RECEPTION AND DEVELOPMENT OF THE SWISS CIVIL CODE IN TURKEY

Abstract

The history of legal transplantation and reception in Turkey is an old one: It started in the middle of the 19th century during the reign of the Ottoman Empire, it went on with the foundation of the modern Turkish Republic in 1923 and it still goes on with the view of full membership in the European Union. Common to all these endeavours is the ideal of becoming a part of Europe through internalising also its legal inheritance. The reception of the Swiss Civil Code was certainly one of the most important steps towards this. The aim of this article is to focus on the problems related to the application of this Code and its development in Turkey over the past eighty years. This time span will be analysed in three phases: The first phase can be extended up to 1980. In this period no major changes were made to the Turkish Civil Code but some complementary laws were passed. In the second stage, which would run from 1980 to 2002, one can recognize the efforts to modernise a code that started to lag behind the needs of society and contradict some of its values, especially in the area of family law. In this phase active were both the legislature, amending the code, and also the Constitutional Court, annulling several articles which violated the principle of equality. Parallel to these developments, the quest to revise the code in total found increased recognition. As a matter of fact, in 2002 the new Turkish Civil Code was put into force and introduced the third and, so far, final phase. But a close evaluation of the amendments of the second phase and of the new code shows that the legislature has mostly confined itself to translating provisions which were introduced to the Swiss Civil Code in the last 80 years. Original legislative contributions are very limited; allegiance to the source is extremely high. Therefore it can be concluded that even today the Turkish civil law system and the Swiss one overlap to a great extent. Although one would presume that implantation of a foreign civil code, reflecting especially the value judgements of its respective society, would bring on the need for greater adaptation and change, the development of the Turkish Civil Code does not verify this.