Law and Tradition

ARE LAWS THE PRODUCTS OF change or producers of change? It is interesting to note the relevance of this question in light of the efforts at legally enacted social change in Turkey and Pakistan. In Turkey, the dominant elite has adopted, wholesale, various Western legal codes in an effort to secular-ize its legal system and bring about posi- tive human rights change. In Pakistan, the movement is toward greater “Islamization” of laws deemed “secular” by the controlling religious institutions. Like the failure ofTurkcy’s legal secularization, Pakistan’s attempted Islamization, in light of blatantly unlslamic human rights violations and the pervasive role of extra-Islamic customs, is similarly ineffective. That is to say, although the purported trends in the two countries are dissimilar – Turkey wanting to secularize and Pakistan wanting to Islamize – if the purpose of secularization and Islamization is to grant basic humans rights to the country’s citizens despite traditional pulls against the granting of such rights, the countries’ aims are in fact parallel and the same analysis of effectuality can be applied to both.

AsTurkey and Pakistan struggle to define the relationship between tradition and their respective legal systems, it is helpful to look at examples of how other countries dealt with the question successfully in light of their own traditions. For example, the issue of law’s role in shaping social biases was centrai to America’s seminal equal protection case, Plessy v. Ferguson. This case has had a strong influence on scholarly understanding in America of how law defines and actualizes equality. As such, in a limited sense, Plessy and subsequent commentary on the case can help set up a useful intellectual framework within which one can analyze the struggle for equality in Muslim countries.

Consider, for example, the following statement by the Supreme Court in Plessy over whether racial segregation should be solved through legal change:

If the two races are to meet upon terms of social equality·, it must be the result of natural affinities __ This end can neither be accomplished nor promoted by laws that conflict with the general sentiment of the community upon whom they are designed to operate. . . . Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences.

Plessy’s position on law’s role in social change is that the community’s biases are sentimental or social, and law functions in a different realm, responding to and working with these prejudices rather than restructuring them. However, the current perspective on the relationship between law and social biases is that law can be used to help change prejudice. If, for example, law defines equality in terms of integration rather than “separate but equal,” people’s perceptions of what constitutes equality will change as well.

The necessary qualification to this position, however, is that although law can be used to precipitate social change, it cannot wholly ignore the traditions and sentiments of the society it seeks to change. For example, as one commentator on Plessy pointed out, equality “is not self-defining . . . Equal protection has not been reduced to any formula; its content cannot be determined by reference to any code.” Instead, the court has defined equality by balancing “individual liberty and the demands of organized society” and taking into account “what history teaches are the traditions from which developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound.”1

If integrated into a single intellectual framework, these three positions – ( ? ) that law is independent of social biases; (2) that law is intrinsically linked with and can therefore change social biases; and (3) that using law to enact social change is possible but only if social biases are dealt with substantively in the law rather than superficially covered up by it – shape and constrain the analysis of the legally enacted social change projects in Turkey and Pakistan. The social reform movement in each country is at odds with the people it applies to because the countries’ traditions, whether Islamic or extraIslamic, are not taken into account sufficiently and attempts at equal protection reform are therefore ineffective. The case of women’s rights is instructive on this point: no matter which way the trend is moving – secularization or Islamization – women’s rights continue to be inadequately protected. Again, the framework set up by Plessy and related commentary suggests that the problem lies in the relationship between the law and its subjects’ traditions.

In “Non-recognition of Post-modern Turkish Socio-legal Reality and the Predicament of Women,” Ihsan Yilmaz discusses the elite’s project of social engineering through integration of Western law into Turkish society so that Western law, at the exclusion of Islamic law, is used to govern the country. However, multiculturism continues to flourish in the form of legal pluralism – the elite’s attempts at social engineering did not account for the fact that “in all communities, a number of modes of normative orderings coexist with the official.” “Unofficial local Islam,” despite the state’s attempted suppression of it in public life, “has continued to manifest patterns of leadership and religious loyalty independent of the official system.” Yet the state continues to refuse recognition of this “socio-legal reality” in its official legislation. Muslim “legal postulates” have a strong influence on social practice, but they are not integrated into law.

As such, despite its attempt to bring about positive change in women’s rights, Turkey has refused to acknowledge the role of Islamic tradition and the pervasiveness of this tradition among its people’s conceptions of legitimacy, and has therefore created a contradictory situation that is prejudicial toward women. For example, Turkish law requires that marriages be registered with the state for them to be legitimate. Many Turks, however, continue to place legitimacy of marriage in the religious ceremony, nikkah. As such, couples who have had nikkah consider it legitimate to live together, and this has led, at times, to women being left pregnant or with children by husbands who feel free to desert them since their union was never made official by the state. More importantly with respect to the legal question, the state is helpless in getting these abandoned women their alimony; it created a contradiction by rooting marital legitimacy in official marriage, but a woman who is married according to the controlling cultural norms of the country – the nikkah – is left with no official rights.

This failure is attributable to the fact that Turkey has assumed it can change social norms without integrating these norms into substantive law. The Plessy paradigm proves instructive on this point. “Tradition is a living thing. A decision of this court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound.”

Pakistan presents a similar contradic- tion. Like Turkey, Pakistan’s family law is largely ineffectual; Rubya Mehdi, in “Islamization of the Law in Pakistan,” provides two reasons for this: (i) these laws are weak because they make certain actions (such as polygamy) illegal but not invalid; and (2) there is a lack of systematic Islamic rationale for these laws, thus making them vulnerable to attack by the Traditionalists. The first suggests that tradition is being incorporated but not developed to fit the goal of social change, and the second suggests that tradition is not being sufficiently aceounted for in the articulation and application of the law in question. Moreover, a third viable explanation for the law’s ineffectuality is that a social stigma is attached to women who are divorced or who remarry after getting an official divorce but not a religious one.

Again, the Plessy paradigm proves instructive. The racial biases Plessy dealt with are akin to the social stigma in the case of women’s issues in Pakistan. PostPlessy commentary argues that we must depart from this type of tradition; it is important for the law to develop from some traditions and to break away from others. Whereas the struggle in Turkey is to recognize the role of tradition, Pakistan’s struggle is to keep from submitting to it. In each case, the quest for substantive change through law, whether intended as secularization or Islamization, requires an intricate negotiation with the prevailing traditions of the people to whom the law will apply.