The Turkish state is the law

In Turkey, the state is above everything, including the law.
Monday 17/12/2018
This alla turca theory of justice has its origin in the transcendental nature of Turkish statehood.
This alla turca theory of justice has its origin in the transcendental nature of Turkish statehood.

Sirri Sureyya Onder, a former member of parliament for the pro-Kurdish People’s Democratic Party, has been sent to prison on terrorism charges. He had served as a key conduit for the Kurdish side in the failed peace negotiations between the Turkish government and the Kurdistan Workers’ Party, so observers were quick to point out that the decision was a serious inconsistency, given Onder had played a role based on government consent.

Onder’s case is far from unique. There are many instances in which people have been arrested on terror charges for acts done with the Turkish government’s consent or support. Many pundits remind us that it is inconsistent to arrest people for past deeds since those actions had not previously been defined as crimes.

Though observers are correct to find the arrests legally inconsistent, their reactions ignore a key fact about the traditions of the Turkish state. A short analysis of Turkish state tradition reveals that it runs on a peculiar theory of justice that has historically legitimised such inconsistencies in the name of state interests.

Normally, the rule of law requires that no one is above the law. All members of a society — including the government — are equally subject to the law. The government recognises that the law is an autonomous realm free from political influence.

In Turkey, however, the state is above everything, including the law. Thus, the state in the Turkish tradition never recognises the law as an autonomous realm. Yet, by its nature, the Turkish state tradition is sceptical of autonomous realms not only in law but in economy, intellectual life and even religious affairs. In all such realms, the state’s expectation is a state-oriented, state-comes-first attitude.

As a direct result of this model, there are two tracks of judicial activities in Turkey. The first is about legal procedures among individuals concerning ordinary or common disputes, such as issues of robbery, inheritance or trade. On this track, since the state is not part of the disputes, courts are expected to deliver justice among people. Thus, the motto of this track is the standard one: Justice is the basis of ruling.

Then there is the second track in which the state is directly or indirectly involved and courts are expected to deliver not justice but a judgment based on raison d’etat. On this track, the motto of the Turkish courts is different: The interests of the state are the basis of ruling. Trials and hearings at this level are purely political procedures.

This alla turca theory of justice has its origin in the transcendental nature of Turkish statehood. Still running on the course of transcendental statehood, Turkey lacks a Western type of social contract to function as a legal framework to provide an equality-based relationship between people and the state.

This transcendental nature enables the Turkish state to be free from the people’s interrogations. It enables the state to change its mind as often as it likes because there is no social contract allowing people to remind it of the legal ramifications or absence of political consistency. Not bound by any external frame of consistency, whatever the state does or says automatically becomes “true” and binding.

Enjoying its transcendental nature, the Turkish state unilaterally changes the definitions of crime, justice, terrorism and many other key concepts. So, the government can easily declare as enemies people who were previously saluted as heroes, while an act previously seen as perfectly legal is suddenly declared a crime. Therefore, it is meaningless for pundits to point out how the government is inconsistent today for arresting some people.

Remember that most of the trials in Turkey proceed on the second track, with courts expected to deliver a judgment according to state interest. The only thing that can bring normalisation to Turkey is, ironically, the state’s decision.

This is a matter of time, rather than justice, Turkey will return to normalisation once the Turkish state is satisfied with the purges of domestic enemies, particularly the Kurds, the Gulenists and the Gezi people.

In Turkey, justice is a grace of the state and the state will decide the right time to favour its subjects.

Gokhan Bacik teaches political science at Palacky University. This article first appeared on ahvalnews.com and is reprinted with permission.