What is that on your Head? Turkey’s new Legislation Concerning the “Headscarf”
Seyla Benhabib
The rift that I saw one afternoon within an educated, affluent Istanbul family is running through the hearts and minds of millions of Turkey’s citizens in the aftermath of the Parliament’s resolution on February 10, 2008 to abolish strictures on the wearing of the headscarf in institutions of higher learning. I support removing the headscarf ban, as I would support reforming Article 301 (prohibiting “insulting Turkishness”), and I believe that the legislative package which the AKP has put forth so far carries within itself the potential for many progressive “democratic iterations” in Turkish society, whose reach will go beyond the ban on the scarf alone.
On a trip to Istanbul this past January, I was conversing with a close friend and her seventy-five year old mother about the Turkish elections of six months earlier, in which the Islamic AKP (Party of Justice and Progress) had won a clear parliamentary majority. While my friend’s Father, a devout and active member of the Turkish-Jewish community, had voted enthusiastically for the AKP, some of whose local officials had helped him restore an old synagogue in Istanbul, my friend’s mother had voted for the CHP (The Republican People’s Party). The CHP was founded by Atatürk in the 1920’s; it had transformed itself into a moderate social democratic party in the 1970’s but now was promoting a virulent form of “laicism,” a separation of religion and public life so extreme that some claimed it bordered on national fascism. Surprised by this choice, I asked my friend’s mother why. Her answer was clear: “I believe that, throughout human history, religion has been the source of all division and strife among human beings.”
The rift that I saw that afternoon within an educated, affluent Istanbul family is running through the hearts and minds of millions of Turkey’s citizens in the aftermath of the Parliament’s resolution on February 10, 2008 to abolish strictures on the wearing of the headscarf in institutions of higher learning. While North American observers such as Noah Feldman are quick to see in this resolution one more move on the part of the AKP toward embracing liberal-democratic freedoms (NY Times, Saturday, February 9, 2008), both the resolution itself and the political forces it could unleash are more complicated, and more troubling. Initially, the decision to reform Articles 10 and 42 of Turkey’s Basic Law, which had justified the banning of wearing scarves and “turbans” in institutions of higher learning (as interpreted by Turkey’s Constitutional Court), included another motion to reform the notorious Article 301 prohibiting “insulting Turkishness.”
It has been used by many nationalist and ultra-nationalist prosecutors to bring lawsuits against writers and intellectuals such as Orhan Pamuk, Elif Safak, and the assassinated Armenian journalist, Hrant Dink. This proposal was dropped. Prime Minister Erdogan claimed that the reformulated version of the Article was not ready, but it is more likely that the AKP made this move in order to gain the support for lifting the headscarf ban from the nationalist groups in Parliament who opposed the reform of Article 301. This political compromise means that one of the most anti-democratic and anti-liberal articles of the Turkish Basic Law remains in place (Art. 301), while religion now can reassert its place more visibly than ever before in the Turkish public sphere. Nevertheless, I support removing of the headscarf ban, as I would support reforming Article 301, and I believe that the legislative package which the AKP has put forth so far carries within itself the potential for many progressive “democratic iterations” in Turkish society, whose reach will go beyond the ban on the scarf alone.
A principle of non-discrimination
Despite all the political fanfare, the legislative level the alterations introduced into Turkish Basic Law’s (TBL) Articles 10 and 42 seem at first quite minor. But they are not. Article 10 of TBL concerns “Equality in Front of the Law,” and proclaims that “Everyone, regardless of distinctions of language, race, color, gender, political belief, philosophical conviction, religion, ethnicity and like grounds, is equal in the eyes of the law.” Furthermore, “Women and men possess equal rights. The state is responsible to ensure that this equality becomes effective.” The changes come in the 4th paragraph of the Article, which in its older version read: “Organs of the state and administrative authorities are obliged to act according to the principles of equality before the law in all their transactions.” The new version reads: “Organs of the state and administrative authorities are obliged to act according to the principle of equality before the law in all their transactions and in all activities pertaining to the provision of public services.”
The Turkish Parliament has thus upheld the principle of non-discrimination, not only against religious individuals, but all others as well, on the grounds of the illegality of “distinctions of language, race, color, gender, political belief, philosophical conviction, religion, ethnicity and like…” Not only is gender discrimination emphatically declared to be against the law, but other distinctions such as those of differences of language and ethnicity as well are considered illegal. Within the Turkish context, where approximately 15 million Kurds live in the country and speak their own languages as well as Turkish, this affirmation by Parliament gains multiple different meanings. If some deputies of the AKP party and others entertain the hope that Turkey one day would adopt Sharia law, upholding the inequality of the sexes, they now have their own legislative actions to contend with. Ironically, the egalitarian and civic-republican legacies of the Turkish Kemalist tradition led the Parliament to formulate a resounding restatement of the principle of non-discrimination in the eyes of the law and in the procurement of public services for all Turkish citizens.
Nonetheless, it is ambiguous whether the providers as well as the receivers of public services may benefit from non-discrimination. Does the law intend to protect only religious women against discrimination in receiving educational, medical and other services or does it also intend to protect those who provide such services from discrimination? The difference between the two is enormous. If the law protects not only the recipients but also the protectors of public services, then teachers, government officials, doctors, attorneys, and indeed, the President’s wife, would be able to wear the head scarf in their official capacity and in the performance of official functions. The opposition deputies from the CHP (People’s Republican Party) justifiably raised this concern in their depositions to Parliament.
From a moral standpoint one could argue that the distinction between the receivers and providers of public services is indefensible. What matters is that the state protect the individuals’ freedom of conscience and right not to be discriminated against on account of matters of faith. One may poignantly recall in this context the case of the Afghani-German school teacher of history, Fereshta Ludin, who was banned by the Baden-Wuerttemberg Legislature from teaching with her head covered. (See Benhabib, The Rights of Others, ch. 5 for further discussion of this case) At the present time, Ms. Ludin would not be able to teach in a Turkish public school, either. But is this a principle that can be supported with good reasons? In the Turkish case, it is often asserted that in the public sphere, laicité, understood as the strict banning of sectarian religious symbols in the provision of state services, must be upheld. The German legislators reasoned likewise in the Ludin case: a woman wearing the headscarf, it was said, could not represent adequately and convey to her students the values of the German Republic. In both cases the value of the “appropriate representativity of the public sphere” was not only invoked but given precedence over the moral right of the individual to express his or her freedom of conscience.
The reformed Article 10 has other ramifications as well: if discrimination on the grounds of religious belief is against Turkish law, does this mean that a Jewish student attending a Turkish University wearing a yarmulke or a Christian student, wearing a cross, are equally protected as are Turkish girls wearing the head scarf? And if not, why not? And what about the long-standing practice of not permitting non-Muslim Turkish citizens from working in many governmental administrative posts? In short, Article 10 permits many unexpected iterations which go well beyond the sole intention of lifting the ban on the scarf.
The legislative revision of Article 42, which pertains to “The Right of Education and Instruction” in the Turkish Basic Law, is more straightforward, although this Article contains many clauses of ambivalent, and even repressive, political import, such as the claim that “No language other than Turkish can be taught or instructed in any institutions of learning and instruction as a mother tongue.” Leaving such clauses in place, the reforms of February 10, 2008 simply added that “No one can be denied their right to attain higher learning on the basis of reasons not clearly formulated in writing by law. The limits of the exercise of this right are determined by law.” Authorities such as instructors, professors, as well as administrators who took it upon themselves to ban the entry of women and girls wearing the headscarf into these institutions or who prevented them from sitting for their exams or to be orally examined with their heads covered etc. are thereby told that they were acting against the law. In many instances, even local officials in public health care clinics were reported to have rejected to serve those wearing the scarf.
What are they afraid of?
What are secular Turks who oppose these reforms scared of? In the first place, they fear that, literally and metaphorically, the face of Turkey will be changed and that Turkey will become more like Indonesia or Malaysia than the pluralist, western-style, secular Islamic democracy they want it to be. The opposition leader Deniz Baykal brought this to a pithy formula: “Malaysia or Italy?” Which way will Turkey go? There is also the legitimate worry on the part of many non-observant Muslim girls and women that the new law will encourage religious groups to pressure them into conformity. Given the imprecision of the new legislation, demands may also be made to have girls in high schools and middle schools cover their heads as well. What, in fact, is the difference between a 14-year old young girl in her puberty covering her head and a 17-year old attending the University? Is it that we regard post-high school graduates as being more capable of autonomous decision than a high school student? Are we then protecting the right of these women and girls to wear the headscarf because we regard them as having exercised an autonomous choice? But isn’t the woman’s obligation in Islam to cover her head less a matter of her own decision than of her religion’s demand that she not be publicly accessible and seductive to men unrelated to her? Since the theological basis for girls and women covering their heads is quite unclear in Islam, and many Muslim communities interpret the Islamic texts differently and ask women to cover themselves in different ways, there is still room for great ambiguity about what is expected from women and why.
But there is also great deal of fear-mongering on the part of the opposition, which contends that the spread of the use of the headscarf and the rise of Islamic piety in general, are related to the influence upon Turkish life of political Islamist groups such as Hizbullah. There is scant evidence for this. Some of these concerns are not at all unreasonable, and it seems to me that the new legislation, far from settling the issue of the scarf, will lead to further “democratic iterations” around the restructuring of religion and the public life in Turkey. In Another Cosmopolitanism I introduced the concept of “democratic iterations” in order to describe the following phenomena: In the process of repeating a term or a concept, we never simply produce a replica of the original usage and its intended meaning: rather, every repetition is a form of variation. Every iteration transforms meaning, adds to it, enriches it in ever-so-subtle ways. In fact, there really is no ‘originary’ source of meaning, or an “original” to which all subsequent forms must conform. It is obvious in the case of language that an act of original meaning-giving makes no sense, since, as Wittgenstein famously reminded us, to recognize an act of meaning-giving as precisely this act, we would need to possess language itself. A patently circular notion!
Nevertheless, even if the concept of ‘original meaning’ makes no sense when applied to language as such, we may think that it is not so ill-placed in the case of documents such as laws and other norms. Thus, every act of iteration might be assumed to refer to an antecedent which is taken to be authoritative. The iteration and interpretation of norms, and of every aspect of the universe of value, however, is never merely an act of repetition. Every iteration involves making sense of an authoritative original in a new and different context. The antecedent thereby is reposited and resignified via subsequent usages and references. Meaning is enhanced and transformed; conversely, when the creative appropriation of that authoritative original ceases or stops making sense, then the original loses its authority upon us as well. Iteration is the reappropriation of the ‘origin’; it is at the same time its dissolution as the original and its preservation through its continuous deployment.
‘Democratic iterations’ are linguistic, legal, cultural and political repetitions-in-transformation, invocations which are also revocations. They not only change established understandings but also transform what passes as the valid or established view of an authoritative precedent. Democratic iterations are thus open-ended. In the Turkish context, the new legal reforms can lead to a heightened debate about the illegality as well as immorality of all forms of discrimination in the public sphere; just as they can lead to increasingly repressive measures against non-observant Muslims, and maybe, non-Muslims in general. But democratic iterations can also lead to “jurisgenerative politics,” when a democratic people, which considers itself bound by certain guiding norms and principles, reappropriates and reinterprets them to expand the arc of equality and freedom, thus showing itself to be not only the subject but also the author of the laws. On the one hand, rights claims such as freedom of conscience and equality before the law, which frame democratic politics must be viewed as transcending the specific enactments of democratic majorities under specific circumstances; on the other hand, such democratic majorities re-iterate these principles and incorporate them into democratic will-formation processes through legislation, argument, contestation, revision and rejection.
Productive or creative jurisgenerative politics result in the augmentation of the meaning of rights claims and in the growth of the political authorship of political actors, who make these rights their own by democratically deploying them. Sterile, legalistic or populistic jurisgenerative processes are also conceivable. In some cases, no normative learning may take place at all, but only a strategic bargaining among the parties may result; in other cases, the political process may simply run into the sandbanks of legalism, or the majority of the demos may trample upon the rights of the minority in the name of some totalizing discourse of fear and war. Religious and ultra-nationalist groups in Turkey may now seize the opportunity provided by these reforms to create a homogenizing and repressive Islamic-Turkish culture, where strict dress codes would be imposed on all, where the use and sale of alcohol would be restricted, more mosques and places of worship would be built, while non-Muslim religious buildings and artifacts would be ignored and fall into disuse etc. Such trends have been visible in the past and they will become more visible again. It remains to be seen whether those who support this legislation on the basis of non-discrimination and freedom of conscience will prove capable of jurisgenerative politics themselves by extending the reach of democratic iterations to fight against other instances of discrimination in Turkish society. The struggle for the hearts and minds of Turkish citizens has intensified.
Seyla Benhabib is Eugene Meyer Professor of Political Science and Philosophy at Yale University. Her most recent publication is Another Cosmopolitanism, with comments by Jeremy Waldron, Bonnie Honig, and Will Kymlicka (Oxford University Press, 2006).
5 Mar 2008
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