European Family Law Volume II The Changing Concept of ‘Family’ and Challenges for Domestic Family Law
The Changing Concept of ‘Family’ and Challenges for Domestic Family Law
Edited by Jens M. Scherpe
Chapter 16: The changing concept of ‘family’ and challenges for family law in Turkey
The predecessor of the Turkish Republic, the Ottoman Empire, was a multi-ethnic state, decentralised, and culturally and legally pluralist. Although the official law of the Empire was Islamic, until the second half of the 15th century the majority of the population were Christian living under the rule of a Muslim minority. There was no one language, no single distinct culture, no one religion and therefore no one law: eclecticism and pragmatism prevailed in the running of the Empire. Muslims lived under Islamic law and other religious groups were allowed to abide by their own personal laws: the primary determinant of choice of law was religion. Obviously this arrangement was reflected strongly in the family laws of the Empire. Pluralism was both as to substantive law to be applied and the courts that had jurisdiction to apply the law. For Muslims, until 1917, family law in the Ottoman Empire was based on the _eriat (shari’a) reflecting Sunni beliefs and the Hanafi School’s interpretation. Islamic law recognised the equal worth of human beings, but stressed different roles and rights for men and women within the framework of marriage, and therefore was not based on the equality of the spouses. In 1916 two imperial edicts were promulgated granting wives the right to sue for divorce in cases of desertion or a husband’s contagious disease making conjugal life dangerous.
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