In Franz Kafka’s “The Trial,” Josef K. is arrested for no apparent reason on the morning of his birthday. Josef K. finds himself in a situation of complete uncertainty. Held in makeshift courtrooms, the main character can only see the top of a building amid the fog. In some hallways, when daylight glides through the window, the fog inside the buildings makes those who speak invisible.
Kafka, who studied law and served as an intern lawyer, was able to make quite a few observations. He went on to pursue a career in an insurance company. Kafta’s works are ever more relevant today. Through what happens to Josef K., one can observe how totalitarianism, capitalism and the modern state apparatus operate. Religious motives can be deciphered and evaluated through the filter of psychoanalysis.
Today, it is rather common to refer to Kafka’s “The Trial” whilst discussing Turkey’s judiciary system. Yet the book is longer adequate to describe our contemporary reality. Kafka’s works fail to capture today’s lawlessness and irrationality.
For instance, lawyer Kasım Akbaş refers to “The Trial” when discussing the legal proceedings of “Academics for Peace” petition because he remembers how in the novel, once K. has been sued, it is almost impossible to change the court’s opinion, which has determined that the defendant was guilty. In the book, the character of the painter tells K. the following: “If I drew all the judges side by side and you defended yourself in front of that canvas, you would definitely be more successful than you are in court.”
When the case of the “Academics for Peace” was held, all along the proceedings up to the Constitutional Court’s decision, there was only one dissenting opinion from lower courts. “The fact that there was only one dissenting opinion [amongst dozens of panels of judges and hundreds of judges] makes up for a situation that can only be found in Kafka’s novels,” Akbaş said. “But let us not forget that Kafka was critiquing modernity and its rationality, rather than irrationality”, the lawyer added.
Law and its disenchantment
It may be wrongheaded to describe Turkey’s current legal practices as “uncertain” for we may be experiencing the most certain period in the country’s legal history. Nowadays, what constitutes a crime is very clear.
An individual who has never encountered legal troubles still has a clear estimate on what can cause trouble depending on what he or she shares in public or on social media. Ordinary citizens are aware of the fact that arbitrariness can trump written rules and that a prison sentence can be handed in the absence of evidence. A wide segment of the population is familiar with fundamental law terminology. Reading and examining indictments are no longer an activity limited to lawyers only. That segment of the population is no longer surprised when a lower court does not abide by a decision of the higher court. The lawyer Ebru Timtik died in a hunger strike whilst demanding a fair trial. But such incidents no longer shake society.
People usually take for granted that rule of law once prevailed in Turkey. Yet it is an illusion, for the legal system here was always politicized.
Kasım Akbaş was expelled from his position as an assistant professor at the Department of Legal Philosophy and Sociology at Anadolu University’s Faculty of Law, because he signed “Academics for Peace” petition. Akbaş published a book in 2006 entitled “The disenchantment of law.” He focuses on the Critical Law Studies that were developed in the U.S. in the 1970s, on the impartiality and independence of the law as well as on the critiques of the rule of law. The doubt cast on the assumption that laws are the sole determinants of trial outcomes is referred to as “legal uncertainty.”
Akbaş’s analysis of today’s situation is the following: “Legal uncertainty which is an important assertion of Critical Law Studies is part of the criticism of legal formalism. Today, we are discussing whether or not there still exists a formal law in Turkey. No doubt, the dominant legal order has visible and invisible, direct or indirect mechanisms that function against the oppressed classes and segments. If we restrict the analysis to a general abstract level, without allocating to the ruling period of the Justice and Development Party (AKP), we can say that legal certainty claims have always been a myth. But an analysis based on general abstraction under these conditions when the AKP reign is consolidated as a palace regime, would prevent us from detecting the distinctive characteristics of the period. If we do this then we would not be making an analysis. The distinctive feature of law in this current regime is that law has become the tool of a small interest group for directly interfering in a historically unprecedented style in political and social processes. I guess behind the phrase ‘law has been exhausted’ is the fact that this direct interference has been detected. When you say we are going through a ‘very distinct period’ in the legal history of the country, you are pointing out to the fact that legal decisions are extremely ‘determined.’ The determinant factor here is the interests of a narrow group. Since, we, the mortals are not able to specify what these interests are in each specific situation, the scene looks vague or ambiguous to us.”
Law in a dual state
In order to understand legal decisions right now, one must examine domestic politics, new equilibriums on the international agenda, and the state of our economy. For certain decisions, one can have an explanation such as “because they are in trouble,” or, “they want to let off steam.” Another good explanation is “This is a move to please Europe.” These explanations are not totally baseless.
Akbaş argues that the interests of a small group also include those factors that are traditionally considered illegal. What is most remarkable, he points out, is that “some kind” of a law is run all throughout this process. In other words, arrests are conducted according to a related article in the Penal Code, expulsions from public posts are carried out through statutory decrees (KHK), certain deadlines are respected. Akbaş mentions Ernst Fraenkel’s concept of the “dual state.”
Fraenkel, a socialist and Jew who served as a lawyer in Berlin from 1933 to 1938, closely observed the legal practices of national-socialism. He underlined Nazi Germany’s “dual” substance - which was characterized by two, simultaneous forms of sovereignty.
One of them was the normative state, the other was the “interfering and measure-taking” state, referred to as the “prerogative state.” The state apparatus ran the normative state, though very slowly. The prerogative state, on the other hand, was run by the arbitrary judgments of powerful officials. Fraenkel maintained that in Nazi times, the prerogative state acted as a court in political cases. There were direct interventions that created a dual justice system.
‘You will be prosecuted’
Evaluating law along with historic, sociological, political and economic data and interpreting it through power relations makes sense. However, doing this in Turkey makes many hopeless. While many wish that all of this period’s illegal acts will one day stand trial, a state of deadlock and uncertainty prevails.
“I do feel that confrontation with the past cannot be minimized into a sheer judicial activity. Prosecution during the building of a new sovereignty consists of the punishment of those crimes that have characteristics related to the needs of the new sovereign. There is no need to go very far; we have seen what was presented to us in the supposedly encounter with the deep state. Any showdown limited to mere prosecution has another function which is clearing those who have not been involved in this process. Each prosecution turns the spot lights to the ones to be prosecuted. I guess it would be the last thing I would wish that today’s prosecuted will clear themselves when they are the future sovereigns tomorrow, based on the victimizations of today. I only trust an experience of humankind based on a liberating social transformation. The most important feature of this kind of experience is that it is built from today. The opinion “You will be prosecuted” actually refers to the change of power. On the other hand, a liberating social transformation does not have a timetable. It is ‘right here, right now.’”
In these tough times, what is the right thing to do for a citizen? When the entire situation is as unreasonable and systematic, defining what is happening as “unlawful” loses its meaning in time. Calling this unlawful becomes mundane, just as referring to Kafka’s “The Trial” which is no longer sufficient.
Questioning the meaning of this may lead to indifference. Akbaş points out the need to say it out loud, in each case and under any circumstance, repeatedly that lawlessness is lawlessness. He suggests considering law as a form of relationship between labor and capital, a form of class struggle.
Kasım Akbaş summed up those who have a clear stance as: “The optimism of the willpower.” He quoted Antonio Gramsci as “Each defeat brings intellectual and moral irregularity. In the face of worst fears, one should not fall into hopelessness or the euphoria of stupidity. The pessimism of the mind is the optimism of willpower.”