By Cem Tecimer
In 1926, the young Turkish Republic abandoned its codified Islamic personal status law and replaced it with the secular Swiss Civil Code. The new republican government, replacing its Ottoman predecessor, also adopted the Swiss Code of Obligations laying out the law of contracts. Both of these legal transplants were part of a larger movement concerned with a larger agenda to secularize the country’s legal system. The lawmakers at the time also enacted a law guiding courts on how to implement the newly adopted Civil Code to ensure that the transition from an Islamic personal status law to a secular one would be as smooth as possible. According to this “implementation statute,” legal transactions concluded under the old law were deemed valid, but new transactions had to comply with the provisions of the new secular code. Article 1 stipulated that “[t]he legal consequences of events that took place before the Civil Code came into force shall be governed by the existing law at the time the events happened.” In Article 2, the implementation statute provided for an exception to the rule stipulated in the preceding article: while Article 1 of the implementation statute secured the legal validity of all kinds of legal transactions, such as contracts and marriages, concluded under the old Islamic law, Article 2 nevertheless stated that insofar as a transaction validly concluded under the old law violated the new and secular ordre public, that is, public policy in American law terms, it was to be considered null and void. Article 2, in relevant part, stated: “…rules that are, according to the new law, against public policy and general morals, as soon as the new law comes into force, shall be deemed inapplicable.”
Some Turkish people had married pursuant to the old Islamic law, and typically the husband in the marriage provided his wife with mahr, or more precisely with a mihr-i müeccel (delayed dower): a monetary obligation owed by the husband to the wife in the event of divorce or death. The Islamic rationale behind this obligation was the need for securing money for women, who, after death or divorce, may have otherwise been deprived of sufficient economic resources.
In a 1935 case, still under the presidency of Mustafa Kemal Ataturk, a case came before one of the chambers of the highest civil appellate court, the Turkish Court of Cassation (tr. Yargitay). In that case, the husband had assured his wife, whom he married under the old Islamic law, that he would pay her mahr in the event of divorce. The divorce took place during or right before 1935, thus under the new secular Civil Code. It is most likely that the husband, in an attempt to avoid paying the mahr, argued that his paying the mahr contravened public policy. He further could have argued that, although the promise to pay the mahr was validly made when the old Islamic personal status law was in force, his paying so under the new law would violate Turkey’s secular public policy. If true, pursuant to Article 2 of the Implementation Law of the Civil Code, the otherwise valid promise to pay mahr would have had to be deemed null and void, relieving the husband of his debt. But the Court concluded that the mahr obligation assumed under the old law was still valid under the new secular law, as it did not violate public policy.
In another case from 1959, a different chamber of the Court of Cassation disagreed with the 1935 ruling. In the later case, the Court concluded that the mahr agreement violated public policy as it incentivized the spouse who had been promised the mahr payment to obtain a divorce ruling, and this set up was clearly enjoined by the Turkish Civil Code.
The very same year, that is, again in 1959, the grand chamber of the Court of Cassation met to decisively rule on this split between the lower courts. In its majority opinion, the Court sided with the early decision of 1935, upholding the mahr’s validity under secular law. The Court criticized the 1959 decision deeming mahr contrary to public policy by ruling that the lower court had misinterpreted the mahr obligation:
[The mahr] claim is not a claim whose performance is contingent upon divorce, nor is it a divorce compensation. It is a claim and contractual obligation whose performance is [merely] deferred and delayed to [the date of divorce]. The Civil Code enjoins neither one of the spouses, during marriage, from giving one another money or property or committing to doing so at a later time.
To the majority, the obligation to pay mahr came into existence at the time the promise was made, that is, at the time of marriage. Further, the performance and the existence of a monetary obligation were different concepts. That the mahr’s performance had been delayed to the time of divorce did not change the fact that the mahr obligation was validly undertaken much earlier by the promise to pay it.
A single judge dissented: Recai Seckin, who would later become a justice on the Turkish Constitutional Court that was established two years after this case. Citing some Muslim jurists, he decried the majority view by defining mahr as “compensation for the male’s usage of the female genital organ” (which suggests that he was either confused about or oblivious to the mahr and maintenance distinction). He further argued that, “[b]ecause the Civil Code does not foresee such usage, a payment in such a form would be in total contravention to today’s understanding of public order.” Judge Seckin, in arriving at this conclusion, relied on the idea that the wife had the right to abstain from having sexual relations with her husband in the event that some of the mahr was not paid to her, provided that part of the mahr—ordinarily promised as payment at the time of divorce—had, for some reason, become due and payable. His arguments did not prevail.
In sum, despite some dissenting voices, the secular Turkish judges found an innovative way of integrating an Islamic legal concept into Turkey’s secular legal system. This move points to the potential blurriness of the line ostensibly dividing religious law from its secular counterpart.
 See generally Hifzi Veldet Velidedeoglu, The Reception of the Swiss Civil Code in Turkey, 9 Int’l Soc. Sci. Bull. 60 (1957).
 Velidedeoglu, The Reception of the Swiss Civil Code, at 61.
 See generally H. N. Kubali, Modernization and Secularization as Determining Factors in Reception in Turkey, 9 Int’l Soc. Sci. Bull. 65 (1957).
 Implementation Law of the Turkish Civil Code, No. 864 (1926), art. 1.
 Implementation Law of the Turkish Civil Code, art. 2.
 Court of Cassation Decision, 2nd Civil Chamber, No. 1166/1000 (1935). Ataturk was the founder of the Turkish Republic and a secularist who led all of the aforementioned legal transplantation projects and imported European codes to the Turkish legal landscape.
 Court of Cassation Decision, 2nd Civil Chamber, No. 2984/2385 (1959).
 Court of Cassation Decision, Council for the Unification of Case Law, No. 1959/14 (1959).
 Court of Cassation Decision, No. 1959/14.
 Court of Cassation Decision, No. 1959/14.