| LAND, MARRIAGE, AND THE LAW IN TURKISH VILLAGES P. STIRLING We mean by law, at least in Turkey, the body of rules of conduct which are derived directly or indirectly from the authority of the Grand National Assembly, and which, with the backing of the legitimate force of the State, are applied, or would in appropriate cases be applied, by the courts.(1). Such a body of rules, backed by the central power of the government and applied by judicial institutions, exists in all literate, large scale societies. But besides these formal rules, all communities and societies acknowledge a mass of other rules of conduct—morality, custom, etiquette, 'decent behaviour'—many of which carry informal, often automatic sanctions. People know, or think they know, what is expected of them in most of the thousands of social situations of daily life; normally, this is also what they expect of themselves. They also know, or believe, that the consequences of disappointing these expectations are unpleasant—the disapproval of intimate friends and kin, the loss of prestige or power, ostracism, the withdrawal of neighbours' help in day-to-day activities, or the loss of support for some enterprise they are planning, divine anger and punishment, misfortunes caused magically by the ill-will of neighbours. This heterogeneous collection of sanctions which operates outside the official judicial system, I shall call informal social controls, and I shall refer, to the heterogeneous collection of rules which they serve to enforce as the informal system. I use these terms because the more usual words, such as ' 'custom' or 'morality', have much more limited meanings, and yet also convey implications I wish to avoid. The distinction I have made plainly leaves many problems open, but I cannot here pursue a more precise statement. The informal system of social control is, in at least three ways, more fundamental to society than the system of law. In the first place, quite a number of small scale, non-literate, autonomous societies manage to keep going, that is, to preserve internal order and continuity, with no judicial institutions whatsoever. Even within larger political units, fairly remote communities, especially minority communities, sometimes ignore entirely the State judicial system except in so far as they are compelled unwillingly to answer criminal charges before it. Secondly, the bulk of daily activities of people in any society are controlled not by the law, but by the rules of the informal system. Where the rules of the two systems coincide, as they often do, it is much more often the informal sanctions that keep us law abiding than the fear of being compelled to answer a civil or a |
| criminal case in court. Thirdly, it sometimes proves impossible to enforce laws which are opposed by strong informal sanctions, for example, the outlawing of minority religions or nationalist movements, or of witch-hunting activities in societies which believe in witchcraft, seldom effectively suppresses them. The rules of the informal system are not derived from laws; rather, rules normally become laws because, though they are already rules in the informal system, the informal social controls are inadequate to support them. Of course the complex life of a modern state requires that many extra rules should be incorporated into the formal system—company law, for example, or traffic regulations. These extra laws must be framed by people with expert knowledge, and cannot spring from the informal system, though even these must be consistent with it, and must be supported by informed opinion if they are to work satisfactorily. But in ordinary criminal and civil matters—theft assault, or inheritance, marriage, sale, and so on—the legal sanctions fill the gaps in the informal system. The criminal law does this directly, the civil law indirectly, by providing a means by which injured persons can apply formal sanctions against the wrongdoer. An effective method of settling disputes in a way that appears just to the whole society is an essential part of any system of social sanctions. If this theory of the law were completely true, all laws would be either the same as the rules of the informal system, or at least consistent with them. In fact, a hasty perusal of the development of English law shows that much adjustment and reform was aimed at bringing legal rules more into line with the accepted rules of the informal system— the development of the rules of equity seems to be a good example. In the large scale heterogeneous societies which we call sovereign states, the many different classes and groups have many different informal rules, so that one should strictly speak of informal systems in the plural. Even in a country like England, where the formal system has largely developed slowly by ad hoc steps from the informal system, considerable inconsistencies between the formal and the various informal systems are inevitable. Such inconsistencies are bound to make the legal system less efficient in stopping up gaps in the informal system. But the inconsistencies are likely to be far greater where one society takes over lock, stock and barrel a set of laws worked out in and for another society, whether they are taken over voluntarily by the educated ruling minority as in Turkey, or imposed by a colonial power, and whether they are intended as a measure of reform, or applied simply because the rulers have not thought of |
| applying any others. All this has often been said before. But it is usually said in terms of the relation between law and custom, with the assumption that law is fundamental, but may be permitted to make concessions, so long as these concessions are not serious, to something called 'custom', which seems to be thought of as a sort of arbitrary local habit. I do not wish to imply that law is unimportant; but its importance is often emphasized, while the part played by informal controls is as often overlooked. The importation of foreign laws into a society raises two obvious problems. What happens to the laws? And what happens to the society? Lawyers alone are competent to discuss the ways in which the society, by translation, and by new interpretation to meet new situations, alters the laws. The ways in which the laws alter the society is a problem for historians and sociologists as well as lawyers. But this second problem involves a third, one which I have seldom seen raised. What part do the courts play in the total system of social control? In what situations do people use the courts, how often, with what aims, and with what results? What is the relation between the formal and the informal system of social control. The study of the first problem is relatively easy, because the law is known and court records and law reports are available. The study of the second and third problems is another matter. It involves firstly a knowledge of the informal system of social controls, and then a careful examination of legal cases in relation to the whole background of the situation in which they are initiated, and to the consequences they have in the community to which the parties belong. Even in the most sophisticated societies, no systematic records exist, and the problem demands first-hand research. The ways in which people, consciously and unconsciously, bring pressures on each other, that is, apply informal sanctions to each other's behaviour, can only be understood by living among them and observing them systematically. Even membership of, or acquaintance with, a community is not in itself enough, for informal social controls are by no means all obvious to those applying, or controlled by, them. I have myself worked this way in two villages of central Turkey, between November 1949 and August 1952, spending several months in each. I cannot claim full general knowledge of rural Turkey, but I have made some effort to check my conclusions by more widespread observations and inquiries. Moreover, many of my findings can be plausibly related to conditions which are known to exist in other parts of Turkey. At the time of my field work, I was not concentrating specifically on the problems of the acceptance of the new law, and I had no opportunity of studying disputes which went to the courts. But, |
| inevitably, I learned a good deal about the villagers' use of an attitude to the courts, and to the new law. In this article, I wish to discuss only two topics, landholding and marriage. These two examples are somewhat contradictory, for while the new laws of land tenure and inheritance are, at least in theory, roughly consistent with the informal rules, and acceptable to the villagers, the new laws on marriage are widely different from the informal rules and largely ignored. LAND AND INHERITANCE The Turkish Civil Code (Article 633) rules that land can only be acquired by appropriate registration in the Land Register. In the villages in which I worked, only part of the land is registered at all, and almost all the entries are out of date. Very few people are the registered owners of their land. At present, registration commissions are at work, registering land in Turkey, but it will be some years before their work is complete (2). In practice, this anomalous situation makes little difference to the villagers, since their rights to the land are recognized by those people whose recognition matters most to them, namely, their neighbours; the administrators and the courts also accept these informally established rights, where either the land is not registered, or the registration is no longer valid. That the situation is theoretically unsatisfactory does not matter to anyone except lawyers. If a villager's title to land is challenged, he will usually defend it by arguing that he acquired it by legitimate means, that is, by inheriting it, by buying it, or by occupying and using it when it was either without an owner, or was a superfluous part of the village pasture. Once a man has been permitted to plough and work village pasture for two or three years without being turned off, it seems generally agreed that he has established informal rights to it. Where a man pays tax on his land, the tax receipts are regarded as documentary evidence that his ownership of it at the last tax assessment in 1939 or his subsequent acquisition of it, has been publicly acknowledged to be legitimate. Finally, of course, if a man holds a registration deed in his own name, this is regarded as clinching the matter. Disputes occur frequently, and many lie dormant for years because the plaintiffs are not sufficiently powerful or courageous to try conclusions with the occupier. Where an active dispute cannot be settled within the village, it goes first to the administrative officer of the kaza or county who is empowered to give a decision on limited issues, and within a limited period from the first claimed infringement. Presumably, this officer gives a decision based on evidence from the village, without a full legal |