The Hegemonic Preservation Thesis Revisited: The Example of Turkey

Abstract

This paper offers a critical rereading of the history of judicial review of constitutional amendments in Turkey. We argue that, contrary to appearances, the claim to a power of amendment review on the part of the Turkish Constitutional Court does not fit Ran Hirschl's model of hegemonic preservation, which aims to explain the genesis of strong constitutionalism and judicial review as the result of an anti-democratic elite consensus that tries to leverage the prestige of judicial institutions. Attempts to impose Hirschl's model on the constitutional history of the Turkish Republic have been very popular in the jurisprudential literature on Turkey, but the model offers a misleading and incomplete diagnosis of what ails Turkish constitutionalism. It is not the supposed excessive strength of formal constitutionalism and judicial review in Turkey, but rather the normative weakness of the Turkish Constitution of 1982, that is responsible, at least in part, for Turkey's repeated constitutional crises. We therefore suggest an alternative template for understanding Turkish constitutional history-the theory of sovereignty as the power to decide on the exception put forward by Carl Schmitt.

The genesis of the ‘Exceptional’ Republic: the permanency of the political crisis and the constitution of legal emergency power in Turkey

“…who determines when and where strict constitutional legality must give way to make room for a purely political form of guardianship of the integrity of the nation'. 24 The result was systematic deployment of extraconstitutional power, the continual invention of constitutional devices and legal institutions designed to suppress political conflicts which emerged from the fundamental contradictions of the republic, the greater exclusion of the masses from the centres of political decision-making, a growing distance between citizens and state apparatuses, an unprecedented degree of state centralism and the invasion of the life of society, 25 in other words, the formation of the unitary nation-state which has a permanent character of exceptionality. 26 The historical evolution of legal emergency power and the exceptional state in Turkey There has been a state of emergency for almost half of the history of political life in the Turkish republic.…”

The Relationship Between the Constitutional Court and Political Actors Between 1962-1980: A Critical Approach to the Hegemonic Preservation Thesis

“…Bu kuram özellikle Kemalizm'in otoriter yorumunun liberal düşünürler ve akademisyenlerce tartışmaya açıldığı, Post-Kemalist düşüncenin literatüre hâkim olduğu 2000'lerin başında popülerlik kazanmıştır. Yakın zamanda bu kuramı Mahkeme kararlarına odaklanarak eleştiren kimi çalışmalar olsa da, bu çalışmalar azınlıkta kalmaktadır (Seven ve Vinx, 2017;Alpbaz 2020;2019;Hazama, 2012). AYM'nin kararlarına odaklanan bu çalışmalar HKT'nin tezlerini çürütmek için karar analizine odaklanmış, fakat farklı aktörlerin AYM'ye karşı neden çatışmacı veya destekleyici bir tutum içerisine girdiği sorusuyla ilgilenmemiştir.…”