When the Legislator Wears a Robe: The Jurisprudence Revolution in Turkish Law

A new wind is blowing through the corridors of Turkish courthouses. The familiar scent of “written law” is gradually giving way to the fresh ink of court rulings. Is the Turkish legal system moving away from its roots in the Continental European tradition and leaning toward Anglo-American law (common law)? How does this shift affect the rule of law? Let us take a closer look at this dynamic transformation in our judicial world.

From Continental European Tradition to Anglo-American Breezes

For many years, Turkey’s legal system remained strictly tied to the Continental European legal tradition. Laws were accepted as the primary source of law, just as in Napoleonic France or Bismarck’s Germany. Written legal texts were above everything; courts were seen merely as the implementers of these texts. Jurisprudence (judicial decisions) was considered not a primary, but only a supplementary source.

-The judge was to do whatever the language and spirit of the rule dictated, and was not to interfere beyond that. Montesquieu’s statement, “Judges are only the mouth of the law,” was the concise expression of this tradition.

However, globalization and international interaction have begun to partially change this picture. The precedent-focused approach seen in Anglo-American law has begun to find resonance in Turkey as well. The Turkish judiciary, which was traditionally expected to rely on legislation, is increasingly adopting a profile that pays more attention to jurisprudence. Especially in complex and emerging legal issues, judges tend to consider previous decisions made in similar cases rather than remaining stuck between the lines of written law. The result? The concept of “precedent” is becoming an inseparable part of our legal conversations. The principles of Anglo-Saxon case law, which were once only discussed in academic circles, are now being voiced even in courtrooms.

This change is not without historical roots. Even Article 1 of the Turkish Civil Code has told the judge since 1926 that “If there is no provision in the law, the judge decides according to customary law, and if there is none, according to the rule they would have laid down if they were the legislator.” In other words, our legal order had assigned the judge a mini-legislator role in theory from the very beginning. But this authority gathered dust on the shelves for a long time; because in practice, judges saw the legal texts as sufficient. Now, it is as if that dust is being shaken off. I do not think a judge culture that steals the spotlight has developed here. The tendency of lawyers to base their arguments directly on judicial decisions rather than on the law and the interpretation of the law, in an effort to ease the burden on judges, is strengthening.

Constitutional Court and Individual Application: Jurisprudence in the Lead Role

The right to individual application to the Constitutional Court, which was introduced with the constitutional referendum held in 2010, was perhaps the most important milestone of this transformation. Since September 23, 2012, citizens have been able to knock on the door of the Constitutional Court in any situation where they believe their fundamental rights have been violated.

. This innovation effectively started a jurisprudence revolution in Turkish law. Because the AYM (Constitutional Court), thanks to these applications, began to set general principles based on concrete human stories and to create a new rights standard with each of its decisions.

Now, AYM decisions are becoming a guide not only for the individual who made that application but for the entire legal order. For example, when access to Twitter was blocked in 2014, the Constitutional Court ruled that this ban violated freedom of expression and had Twitter reopened. This decision shed light on all similar internet freedom cases. Again, in the case of the nationwide blocking of Wikipedia in 2019, the AYM lifted the ban, citing “freedom of access to information.” These examples show that court jurisprudence is effectively creating new legal rules. Although Constitutional Court decisions officially bind only the relevant party, in practice, they are turning into guiding principles that everyone, from lower courts to administrative institutions, is expected to follow.

Of course, this process is not always smooth sailing. The bold jurisprudence of the AYM is sometimes met with resistance by lower courts or the administration. In some cases, the administration does not fully implement or delays the AYM’s decisions on individual applications.

. For instance, there have been incidents where, when the Constitutional Court ruled that a detainee’s rights had been violated and that they should be released, the relevant court resisted by saying, “I do not agree with the AYM’s decision.” Although such friction raises question marks regarding trust in the rule of law, the legal dialogue continues in the end. Judicial bodies are learning their roles and limits in this new system over time.

When Courts Make Law: Judicial Activism on the Rise

Let us come to the issue of the judiciary acting like a legislator. Some observers call the picture that has emerged in the Turkish judiciary in recent years “judicial activism.” This term means that judges do not settle for just applying existing law but show the courage to set new rules to fill legal gaps when necessary. In the Anglo-American world, criticisms that Supreme Court judges sometimes act like “constitution makers” are well known. There are not a few who think that a similar trend is emerging in Turkey.

Indeed, some high court decisions can be as effective as a law passed by Parliament. For example, in the “indefinite alimony” issue, which has been debated in Parliament for years but could not be resolved, the Court of Cassation tried to fill the legal gap by introducing a tendency for time limits through its jurisprudence. Likewise, the joint jurisprudence decisions made by the Court of Cassation regarding the effect of the annual inflation rate on contracts or labor rights draw a framework as binding as the law. The Constitutional Court, on the other hand, is criticized for entering the field of legislation by giving strong clues about what kind of regulation should be made instead while canceling decree-laws or laws in some of its decisions.

Our country has had plenty of debates about tutelage. In particular, one segment has made the phrase “judicial tutelage” a buzzword. However, the pluralist understanding of democracy finds its assurance against majoritarian democratic understandings in judicial tutelage. But in the context we are discussing, the main issue is not judicial tutelage, but whether judges are replacing the legislator.

On one side, there is judicial activism as a requirement of militant democracy in order to defend democracy, and on the other side, there is the popular-will segment that interprets the active role of judges as the tutelage of the appointed.

Supporters of judicial activism also offer strong arguments: If the legislative body does not take action due to political reservations or if fundamental rights are violated, the judiciary stepping in to protect the individual strengthens the rule of law. Especially in matters such as minority rights and freedom of expression, the active stance of courts can be a safety valve that saves democracy from the tyranny of the majority. Indeed, historically, the US Supreme Court’s 1954 Brown v. Board of Education decision, which ended segregation, or more recently, the progressive decisions made by courts around the world regarding LGBT rights, have paved the way for laws. Similarly, in Turkey, the judiciary can produce solutions that soothe the public conscience in some matters. However, the critical question here is: How will this balance be found? When will the judiciary say, “This is where I should stop,” and when will it push forward? There is no clear answer yet.

Transformation in the Judge Profile: From Passive Referee to Active Player

All these developments naturally bring about a serious transformation in the judge culture as well. While there was a judge profile that was “passive, timid, and only looked at the file in front of them” as if drawn with a ruler until yesterday, today there is a younger, more dynamic, and open-minded generation on the benches. These new-generation judges closely follow not only local laws but also the jurisprudence of the European Court of Human Rights, international law, and even the legal practices of other countries. The pen in their hand rises not only to write a verdict on a file but to reinterpret the law when necessary.

What was emphasized in judge and prosecutor training in the past was the simplicity of “apply what the law says.” Now, topics such as critical thinking, comparative law, and human rights norms have gained weight in training programs and law schools. This affects the mindset of judges. Now, when a court resolves the case before it, it tends to make a decision by looking not only at Turkish legal texts but also at the spirit of the Constitution, the principles of universal law, and important decisions made in similar cases before.

The “Unification of Jurisprudence Decisions” folders that once hung on the wall of the Court of Cassation were perhaps just dusty documents. Now, high court decisions reach all legal professionals instantly in the digital environment, are discussed, and are analyzed in seminars. Judges are moving from being dispute referees in the classical sense to becoming legal explorers and interpreters. This creativity is also reflected in the language of the decisions: It is possible to see passages in reasoned decisions that resemble literary texts and contain philosophical quotes. Some decisions attract so much attention that they are awaited with curiosity by the public, just like an important bill.

One aspect of this change is the increase in the sense of responsibility. In the past, a judge would limit themselves by saying, “I applied the law, my duty is done.” Now, they think more about the social impact of the decision they make and the legal result it creates. For example, a young lawyer working as a rapporteur at the Constitutional Court prepares a report by keeping in mind the question, “Will this decision affect thousands of files in a similar situation?” The active and creative judge profile has, in a way, become the engine of the rule of law.

Seeking Balance in Terms of the Rule of Law

This entire picture requires us to rethink the concept of the rule of law. If the rule of law is, in its simplest definition, the “rule of law,” then who will make those laws and who will apply them? The strengthening of the judiciary expands the ways individuals can seek their rights, which is positive. However, in a scenario where the legislative body becomes ineffective, is the will of the people removed from the equation? The principle of sovereignty ultimately manifests through the elected parliament. If the parliament remains passive and the judiciary constantly takes the initiative, the social legitimacy of the decisions may be questioned.

On the other hand, not every solution that comes through the judiciary closes the door to parliament. Was a court decision found to be unfair? Parliament can always intervene in the situation with a new legal regulation. Indeed, in Turkey, after the laws canceled by the AYM, Parliament passed new harmonization laws, and new provisions were introduced for the gaps criticized by the Court of Cassation. So, in fact, the law establishes a dialogue and balance mechanism within itself. The separation of powers works more like a dance of balance in interaction rather than a rigid wall.

In the final analysis, the Turkish legal system moving away from the Continental European tradition and approaching the Anglo-American model is not a one-way street, but a two-way learning process. While our courts learn Anglo-American jurisprudential courage, perhaps the Anglo-American system is also seeing and being influenced by the solid principles of written law from us (let us think of interaction on a global scale). What is important is to strengthen the access to justice for the citizen, who is the final consumer, and to deliver their rights.

Thought-Provoking Question: If judges continue to advance in the role of “law-maker” at this speed, what kind of advice will law schools in the Turkey of the 2050s give to their new graduates? “Be a good judge, ensure justice,” or “Be a good law-maker, shape society”?

There is a fact that both comforts and makes the reader think: Law is a living organism. As society changes, the law will also change. Sometimes by the hand of parliament, sometimes by the hand of the court… What is important is that the scales of justice always remain balanced. If justice is served at the end of the day, the name of the method can remain in the background. Let us see what kind of future this jurisprudence revolution of the Turkish judiciary will carry us to. For now, it is time to watch and learn, and to discuss and balance when necessary. The journey in pursuit of justice continues.