This chapter attempts to give an answer to a question arising from a project about the legal complications of secularism in Turkey. The question of meta-narrative about how to approach the subject in hand, and through which theoretical premises, automatically leads one to criticise the established arguments of state-centred legal positivism, especially when religion- and society-oriented voices are so loud. In this chapter, the strengths and weaknesses of positivism and its alternatives are analysed in depth. Not a single monist or pluralist theory proves to be absolutely superior in the end. Instead, their harmonisation is needed. Positivism holds the advantage of referring to the power and enforcement capacity of the state. Pluralism, however, is realistic on another ground, as it pays attention to the chaotic nature of socio-legal phenomena and claims that law should never be understood and applied in a linear way or in closed systems. The dialogue on this theoretical spectrum of law merges with the chapter's starting point where the question of Turkish secularism required the most realistic approach to law and legality in general.
TopIntroducing The Definitional Problem
What is law? Is it the Austinian ‘command of the sovereign’ (Campbell, 2005); is it what society does in reaction to or irrespective of the sovereign; or is it what already encapsulates us all in a cosmic hub? The positivist school advocates the first (Hart, 1994); legal anthropologists emphasise the second (Moore, 1978; Merry, 1988); and natural law traditions promote partaking in the third – their envisaged higher order – in a conscious and ethical manner (George, 1999; Porter, 2005). Can law be all of them at the same time, or a combination outside them? The answer is: it is a matter of context and perspective. When one acknowledges that there is a plurality of factors at play, it will be only fair to assess law in a multitude of ways. Determining the context will mean to determine what law is for that particular scenario.
Legal scholars attempt to define law along with its different sources, grounds of application, functions and limits (Kagan, 1995; Galligan, 1995; Reichman, 2008). The diversity of viewpoints has resulted in a vast literature of legal theory. From among the various major legal schools, two are selected in this essay: legal positivism and legal pluralism.
In my view, both of these conceptualisations are problematic as well as useful, albeit for different reasons. Since positivism is an established paradigm both internationally and in Turkey, its critical analyses should precede, thus may lead to, pluralist alternatives. Pluralism, as a provider of socio-legal methodology, is a suitable and unavoidable instrument to construct a vigilant normative map. Law’s reality is certainly contingent upon such a map of competing claims, not just the state power.