By Cem Tecimer
Professor Kim Lane Scheppele has convincingly drawn attention to the fact that most legal scholarship on citations of foreign law by supreme or constitutional courts tends to focus on citations of “positive” models, that is, models to which the jurisdiction citing them aspires. Professor Scheppele pluralizes the universe of citations by adding the “aversive” category, suggesting that there are also negative models, especially among constitution drafters, often viewed as examples to be avoided.
Professor Intisar Rabb has expanded Professor Scheppele’s work to cover negative citations to foreign law, and particularly to Islamic law, during judicial review. Professor Rabb takes as her starting point of inquiry an opinion authored by Justice Felix Frankfurter, in which he makes reference to the notion of kadijustiz, a term coined by Max Weber. The word has a negative connotation, referring to justice that is arbitrary, non-deliberative, and whimsical. Justice Frankfurter, in his dissent to Terminiello v. City of Chicago, referred to kadijustiz this way: “We do not sit like a kadi under a tree, dispensing justice according to considerations of individual expediency.”
This kind of shallow invocation of the word, as Professor Rabb has pointed out, has at least two shortcomings: first, it perpetuates impoverished notions about Islamic law and justice, and second, it clouds judicial opportunities to engage in meaningful and genuine comparative reasoning.
Searching for the terms “kadi” (Ar. qādī/Islamic judge) “kadi adaleti” (qādī justice, or as pejoratively used by Weber, kadijustiz) and “kadi sistemi” (qādī system) in the judgments of the Turkish Constitutional Court from the year of its inception in 1961 to this day, I found only a single reference to the term “kadi sistemi,” which was used in a 2013 case. To put it somewhat crudely, there seems to be one Turkish constitutional law equivalent of Justice Frankfurter’s dissent in Terminiello v. City of Chicago in terms of making explicit reference to the concept of kadijustiz, and using the term somewhat pejoratively to denote, by drawing on impoverished notions of Islamic law, the arbitrariness and whimsical nature of the legal situation being adjudicated.
In 2012, Turkey’s ruling party, the Justice and Development Party, passed the Law on Mediation in Civil Disputes. In an abstract review case, the leading opposition party, also known for its commitment to an assertive mode of secularism, challenged the law before the Turkish Constitutional Court, arguing that numerous provisions were in violation of the Constitution. Article 4 of the said law stipulated that the mediator and the parties had to abide by strict rules of confidentiality in dealing with submissions from both parties, and Article 33 of the same law prescribed certain sanctions on those who breached the duty of confidentiality prescribed by Article 4. In the relevant section of their brief, the opposition party wrote:
Under the guise of confidentiality, all rights granted to [Turkish] women by our Civil Code will be lost. Our worries about this matter are not unwarranted: England and Canada have allowed Muslims to resolve their disputes through mediation according to their own belief systems, and that has resulted in serious women’s rights violations. In other words, in the event that parties [to a dispute], under societal pressure, ask for their dispute to be illegally resolved in accordance with the rules of religious orders and customs, because of the confidentiality rule, this will be possible. Since there will be no means to supervise [mediation] activities carried out confidentially, this will give rise to an alternative qādī system … In Austria, however, the rule of confidentiality in mediation extends only to the mediator in his/her capacity as a professional [e.g., lawyer, doctor etc.]. It does not extend to parties.  Countries [e.g., Austria] which we consider to be our models are like this….
The brief of the opposition party thus presented Western European countries as models that Turkey ought to strive to. But it referenced kadijustiz as a concept to be strictly eschewed, that is, an aversive model to be avoided.
The context in which the suggestion, that having a strict rule of confidentiality, might yield disadvantageous results for women should be noted: the opposition party is known for its strong espousal of laïcité—a French-inspired modal of secularism that is notably stringent as to social and public manifestations of religion. The opposition party’s concern is that, as a predominantly Muslim country, passing the law with extensive confidentiality requirements will result in diminished state scrutiny of dispute resolution mechanisms. Those mechanisms will, in turn, give rise to more traditional ways of solving legal disputes. The opposition party, of course, argues based on an assumption that more traditional ways of resolving disputes will involve making use of Islamic law-inspired customs rather than secular state law, the former the party seems to contend are disadvantageous to women. The brief fails to specify and concretize the ways in which these concerns might be realized and thus makes the reader wonder to what extent the brief is a product of impoverished and erroneous notions of Islamic and customary law.
The brief went on to argue that this stringent rule of confidentiality was contrary to Article 141 of the Constitution. That article requires that “Court hearings shall be open to the public.”
The Court, citing plaintiff’s concerns over an alternative qāḍī system, quickly dismissed the claim, essentially by a simple textual reading Article 141 of the Constitution that it would apply to court hearings only. The Court concluded that, as Article 141 only referenced “court hearings” with regard to the publicity requirement of proceedings (as per the interpretive canon dictating that the expression of one thing implies the exclusion of the other), Article 141 did not extend to alternative dispute resolution mechanisms that were outside the purview of the courts.
The Court missed the opportunity to meaningfully engage with the invocation of the term “alternative qādī system” and unpack the anti-Islamic and prejudicial undercurrents behind the use of this term. Nevertheless, the quoted section of the opposition party’s brief is quite revealing in many ways. First, confirming one of Professor Rabb’s concerns, its use of a kadijustiz-related term perpetuates the idea of Islamic law and the Muslim judge as arbitrary. Moreover, the authors of the petition seem to understand the term as also referring to some sort of alternative and more specifically Islamic legal system that ultimately challenges the secular legal order. Second, confirming Professor Rabb’s second concern, the invocation of the term is quite shallow; the brief does not intend to meaningfully engage Islamic law while invoking it as an aversive model. The brief’s contention that mediation according to Islamic law and customary rules produced undesirable results from a women’s rights standpoint in England and Canada is equally shallow in its description: the brief merely makes superficial reference Islamic law in alternative dispute resolution mechanisms as disadvantageous to women’s rights. It does not reference any concrete instance to corroborate this claim. Third, to borrow Professor Scheppele’s terminology, the brief is a perfect example of a combination of both aspirational and aversive citation of foreign law. While the brief clearly presents the “alternative qādī system” as a system that challenges the secular legal order and thus as a system to be avoided, invocations of England, Canada, and ultimately Austria are intended to create a contrast in the mind of the justices: the fact that the petitioners hastily add the words “countries which we consider to be our models” after mentioning Austria is further evidence that in the minds of some Turkish legal and political elites, particularly those who are currently in the opposition, the impoverished idea of kadijustiz still takes the meaning of an undesirable system of justice, much like it did in Justice Frankfurter’s mind nearly seventy years ago.
Nevertheless, this case is the only brief I was able to find in which Islamic law was targeted as per se undesirable and conceptualized as a whimsical and arbitrary mode of adjudication. Thus, it is not possible to generalize from this singular incident to claim that the pejorative connotation of the term kadijustiz is prevalent among Turkish elites, especially opposition members. Further, unlike Justice Frankfurter, Turkish Constitutional Court judges dismissed the brief’s impoverished use of the term, hinting at a judicial rejection of such shallow and erroneous invocations of Islamic law as an aversive model.
 Kim Lane Scheppele, Aspirational and Aversive Constitutionalism: The Case for Studying Cross-constitutional Influence through Negative Models, 1 Int’l J. Const. L. 296 (2003).
 Scheppele, Aspirational and Aversive Constitutionalism, at 300.
 Intisar Rabb, Against Kadijustiz: On the Negative Citation of Foreign Law, 48 Suffolk Uni. L. Rev. 343 (2015).
 337 U.S. 1, 11 (1949).
 Rabb, Against Kadijustiz, at 376.
 Law on Mediation in Civil Disputes, No. 6325 (2012).
 Law on Mediation in Civil Disputes, No. 6325, art 4.
 Law on Mediation in Civil Disputes, No. 6325, art 33.
 Brief of Petitioner, Republican People’s Party in Turkish Constitutional Court judgment, Matter No. 2012/94, Decision No. 2013/89 (2013), available at http://www.resmigazete.gov.tr/eskiler/2014/01/20140125-16.htm (emphasis added).
 Turkish Const. art. 141.
 Turkish Constitutional Court Judgment, Matter No. 2012/94, Decision No. 2013/89 (2013), available at http://kararlaryeni.anayasa.gov.tr/Karar/Content/c6af87a2-29fa-47d9-9bc0-6c085a20a681?excludeGerekce=False&wordsOnly=False.