The History of the Turkish and Swiss Civil Codes from Past to Today
ABSTRACT
After the dissolution of the Ottoman Empire, the Turkish nation was born out of the ashes along with the founding of the new Turkish Republic. Due to providing unity on law, the new Republic should have to lead the enactment process. Also, there were traces of traditional aspects from the Ottoman community that reflects the legislation process. Herein, the Turkish Republic decided to adapt the Swiss Civil Code to reach the level of contemporary civilization. In this study, it will be explained first the codification in Switzerland with its legal history and codification process. And then, the adoption process of the Swiss Civil Code by Turkey will be addressed under the titles of historical background and adoption process with its result. In the light of these, the real intention behind the adoption of Turkey will be evaluated. Lastly, within the cultural diversities that are coming forward differences in their law systems and their effects on society will be addressed.
Key Words: Codification, Culture, Adoption, Civil Law, Modification, Reception, Legal History
ÖZET
Osmanlı İmparatorluğu’nun sona ermesinin ardından Türk milleti Türkiye Cumhuriyeti’nin kurulması ile küllerinden yeniden doğdu. Hukukta birliği sağlamak adına, Cumhuriyet kanunlaştırma sürecine öncülük etmeliydi. Aynı zamanda kanunlaşma sürecine etki eden Osmanlı İmparatorluğu’ndan gelen geleneksel anlayışın izleri bulunmaktaydı. Bu noktada Türkiye Cumhuriyeti, İsviçre Medeni Kanunu’nu muasır medeniyetler seviyesine ulaşmak için benimsemiştir. Bu çalışmada öncelikle İsviçre’de kodifikasyon, hukuki tarihi ve kodifikasyon süreci başlıkları altında açıklanacaktır. Sonrasında, İsviçre Medeni Kanunu’nun Türkiye tarafından benimsenmesi, tarihi arka planı, süreci ve sonuçları ile ele alınacaktır. Bunların ışığında Türkiye’nin İsviçre Medeni Kanunu’nu benimsemesinin ardındaki gerçek irade irdelenecektir. Son olarak, kültürel çeşitlilikler bünyesinde iki ülkenin hukuk sistemlerinde ortaya çıkan farklılıklar ve bunların toplum üzerindeki etkileri ele alınacaktır.
Anahtar Kelimeler: Kodifikasyon, Kültür, Kabul Etme, Medeni Hukuk, Modifikasyon, İktibas, Hukuk Tarihi
1. Introduction
The stage of history shows that there was a significant improvement on the rights of people. It is hard to believe that the difference in situations on human rights in last fifty years. Equality occupies an important place in these rights. Turkey and Switzerland have a vital role in this modernizing process. On the one hand, there is a country that has cultural wealth in its all cantonal regions, on the other hand, here is a state which struggles to manage the modernization within the foundation process of the new Turkish Republic.
But still, these two great nations succeed to modernize their legal system properly in the stage of history. Again, we can easily say that in both systems, there are actions to be taken in the new modern and equal world within the way of de lege ferenda. Furthermore, in this study, it is going to be explained both legal systems’ history within the process of codification and adoption. Lastly, the situation of implementation of law in consideration of the latest modifications will be evaluated in some specific areas. Above all, it is more sensible to come to the beginning of everything: The Codification process in Switzerland.
2. Beginning of our Civil Code History: The Codification Process in Switzerland
The Swiss law had various features ahead of the curve which is plurality and internationality. Within the feature of plurality, first visible consequence is the availability of four (Italian, German, French, and Romansh) entirely different languages. Preliminary provisions of the Federal Constitution show that acceptance of cultural differences, so that situation reflects the codification process. Indeed, cultural diversity directed the legal system, and all cultures affected each other’s legal tradition. In the meantime, within the plurality principle, it is not forgotten the minorities. As a consequence, it can be said that the legal culture of Switzerland is defined by the mechanisms to manage and coordinate pluralities and minorities.
In one respect, the idea of the Swiss “Willensnation” [1] identifies the concept of the nation as a place where their members’ willpower leads to unity as an acting entity in the constitution. On the other hand, it can be said easily that, Swiss legal culture was affected by international rules and organizations. It is possible to see the traces of internationalism within the cantonal cultures. In the history of Switzerland, in some cantons, there was a strong effect of Italian and French culture. The fact remains that, there was an opposition against internationalization. That dilemma brought Swiss Law into today’s shape. In light of these, the Swiss law united together with different cultural legal systems, for that reason, plurality and internationalism were provided to be ahead of its curve.
A. Legal History
From the 13th century to 1789, in Switzerland, there was an old confederacy period and that had specific features. In this period, Swiss cantons depend on mutual oaths. The Federal constitution uses the notion of “Schweizerische Eidgenossenshaft” which means the Swiss Confederation [2].
In the days of old, mutual oaths had strong effects on citizens, it was accepted as a rendition of honor. So, it can be said that these oaths had cultural bindingness. It shaped the behaviors of citizens and leaders, used as a mechanism to unite against enemies. With the Sempach Treaty of 1393, several cantons confirmed a combination of the confederacy and public peace and banned violence between contracting parties. Here it is traceable that the first but efficient steps to uniform legal intellection.
The first written form of rules of Zurich “book of laws of the citizens of Zurich 1304”, was an afflated document of mutual oaths and customs. But in long years, it was preferred unwritten customary law predominantly. Later on, there were needed written records to specify relations between peasants and lords. In the 16th century, the sumptuary law extended regulation issues. Sumptuary laws are designed to regulate habits, especially on moral or religious grounds. They are particularly directed against inordinate expenditures on apparel, drink, food, and luxury items [3].
In the later of this period, the French Revolution has started. Within the French Revolution, the idea of constitutionalism spread, the constitutions would have more importance of the identity of statehood. It led to constitutional developments in the Swiss law system. Indeed, within the foundation of the Helvetic Republic, French dominance tried to exert its authority on being a centralized state for the Swiss legal system.
But this idea failed, and cantons accepted as independent states under the control of the Federal Treaty. They could unite with the main purpose of securing their freedom, independence and safety. Thereby, cantons decided their fate in legal and political structures through long ages. On the other hand, after the industrialization movement, the idea of the central state has strengthened, and it led to a total revision of the Federal Constitution in 1874. Here, the codifications in the cantonal level have been replaced by federal legislation in the upcoming years.
At this juncture, for creating federal legislation there was a need for a proper codification process. The idea of codification occurs with creating a systematic order in specific areas of law. Since the age of Justinian and Codex, it can be seen the positive effects, like social developments and providing unity in legal systems, of codification movements.
In the 19th century, the member of the German Historical School of Roman law Friedrich Carl of Savigny transferred the idea of codification to his Swiss master student Friedrich Ludwig of Keller, and it led an effect of intellection of Roman law on all of the codification and education processes. Despite that, there could be seen the traces of German and French effects in western and eastern cantons. It is pleasing to say that being open to using foreign legal concepts most of the time.
But every time Switzerland had its own approach these different concepts. For this reason, the Swiss legal culture always has an unprecedented structure. Swiss legal culture is shaped by various foreign influences yet managed to survive as an original example. Lastly, it can be said that Swiss cultural diversity and plurality shaped this codification process and brought today one piece.
B. Codification Process
Historical School of Roman law has influenced deeply cantons where German spoken because several Swiss professors received education in Germany. In the Bluntschli’s work “Deutsches Privatrecht”, it can be seen traces of pandect’s law. Thereby, he drafted Switzerland’s first independently codified cantonal civil code which entered into force in 1856, which was Zurich Cantonal Civil Code. The association of Zurich civil law and German pandect’s law was accepted as the main example of the following codifications of Swiss civil law.
Eugen Huber has invited Bern for the redaction of civil law. But it was not an ordinary redaction process, he was called for leading a federal codification process rather than cantonal codification like Zurich. He has been defending the opinion that codification of cantonal civil codes should be gathered under one federal roof. In 1884, he was commissioned by “Schweizerischer Juristenverein” to compile the private law legislations of different cantons and to conceive a comparative study by taking their historical developments into account.His precious work was crowned with a comprehensive four-volume work titled “System und Geschichte des schweizerischen Privatrechts” published between 1886 and 1893.
In Switzerland, due to commercial and economic reasons, originating from the state’s policy, it has become mandatory to provide a private law union at the federal level; but still, federal law and cantonal law have been applied together in different areas. Thus, the identification of the law to be applied became a very difficult problem. As a result, this process must be completed, as the abortion of the codification process couldn’t even be accepted. Finally, with the amendment of the Federal Constitution in 1898, the federal legislative authority has widened, including all branches of civil law. In the meantime, the Swiss Civil Code has adopted in 1907 and it can be said that Huber’s work was preparatory work for this Code.
As a consequence, the Swiss Civil Code is a balanced synthesis of different civil law traditions. The Swiss civil law codification had a great impact both in European countries and outside of the EU due to its simple structure, being written in a language that the public can understand and leaving a large area of action for the judge. At this point, the publication of both laws in three languages (German, French, and Italian) also plays an important role. In conclusion, with its modern, unsophisticated structure and understandable language, the Swiss Civil Law codification influenced several states. I guess the most appropriate example of this influence is Turkey.
Whereas mentioning our land, I believe it would be useful to mention Swiss and Turkish Codes’ some notable similarities and differences. Both codes have flexible characteristics because their rules are not so strict, the provisions can be implemented in particular situations differently. Also, the authority of the judge to interpret cases helps the filling legal gaps in both systems in case of a lack of provision to apply. And also, they are easy to read and have reasonable provisions to understand. The first and foremost feature is layman can understand what these codes say. On the other hand, both codes have differences intrinsically. One of these differences exists because of the national structure; Turkey preferred unity, but in Switzerland cantons support federalism for many years. Also, Turkey adopted this code only its French version yet there would be differences in interpretation in these four languages. Because texts in different languages differ in terms of terminology, the Code is sometimes interpreted differently in cantons. At the same time, the Swiss codification process brought for providing unity in law but in Turkey, there was another goal to realize a changeover from religious regime to the today’s modern regime. As a consequence of these features, it can be said that two great nations both effected by their cultural intellectual yet managed to take necessary steps to modernize.
3. Adoption of the Swiss Civil Code in Turkey
The reception movement in Turkish law, which had a revolutionary characteristic, was brought into being by founders of the new Republic. While the Ottoman Empire leaving its place to Turkey, within the question of the revolution, Ottoman law is replaced with the law of the Republic of Turkey. To properly evaluate this reception movement in the Republican period, it is necessary to determine the process that created this movement. Because the Ottoman legal system was not foreign to the reception movements, that a partial reception was needed in the last period of the Ottoman Empire, and the partial reception movement in the Ottoman Empire turned into a full reception during the Republic period. For this reason, it will be proper to evaluate the historical background for clarifying the adoption process.
A. Historical Background
First of all, it should be noted that after the Rescript of Gülhane, the Ottoman legal system wasn’t foreign to the reception. However, these receptions had partial characteristics, they didn’t involve other law systems principles entirely.
Also, some conflicts were reflected in the decision process of modernizing civil law. French civil law and Islamic law excluded themselves in different ways. Two important statesmen defended opposite views. Ali Paşa thought that the reception of the French Civil Code was proper for modernization.
On the contrary, Cevdet Paşa supported Islamic jurisprudence, because he had the intention of providing permanence and continuity of the Empire within the process of creating own cultural law. In the end, Cevdet Paşa’s view accepted. In the light of this, it is noticeable that there were traces of will to realize reception of modern legal systems. After all, it was drafted a Civil Code which called as Mecelle. But it represents only one jurisprudence between several aspects in religion. With only assimilating Hanafi jurisprudence got reactions. On the other hand, there was a study aimed at eliminating Mecelle’s deficiencies has made on family law called as the Hukuk-i Aile Kararnamesi in 1917. But this regulation was failed to satisfy the Empire’s needs in legal area.
Initially, local, conservative and traditional views for civil law preponderated. Within the foundation of the new Turkish Republic, the desire of the founders to break chains with the former law, focused on the idea of taking the laws from the western modernized countries. Before the adoption of the new Turkish civil code, it has constituted two different commissions in 1923 and 1924. The commissions of 1923 have tried to emphasize Islamic values in the foreground within the codification process. That situation shows us the former view on the legal structure was still prioritizing and that would prevent to take necessary steps within the aim of modernization. At the same time, several members of these commissions were pertinacious to regulate rules within the perspectives of manners and customs. As a matter of fact, the minister of justice Seyyid Bey highlighted “Law means manners and customs.” [4]. At this juncture, it came into prominence to regulate a national and pure Turkish code by some members of the commission. However, there were also objections against this idea some of the members and Mahmut Esat Bey disagreed with this idea. They supported one main goal, the substantial one was reaching the level of contemporary civilizations.
In fact, this idea affected the commission of 1924 and they thought on a simple solution as if the Republic wants to become a member of modern states, it should be taken laws from these members of modern states. Nevertheless, this draft was also canceled, as the idea of taking the laws from the west prevailed at this time and the commissions were dissolved by the Minister of Justice.
In any case, there would be faced with former views on the regulation process within the bounds of possibility, because going beyond the ordinary is a troublesome movement mostly. The view of the abolishing of Islamic law principles and establishing completely new rules dominated the politics of the period of the new republic. As a result, the intellectual of taking the legal norms entirely from the West has prevailed. And then, in the end, Turkish authorities decided to adopt the Swiss Civil Code. As a matter of fact, as in the Ottoman Empire, it was not a partial reception, but this activity was a complete reception, which is a legal revolution. Basing on divine sources of the legitimacy of the legal rules has put an end. This secular, equalitarian, and libertarian code was a significant step to the modernization process.
B. Adoption Process and its Results
It will be wrong to say the Swiss Civil Code has totally translated to the Turkish law system. Some provisions have changed or altered. According to Ruth A. Miller [5], 35 percent of the provisions of clauses were not the same as the Swiss Code. He evaluated 115 clauses in both codes and 40 of them are different or missing parts. That situation shows Turkish authorities took initiative according to the existing conditions within the aspects of culture. Because of that, it can be described as a flexible adaptation. In any case, even so there could be friction between Turkish and Swiss Civil Code because of legal sensitivities and habits that arose from former implementations. Especially, in some areas it can be seen the traces of Islamic legal culture. But it was becoming fact to modernize in legal structure substantially. It was common knowledge that capitulations weakened the Ottoman Empire [6]. For that reason, the new republic didn’t want to encounter the same situation. Within the Lausanne Treaty, there was a need for a regulation regarding the rights of minorities to get rid of capitulations. Indeed, the concept of fundamental laws gives a chance for European powers to oversee Turkish legal society regarding the status of minorities. For solving this problem adoption of a legal code was a proper and practical solution.
On the other hand, there were traceable differences in family law, it had better to mention them briefly. In law of personality, there were differences which arose from the situation of infrastructures. For example, in Switzerland, every birth must be declared in three days but in Turkey, it was one month. Given the realities of the new founding Turkish Republic, these differences in time limit were ordinary, because there wasn’t a steady system like Swiss country.
The acceptance of a long period of Hanafi jurisprudence on denying paternity also reverberated to the new civil code. In fact, according to Swiss law, the legal existence of a child commences after the 6th month of conception; on the contrary in Turkish law, it begins a month after birth. That situation shows us there were no complete relinquishing from Islamic jurisprudence, in my estimation, erasing the traces of Islamic culture would be challenging. In addition to this, it can be seen the paternalistic structure of Turkish culture within the differences about origin regulations regarding taking care of the child whose father or mother was unknown. Despite our land’s condition, in Switzerland, the state was only responsible for discovering the child’s identity. On the other hand, there have taken some necessary steps regarding equality in marriage. At the same time, focusing on the male side after breaking the promise has widened and within the new code either party could be responsible.
The word of obstacle made differences in both systems. That is to say, in whereas Swiss code it was mentioned obstacles as legal obstacles, but in Turkish systems, there was only the notion of the obstacle. Actually, that situation remarks Islamic legal culture. In Islamic legal culture, marriage and divorce process more dependent on the male side’s acts. Lastly, non- legal obstacles could be defects; inability to pay the dower, maintenance, absence; and manumission of married with a slave woman. Also, in Switzerland, it was indicated that alimony can be granted by a judge for an indefinite period, however, in Turkey, the alimony may last for one year after divorce. Eventually, this intellectual of the financial separation of divorced spouses in the Turkish system could be considered a rather substantial pillar of Islamic legal practice [7].
From rural regions, there was strong opposition against new modern Civil Code’s intellectual. Nevertheless, it can be said the Turkish community adopted that generally.
The betting is that, changing the mentality in whole country included all regions of them in an extremely short time should be coercive. However, it was an undoubted truth that the fire of modernization has burnt and started to spread by Mustafa Kemal and his fellows. The parts of celebration of marriage and personality had remarkable discrepancies from the Swiss Code. If it would be specified with statistics, 73 percent of provisions regarding celebration of marriage had different provisions [15/11][8]. The Committee of Turkish Civil Code was attempting to place our land conceptually within “the great civilized familial bloc”.
In this continuum, they tried to split the discrepancies between these modern principles and the actual life. Let it be known that, Turkish Civil Code was not an only ordinary legislation activity. It was a mechanism to change a new state’s ideology to be a contemporary civilization. And, this huge step affected our legal tradition. However, it couldn’t be erased all traces of Ottoman legal culture. Taking into account all of these developments, this legal revolution yielded results and brought us today’s intellectual. For that reason, it is an essential step to evaluate the reasons behind them.
C. Why Did Turkey Adopt the Swiss Civil Code?
According to Minister of Justice Mahmut Esat [9], the Swiss Civil Code was the most recent, perfect and the most democratic one in that period. Also, it included great benefits for the new republic’s needs. In addition to this, it was the easiest and the most practical one to apply. Again, the Code was the newest in the period of the foundation process of the new republic. This modernity included populist and complete characteristics. Indeed, the German Code was hard to understand and had an intangible intellectual. Also, the French Code couldn’t satisfy the needs and had an old structure. Therefore, these statements can explain the technical aspects of the Swiss Code.
The authority of the discretion of the judge had a critical effect to overcome challenging situations. Swiss Code’s feature could be a key to cope with the cultural conflicts and legal gaps so that speciality was tailor-made for Turkey. As a consequence of implementation in different cultures in several cantons, like Italian, German, and French culture based, led a compatible structure to adapt our system. Also, it had a flexible characteristic, there were no abstract rules, they could be interpreted in different ways. For good measure, certain legal experts and executives of the new republic like Mahmut Esat Bozkurt educated in Switzerland, that intellection was engraved in their subconscious in their period of study.
The main goal of the new republic was to be a member of the civilized world. Efforts on founding a new order necessitated a changeover in the legal area. The desire for modernization meets the objective of providing equality with the new code. Revolutionary ideas that arose from the Eight Reform Laws led the idea of equality between genders. In light of these, if we think the value given to Turkish women by Mustafa Kemal Atatürk, it was taken a worthy step to the ideal with the adoption process. On the other hand, the idea of secularism was one of the main reasons for adopting process. Erasing the traces of religious traditions of Islamic law from the former Ottoman Empire, in other words, devolution of divine sources, were the key elements to modernize. Justifiably, within these purposes, the Swiss Civil Code was a proper solution.
From another point of view, the aim of managing unity in law and the pressure of the Lausanne Peace Conference there was a need to regulate an independent, modern, and equal code. The situation of minorities put a spoke in Turkey’s wheel in different aspects. To legitimize abolishing the capitulations, Turkey should have changed the position of minorities in the Turkish community. Recognizably, the Swiss Civil Code implemented on several cultures and provide equality in the community, because of that reason, it could work in Turkey. On the other hand, efforts to unite all citizens into one single legal roof regarding minorities and Muslims was mattered to get rid of the pressure of interference in domestic affairs by European powers. For absolute national sovereignty, the main solution was accepting a code that oversees all citizens in the same position. Finally, the Swiss Civil Code had a historical and legal background to provide these requirements.
Despite that, the movement of adoption was criticized in many aspects, it had better to mention some of the objections against adoption. Primarily, adopting a foreign code that didn’t include cultural and rural habits got reactions. Some authorities thought, creating a new unique legal system harbor Islamic values. Adopting westernization and modernization, it was claimed that the authorities ignored old social values. Thus, the velocity of the revolution process got reactions too.
Another remarkable criticism was about language. In the translation process of the French version, there were discrepancies to evaluate rules. Different people translated different sections, that situation caused a kind of disorder. Due to this, the translation of the code was not accepted as a simple and understandable translation. Also, there were mistakes and unnecessary additions in provisions texts. It can be partially said, the will of the nation couldn’t be reflected in the process of acceptance of the Code. Because in parliament, the code was accepted as a whole, it was not discussed clause-by-clause.
It should not be forgotten that there were problems to apply the principle of equality. Unfortunately, it has occurred undesirable issues because of the cultural effects. It was a harsh reality that, there were issues about child marriage, heritage sharing, the position of women in marriage, and civil marriage form this period to today. Maybe, it can be said the adoption proceedings was initiated in a hurry but there was not any other option to overcome conditions of the foundation of the new republic. But if we will talk about mistakes about the adoption process, it should be addressed the steps which were not taken while Switzerland has been making modifications.
4. Separation from the Swiss Civil Code: Modification Process
It is inevitable to make certain changes to keep up with changing needs over time. If it wanted to sustain a legal system, it should keep up with the times and needs. And the best way to manage this in law is making modifications. In Switzerland, there were major socio-demographic changes during the last decades. The fact remains that, high life expectancies guide to modify rules within the way of being a contemporary civilization [10]. After the codification process in Switzerland and the adoption process in Turkey, there were needed new regulations to reach international standards on human rights properly. In this part, it is going to be addressed the equality in marriage and same-sex relations briefly. And lastly, it is going to be evaluated the final situation of both legal systems. The main goal is to see the effects of culture and mentality.
In 1988, there was a modification in marriage law to provide equality in genders to annihilate the effects of the patriarchal model. Because in Swiss cantonal tradition it was accepted the view of the man was a putative breadwinner, and also the wife was responsible for the childcare and housework in long years. Also as happened in Turkey, in Switzerland, the ideal of equality couldn’t go live entirely. Various parts of the civil community were antagonistic to these changes. Perhaps, they were thinking that these modifications were not complying with their cantonal traditions. Briefly, within modifications, it was added the regime of participation in acquisitions for a guaranteed marriage for women. At the same time, legitimacy with only civil ceremonies and reducing the impediments of marriage were necessary steps for modernization.
On the other hand, there were other issues regarding same-sex couples. Unfortunately, there was always been a resistance against same-sex relationships in the stage of history, because of the effects of religious and traditional mentalities. In recent years, it can be seen the attempts to provide an equal environment and rights for couples of same-sex relations. As a result of these attempts, it came into view particular modifications in several countries. For instance, same-sex marriage in Germany has been recognized since 2017. Previously, from 2001 until 2017, registered life partnerships had been available for same-sex couples in Germany. Here it is noticeable that the world and communities have started to accept equality of all human beings. Thus, Switzerland introduced the possibility for same-sex couples to legitimize their relationship via a registered partnership in 2007. Rather than opening up marriage to same-sex couples, the Swiss government created a special statutory outside of the Civil Code [11]. This situation demonstrates the intention to approach the registered partnerships differently from other family forms.
The acceptance of seeing a same-sex relation different form an ordinary togetherness has reflected the rights of these couples. In other words, they have fewer opportunities than married couples. That dilemma shows that the necessary steps have taken for modernization but the ideal of equality process hasn’t finished properly. Because there are accorded rights for married couples rather than same-sex couples regarding the financial process, marital property, and alimony.
Recently, a request was launched in the Swiss National Assembly asking the Council to deliver a report regarding the adaptation process of new Swiss family law. It handles with socio-demographic changes, concerning the 21st century’s most important ideal of plurality within the aspects of family relations [12]. After experts’ opinions, there were discussed sensitive issues in Swiss family law. Assimilating the law of registered partnership to marriage was one of them. Maybe, in the near future we can see same-sex marriages in Switzerland. But, in the course of events, the Swiss family law is still affecting by traditional views on marriage and family like Turkey.
If we examine Turkey’s situation during this modification process, there were major steps to modernizing with new Civil Code in 2002. However, failure to follow the changes in the Swiss Civil Code during the preparation of the new Turkish Civil Code and the changes made in the Swiss Civil Code after this law came into effect and not taking the appropriate ones for us increasingly started to separate from the Swiss Code [13].
In recent time, amendments in Swiss Family law has not to take sufficient notice by Turkish authorities. In my estimation, recent changes in modern countries worth considering. As you would appreciate, these changes did not make by an ordinary country; it was made in the country where we adopt our rules from. Therefore, it should be taken necessary steps by authorities in the way of modernization regarding equality in marriage which includes family law and cultural views. Also, the position of same-sex couples should be enhanced just like Switzerland has done. If we don’t follow the modern world’s developments in human rights, getting out of date will be inevitable for Turkey regarding human rights.
5. Conclusion
I wouldn’t be wrong if I said that two valuable legal systems have come a long way in time. So much so that, on the one hand, there was a revolutionary codification process that was able to bind many cantons together and enabled each to maintain their cultural structuring. On the other hand, a legal revolution was taken place which was able to affect the social life of a country, from the empire to the republic, from the Sharia to modernism and from traditionalism to equality in a short time. Unmistakably, it can be seen the effects of traditions and mentality in the whole article. Since the 13th century, we can see that solutions have been produced on legal grounds to the needs that have arisen over time in Swiss Civil Law and after the adaptation process in Turkish Law (also including the last era in Ottoman Empire), and sometimes these have been successful, and sometimes they have failed as the result of the insensitivity of some authorities or some conservative groups.
In fact, the revolutionary steps taken in the foundation of the republic process had great value ahead of their curve, but the people who were not fully ready for this in cultural terms, especially in rural areas, could not adapt to this on certain issues. Today, we can see the negative effects of dogmatic mentality and lack of education in the framework of child marriages, violence against women, and deprivation of homosexual individuals from rights. At this point, it can be said that both valuable countries have some deficiencies in the stage of history. It should never be forgotten that the Turkish Republic is one of the first countries in the world which gave women the right to elect and be elected. And this respectable country should sustain that equal and revolutionary intellectual. For reaching the ideal of the rights, it should be started with breaking down prejudices under favor of education. And then maybe we can see the downfall of dogmatic frame of mind. Consequently, the overlap of the social structure of the reformed world and the rules of law will undoubtedly create an order close to the ideal. The share of lawyers and the new generations is essential in ensuring this ideal order.
[1] Thommen, Marc, “Introduction to Swiss Law”, Sui Generis, Volume 2, (2018): p. 43
[2] Ibid., p. 45
[3] Sumptuary Laws — Purpose, Classes, Regulate, and Luxury — JRank Articles, https://law.jrank.org/pages/10609/Sumptuary-Laws.html
[4] Dursunüst E., “Kabul Edilme Sürecinde Türk Kanun-ı Medenisi”, Usul, 12 (2010/1), p. 163
[5] Miller Ruth A., “The Ottoman and Islamic Substratum of Turkey’s Swiss Civil Code”, Journal of Islamic Studies, Vol. 11, №3 (September 2000), Oxford University Press, p. 336
[6] Ibid., p.338
[7] Ibid., p.353
[8] Ibid., p.356
[9] Mahmut Esat Bozkurt in Code Civil turc (ed. Rizzo, Istanbul: Rom 1937) in “The Ottoman and Islamic Substratum of Turkey’s Swiss Civil Code”, p.337
[10] Keller T., Schwenzer I., “Recent Developments in Swiss Family Law”, Public and Private International Law Bulletin, Volume: 35, Issue: 1, p. 4
[11] Ibid., p.13
[12] Ibid., p.25
[13] Kılıçoğlu Ahmet M., “How We Amended Our Civil Code”, Legal Research Journal of Marmara University Law Faculty, Volume: 22, Issue: 3, Ankara, p.1756
