| When it does become expedient to have a marriage registered, people hasten to do so. Professor Timur quotes the effect of pensions for wives of serving soldiers, both during the second world war, and during the Korean war. But whether the registration of marriages for such very direct motives represents, or brings about, an increased acceptance of the new laws seems to me doubtful. The instituting of the new legal system entails the complete disappearance of the old one. I do not know to what extent in the old days the courts supported the traditional rules of marriage, nor how far the villagers trusted and used the courts. But it certainly looks as though the abolition of any formal sanctions which might fill the gaps in the existing Islamic informal marriage system has opened the door to a relaxing of the rules, and even to malpractice. For example, though the villagers know that a Muslim woman who has lost her husband through death or divorce should wait for the iddet, a period of some three months, women are frequently remarried to widowers within this period. When I pointed this out, people shrugged their shoulders and said 'Who is to feed the children and bake the bread while we wait three months ?' Even more striking, women are sometimes remarried when their husbands have not divorced them at all. In other words, de facto, a woman can leave her husband as easily as he can turn her out, if, but only if, her own natal household, or some other, will take her in. She can then remarry without stigma or public disapproval; even in these cases, another religious ceremony is performed for the new marriage. Some villagers quite possibly always have neglected the rules of Islamic divorce and remarriage in this way, even when Islamic courts existed. But there is another practice which, from the reaction of my informants, I am confident if not entirely new, has at least grown since the abolition of the Islamic courts. I heard of several cases in the villages where a father, having married a widowed or divorced daughter to another husband for the usual reduced marriage payment (14) then took.advantage of one of her visits home to marry her off yet again to someone else for another reduced marriage payment. The husband had no remedy and could neither reclaim his wife nor his money. In no cases known to me was a first marriage terminated this way; nor did the parties belong to the same village, or to villages close to each other. The wronged son- in-law and his group did not have any other regular social relations with the wronging father and group. That is, a man would only act thus if he could do so without incurring informal sanctions of criticism and non-co-operation in his own community. The aims of those who introduced the new code were reformist. They wished to abolish polygamy, unilateral divorce, and marriage payments, and to establish |
| something much nearer equality of rights between man and wife. So profound a change means changing not simply marriage laws but the whole moral attitude to the problems of sex and family, that is the basis of the social system. No such complete change has taken place in the villages of Turkey, though to a large extent it is well advanced among the educated urban classes. But the new law has left the village informal system totally unsupported, with no means of plugging the gaps at its weak points. Hence the system which the new laws were intended to abolish continues, but in a less orderly form. CONCLUSION I have argued that one may think of the law and the judicial system of a country as a means of plugging the gaps in the informal system of social control. If it is to be effective the people must use the civil courts freely, and must co-operate in maintaining order. They will do so only if they feel that the courts give just and useful decisions. From this point of view, it is the aim of the legislator to adjust the laws to make them more consistent with the morality and customs of the people, that is, with the informal system. In Turkey, as in many other instances, the aim of the legislator has been entirely different. He has deliberately set out to alter the morality and customs of the people, and this not step by step, but by wholesale changes. But as soon as the body of rules contained in the law ceases to be consistent with the informal system, as it is bound to do if it is used as an arm of reform, the people will find the law unsatisfactory, and refrain from using it, thus automatically minimizing its social effects. In other words, when the law sets out to alter a whole body of related rules built into the informal system, the more it is used as an initiating instrument of social reform, the less efficient it is bound to be as an instrument of social control; and the less it is used by the people as an instrument of social control, the less it will in fact achieve is aim of reform. Where the reformist legislator makes only slight changes, the informal system may incorporate the new laws—sometimes quite rapidly especially where the people, as in Turkey, respect the law as such. But clearly the extent to which this happens depends on such factors as the nature of the law and the efficiency of the means of enforcement. I am not speaking here of laws, say, altering administrative institutions, which are easy to enforce, or of specific regulations imposed by a powerful government, like the famous hat law of Turkey. Even a law of this kind, while it achieves its immediate purpose, does not do so by altering the informal system of social control, but simply by overriding it on a single point. The people wore European hats, but they could not be compelled to like them. Equally, people cannot be compelled to treat the civil marriage ceremony as |
| conferring moral propriety on a couple, nor to arrange inheritance according to the strict letter of the law. The very fact that the people feel that the law arbitrary on these matters keeps them from being influenced by it. In time, their informal system may change, but no one knows how long this will take; and the changes are not likely to be more attributable to the new laws than to other social changes—the opening up of village transport, the growth of schools, the increasing complexity of the village economic system, new contacts with towns, greater independence of young people from their family and kin relationships, and so on. In all societies, it is possible for people to use the courts as a battle ground for outwitting and destroying enemies, or for acquiring goods to which a man has legal, but no good moral title. The greater the divergence between the law and the informal system, the more possibilities exist for abusing the courts in this way. For example, a village woman who had separated from a man to whom she had been legally married could, on his death, sue for a quarter of his property, and oust the widow with whom he had more recently been living from the rights she would normally expect to enjoy. Again, a headman might, as in one case I know, register land in his own name and thus gain legal title to land which should have been shared among his sisters' sons. So long as many acts covered by the law of persons are inconsistent with the Code, the unscrupulous can find many opportunities for legal but inequitable actions. Most of those who have studied the acceptance of the foreign legal codes in Turkey are concerned mainly with judging the experiment. Was it well done? Have the results been beneficial? In this article I have not been concerned to pass judgement. I find these parts to the new system which have not been entirely accepted, for this very reason the most interesting, and my own studies in the villages have led me to concentrate on the points of greatest divergence between the informal system and the new legal code. This does not mean that I disapprove of what was done; it is fact, and we should be interested in its consequences. Finally, however, I do pass judgement. Many writers on this theme seem to regard the informal system in the rural areas as intrinsically bad, and fit only to be liquidated as soon as possible. The villages are 'backward': technologically this can be given a meaning, but socially what exactly does it mean? That we think the Western way of life should replace the indigenous rural way of life? If so, which Western way of life? Are the villagers to be described in a way of lacking 'culture' because they see eye to eye neither with the tiny group of lawyers who framed the Swiss Civil Code, nor with the tiny group of lawyers and politicians who decided that it was to be translated and enacted in Turkey? |
| We must, of course work for the raising of village standards of living, and we must be prepared to help them to improve their social institutions; but we shall be much better placed to effect such improvements if we have tried to understand the village social system without prejudging what is wrong with it. NOTES 1. The opening sentence is meant as a statement of fact and a guide to my intentions in this article rather than as implying a general definition of law. Some readers may hold, as Malinowki held (Crime and Custom in Savage Society, 1925), that this use of law is too narrow since law must include at least part of what I call the informal system. But the distinction I make must be expressed somehow, and if the meaning of 'law’ is widened then my ‘formal’ and ‘informal’ systems simply become two distinct kinds of law. 2. In the Code, framed for a country where all land was registered, unregistered land receives a very brief mention which I do not find clear but which seems to mean that it all belongs to the State. 3. Even where rights to land are disputed by neighbours it is still the opinion of neighbours, and the attitude of officials and the courts which matter so there is no contradiction here with the preceding paragraph. 4. Turkish Civil Code Article Alternatively, a surviving spouse can take the usufruct of half the estate. 5. They do not normally adopt by due legal process, and the inheritance rights of the informally adopted child are liable to be questioned. 6. Turkish Civil Code Article 444 7. Gibb and Bowen Islamic Society and the West Vol I, Part 1 p 239 8. Gibb and Bowen appear to be implying that the aim of the government was to avoid fragmentation of holdings. They do not make it clear whether the sons divided the father’s holding; nor if they did not, how the system worked in the second and subsequent generations 9. They used the word satmak. 10. Solon for example had to cope with land pawning run riot in Athens at the |