The Constitution is not a law

The amendment of the Constitution is being discussed. Again...

From the discourse of those who are not legal experts, especially those uninterested in history or philosophy, I understand that the constitution is perceived as a law.

The constitution is not, in essence, a law.

The name of the constitution creates a misleading perception. As if it were the law of laws, the master law, the 'ana-yasa'...

The great jurist Kemal Gözler argues that the word 'anayasa' is a very successful example of linguistic purification (Öztürkçe). I do not agree with this. Or rather, I find this 'success' tragic. Yes, a 'success' because it caught on. No one can remove the word 'anayasa' from the nation's vocabulary anymore. However, this success is tragic because it brings with it erroneous connotations.

The equivalent of the word in Western languages is 'constitution'. We first heard it from French. However, the word is essentially of Latin origin. The root of the word carries the meaning of constituting, shaping, and establishing.

In the Ottoman Empire, during the modernization process, 'constitution' was translated with names such as 'Kanun-ı Esasi' (Fundamental Law) or 'Teşkilat-ı Esasiye Kanunu' (Law of Fundamental Organization) or 'Teşkilat-ı Esasiyye'.

You might see the discussion simply as a debate over words and etymology. But if we can rid ourselves of the connotations of the word 'Anayasa' and reach its true meaning, the relevance of the discussion will emerge.

If what is conveyed about ancient history is correct, Aristotle stated that he examined the constitutions of more than 150 states. If we are to understand the 'constitutions' mentioned here as the constitution that comes to our minds, we would be talking nonsense. Because constitutions in the modern sense, codified (written down with a legal logic), emerged at least 1000 years after Aristotle's time. So, what did Aristotle mean when he said 'Constitution'?

Of course, the structure and operating system of the state... When this is the case, the connotations of the term 'Teşkilat-ı Esasiyye' (Fundamental Organization) are more accurate. 'Constitution' becomes a useful term when describing the structuring, shaping, and the relationships between the organs of the state. When this is the case, we can understand that every state has a constitution, even if it is not codified. In this respect, there is not even a need for the distinction between 'constitution in the material sense' and 'constitution in the formal sense' used in legal education. Indeed, in Turkey, we mostly talk about the 'constitution in the formal sense'. Within the scope of these conversations, we focus on the unchangeability of the first four articles of the constitution. However, a constitutional amendment in the material sense (essentially in the real sense) does not require a vote. These articles can be effectively abolished or rendered completely meaningless in practice.

Didn't our famous constitutional law professor, Prof. Dr. İbrahim Kaboğlu, already say it? That the first four articles could be effectively changed by changing other articles without changing the first four. Let me be more explicit: There is no need for any change in the formal sense. A constitution written in ink has no effect unless there is a power or a will behind it. However, even if it is not written anywhere, the form of the state can change partially or completely, and it is changing.

At one point, the opposition was reacting by writing 'T.C.' (Republic of Turkey) everywhere. What difference does it make whether 'T.C.' is written at the beginning or not? Naming depends on consensus and repetition. Write the most beautiful wishes on the most beautiful papers like pearls. What is the point if it does not touch life? By the way, isn't it time to put aside what is written and look at what is actually happening? Does having 'T.C.' written everywhere comfort you? Does having the first four articles nailed down like a spike give you peace of mind? If so, how wonderful! Happy and peaceful dreams!