. Secularizationof the law was not uncommon among modern nation states including those, which had Muslim majority populations.However, most of these Muslim majority states allowed Islamic law to govern the private law area, especiallyfamily laws. By contrast, the young Republic of Turkey did not allow this to happen and adopted the Swiss civilcode including family law with limited revisions. Despite this rushed revolution, practices emanating from Islamicfamily legal norms did not cease among the people and continued until now. This created a dichotomy in the lives ofpeople between applying Islamic family law and abiding by the secular civil code, which has caused several multidimensionallegal problems in the areas of marriage and divorce, as well as their legal consequences in the areas offinancial support and child custody. For the first time in republican history, in 2017, the government authorizedmuftīs to solemnize marriages. This is seen as the only direct authority given to muftīs in a legal matter, whichindirectly opens a door for applying Islamic family law in modern legal life in Turkey. In addition, family mediationwill soon have some presence in the legal system. There is no direct reference, however, to Islamic family law ingovernment official documents congruent with these recent developments. There also is significant potential forincorporating the principles of family mediation and arbitration (taḥkīm) based on Islamic legal principles. Thispaper first gives a brief history of Islamic family law in Turkey as well as its effect on the civil codes and applicationsand then evaluates these recent changes. These are preceded by a brief note on the constitutional and legalframeworks currently in force in Turkey.