One of the most persistent issues in Turkish public discourse is the debate over the constitution. Once again, a new constitutional initiative is on the agenda.
Though definitions vary, at its core, a constitution is a legal framework that encompasses the entirety of public life. Having studied and written on this subject for years, I define a good constitution as a document that identifies the fundamental rights and responsibilities based on mutual consent between diverse social groups and the central government within a given geography. Overly detailed constitutions are traps set by their drafters—by emphasizing obligations over rights and freedoms, the spirit of the document is undermined. As the saying goes, such constitutions give with a spoon and take back with a ladle.
If we look to some of history’s most successful legal texts, such as the Constitution of Medina, or other customary traditions that helped diverse communities coexist, we see that they focused solely on delineating mutual rights and duties. Anything more reflects the ambitions of those drafting the document, not the needs of society.
The modern emergence of individualized rights and their codification into constitutional status is another matter. As the Prophet Muhammad (peace be upon him) said, “The forbidden is like a small protected pasture—do not approach it; all other areas are domains of freedom” (Bukhari, Iman, 39). According to Islamic legal philosophy, permissibility is the default, legal liability is presumed absent, and good faith is the baseline. Apart from clearly defined prohibitions, people are free in all other areas. Even divine law (Sharia) prescribes prohibitions only exceptionally—like forbidding alcoholic beverages while all other liquids remain lawful.
Modern constitutions, on the other hand, often proceed from a different philosophical assumption: the Christian view of humankind as inherently sinful. They aim to define what freedoms a person may have and how those freedoms can be exercised. Within this framework, law punishes sin, and the state itself is seen—by some Christian theologies and even Mahatma Gandhi—as a form of punishment for human sinfulness.
When some Muslims adopt the modern tendency to regulate every aspect of life through laws and the state, they are not drawing from Islam’s core texts or historical practices, but from a distorted Western legacy. Islam is fundamentally incompatible with totalitarianism or authoritarianism—two key features of the modern paradigm. A constitution, in and of itself, cannot guarantee or preclude totalitarian rule. Stalin’s Soviet Union, for example, had a meticulously written constitution.
The deeper issue lies in the belief that certain people—whether they are founding elites, revolutionary generals, legal experts, or political parties—have the right to impose binding texts on society as a whole. This belief is the primary ailment of constitutionalism. When a soldier liberates an occupied country, it does not grant him the right to shape its constitution or impose social engineering on future generations. Just as a doctor has no special legislative privilege while treating a patient, a victorious general has no right to redesign society.
Consider a telling episode from the Second Battle of İnönü. İsmet İnönü once confronted a group of officers who had fled the front. After chastising them, he said, “The sultan is your enemy, the imperial powers are your enemy, and—don’t let anyone hear this—even the people are your enemy.”
Likewise, when a constitution includes “unchangeable and even unproposable articles,” it signals an attempt by a select group to impose a rigid ideological framework on everyone. Holding military or political power during a state of emergency does not give one the right to write laws that will bind future generations for centuries.
This is the most fundamental flaw in constitutional drafting: the attempt to write a text on behalf of the people, without the people. Such documents may be called constitutions, but they cannot rightly claim to be “social contracts” or texts that emerge from such contracts. Societies need social contracts before they need constitutions.
Another chronic issue arises when constitutions are drafted under external pressure. Even with the best intentions, such conditions produce documents distorted by contemporary crises. It is inconceivable that the drafters of the 1961 and 1982 constitutions worked independently of the military coups of May 27, 1960, and September 12, 1980. General Kenan Evren once said the 1961 Constitution had become like an oversized suit—so loose that it allowed the public to “dance freely.” He believed it needed to be tightened.
The 1982 Constitution was a reaction to 1961, just as the 1961 Constitution was a reaction to that of 1924. While the earlier version declared “sovereignty belongs unconditionally to the nation,” the latter assigned it to the state institutions listed in the constitution—effectively consolidating power in the hands of a central elite. This logic laid the foundation for the “postmodern coup” of February 28, 1997, when military officials summoned judges, university rectors, journalists, and NGOs into closed-door briefings.
Like its predecessor, the 1982 Constitution equipped the state with mechanisms to protect itself from society. Whereas post-WWII European constitutional courts were designed to protect citizens from the state, Turkey’s judiciary—including its Constitutional Court—often did the opposite. Figures like Yekta Güngör Özden and Chief Prosecutor Savaş Vural acted more like ideological enforcers than neutral jurists during the February 28 process.
When a constitution internalizes the political pressures of its time, it becomes a relic of that moment. Its relevance fades, even if its articles remain on paper.
This dynamic was on full display in 2007, when the AK Party sought to draft a new constitution. Despite electoral victories in 2002 (34%) and 2007 (47%), the party struggled to wield real power, facing resistance from entrenched institutions. Events like the April 27 military memorandum and the 367 quorum crisis underscored the need for constitutional reform.
Another form of pressure came from the EU accession process. While the 1982 Constitution was clearly inadequate, the push to meet the European Union’s Copenhagen criteria shaped the drafting process. Constitutional committee members such as Levent Köker, Serap Yazıcı, and Burhan Kuzu all emphasized the need to align the new constitution with EU norms.
In this context, the drafters were haunted by an invisible committee of “inspectors,” constantly wondering: “What will the EU think?”
And yet, a legitimate constitution must emerge free of such external pressures, through consensus among diverse segments of society. While external benchmarks may inform the process, allowing them to dictate its content results in flawed and unstable documents.
