Control <strong>and</strong> Sexuality: The Revival of Zina Laws in Muslim ContextsThe chapter first offers an analytical overview of the historical conditions of gender <strong>and</strong>religious dynamics in Turkish society relating to the notion(s) of zina. These dynamics arethen contextualised in a survey of the state’s legal system, particularly its constitutional,family <strong>and</strong> criminal laws. Subsequently, Turkey’s manifold constitutional, regional(European) <strong>and</strong> international legal responsibility to promote <strong>and</strong> protect human rightsis scrutinised, revealing a considerable gap between the state’s formal commitments<strong>and</strong> its implementation policies. Finally, this study assesses the development of Turkey’sfeminist movement <strong>and</strong> its laudable strategies to address the concept of zina <strong>and</strong> relatedphenomena in law <strong>and</strong> society.Historical BackgroundThe Ottoman Empire rose at the turn of the 14 th century in Turkish Anatolia, from ahotchpotch of smaller emirates, under the leadership of Osman I. By that time, theTurkish dynasties, all formally Sunni <strong>and</strong> of the Hanafi madhhab, dominated much ofthe ‘abode of Islam’ (Dar al-Islam) (Zürcher & van der Linden 2004: 96). The Ottomans’military, administrative <strong>and</strong> socio-political skills ensured that, by the late 17 th century, theEmpire <strong>control</strong>led a vast territory, including much of central <strong>and</strong> south-eastern Europe,northern Africa, the Middle East, <strong>and</strong> western <strong>and</strong> central Asia. Throughout its history,the Empire remained an essentially centralist state (Köker 1995: 54), which was governedby the sultan <strong>and</strong> his ruling class (askeri) via a highly advanced administrative system. Itwas primarily composed of provinces (vilayet) <strong>and</strong> vassal states with varying degrees ofautonomy. 1 The ruling class comprised the military <strong>and</strong> court officials, the nobility <strong>and</strong> theulema (‘ulama’). Apart from the askeri, there were the reaya (tax-paying lower class) <strong>and</strong>the kul (slaves).Not only had the Ottoman zest for governance made the ulema part of an elite class;numerous incentives <strong>and</strong>, with them, a hierarchical system were provided to ensure theirallegiance to the state. Hence,[b]y the sixteenth century, virtually all legal scholars who presided over a medrese[(public school)] classroom or a religious şeriat court in the Turkish-speaking areas ofthe empire, along with imperial appointees everywhere, were ranked, graded <strong>and</strong>pensioned under central state auspices (Zilfi 2006a: 210).Accordingly, they were also given specific duties in the state apparatus. For example, therole of a kadi (Arabic: qadi; judge), apart from courtroom tasks, included reporting on theconduct of the sultan’s administrators <strong>and</strong> supervision of market transactions (Zilfi 2006a:213). The ulema as a whole was organised into an institution – the ilmiye – the head ofwhich was made the müftü (mufti) of İstanbul as the şeyhülislam. This way, the şeyhülislam’s1 Besides the provinces <strong>and</strong> vassal states, the Empire also exercised a temporary authority overcertain distant overseas l<strong>and</strong>s. For instance, in 1565, the Sultan of Aceh declared allegiance to theOttoman Sultan (Azra 2006).186
Turkeyauthority in religious knowledge (‘ilm) was ‘complemented’ with an administrativeresponsibility. Moreover, like all other key dignitaries of the state, the şeyhülislam wasdirectly appointed (<strong>and</strong> dismissed) by the sultan. The ruler’s supremacy in all matters ofgovernance, including religious law, was thus carefully ensured.In the first quarter of the 20 th century, struck by a series of military defeats <strong>and</strong> politicalupheavals, the Ottoman Empire shrunk much in its territorial size <strong>and</strong> ethnic diversity.Mustafa Kemal, a military officer belonging to a faction of the Young Turks, an intellectualnationalist movement driven by ‘scientific’ materialism <strong>and</strong> liberalism, emerged as theleader of the new republican movement. Eventually, their ideas prevailed over those infavour of a monarchic system. In 1922, the Türkiye Büyük Millet Meclisi (Turkish Gr<strong>and</strong>National Assembly) abolished the sultanate, <strong>and</strong> two years later the caliphate (Koçak 2010:241–242). In 1923, the Ottoman state ceased to exist <strong>and</strong> the Turkish Republic was born,with Mustafa Kemal – soon to be also known as Atatürk 2 – as its first President.The ideological conception of the new republic rested primarily on a peculiar combinationof nationalism 3 <strong>and</strong> liberalism, 4 which resulted in a centralist state with powerful military<strong>and</strong> judiciary sectors. Another salient feature of this system was laicism (laiklik) of the state,supposedly modelled after the French laïcité, although in Turkey it meant – <strong>and</strong> still means– the governmental <strong>control</strong> over religious affairs instead of the ‘mere’ absence of religiousinvolvement in government matters, <strong>and</strong> vice versa. Laiklik was zealously asserted in allpublic spheres deemed relevant for the production <strong>and</strong> corroboration of state authority,such as the education, civil <strong>and</strong> military bureaucracy, <strong>and</strong>, of course, law. This was radical,even for the state already ‘tendered’ by previous Ottoman reforms, given the society’sprofoundly religious foundations. The new system established a rather unique relationshipbetween the state <strong>and</strong> religion, which has since (arguably) evolved through five stages(Kanra 2009: 46). These are briefly summarised below.The first phase (1923−45) was characterised by a series of measures designed to relegatethe religious elements deep into the so-called ‘private sphere’ <strong>and</strong> to divorce them fromany political power (Koçak 2010: 244; Lapidus 2002: 502). Hence, for example, all Sufi orderswere banned <strong>and</strong> their possessions impounded; religious courts <strong>and</strong> titles were abolished;2 Atatürk means ‘the Father of the Turks’ <strong>and</strong> it was exclusively added to Mustafa Kemal’s name via alegal act (Law No 2622), passed by the National Assembly in 1934 (Cagaptay 2006: 62).3 Thus wrote, in 1923, Ziya Gökalp, one of the leading ideologues of the nationalist movement:“When a nation experiences a great disaster or when it is confronted with grave danger [...] in suchtimes it is only the national personality who lives in the soul of the individual” (quoted in Cagaptay2006: 4).4 Liberalist political thought ‘inspired’ by sociological positivism produced in the nascent Turkey anaccentuated, state-imbued fascination with science, modernisation <strong>and</strong> capitalism, all of whichwere thought to be the tenets of a ‘civilised’ <strong>and</strong> ‘rational’ society. The idea was hardly new, sinceit has been entertained, to various degrees, in the Ottoman state as well, through many decadesprior to the birth of the Republic. For the first time, however, it was able to thrive as an officialideology of the state.187
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Ziba Mir-Hosseini and Vanja Hamzić
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ContentsvviiAcknowledgementsGlossar
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GlossaryAcross Muslim countries and
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GlossaryDarul Islam: ‘Abode of Is
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GlossaryIjab & Qabul: Lit. ‘offer
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Lawat/Liwat: Penetrative sex betwee
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Control and Sexuality: The Revival
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Introduction
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Control and Sexuality: The Revival
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Introductionbe sought both in ‘tr
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Control and Sexuality: The Revival
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Criminalising Sexuality: Zina Laws
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Criminalising Sexuality: Zina Laws
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IndonesiaCountry ProfileThe Republi
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Indonesiaon employing religion in t
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Indonesiamovement, however, unified
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IndonesiaAct also strengthened the
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IndonesiaCases of Human Rights Viol
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Indonesia2008 Law on PornographySin
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Indonesiathat “community [moral]
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Indonesiajustified as a pre-emptive
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Indonesiato leave their village and
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Indonesia(1) the right to an object
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Indonesiahas been difficult; Indone
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Indonesiaparticularly those of the
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IndonesiaIndonesian civil society,
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IndonesiaGeertz, Clifford (1971) [1
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IndonesiaVan Klinken, Gerry (2007),
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IranCountry Profile 1Iran is one of
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Iranpresident Khatami in 1997. Desp
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Iranwere retained only in the new C
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IranThe success of the Revolution w
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Iranelected bodies, which came to b
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IranMore importantly, it enables th
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IranThe clerics who took power afte
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Iranwoman who are forbidden (haram)
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IranThe notion of “his own knowle
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Iranconvicted women have already at
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Iranwhich, despite severe repressio
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Iranamended so as to curtail men’
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Irangovernment. Despite the silenci
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Iran- and in a few cases has obtain
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IranMovement, under the joint - but
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IranBibliographyAfary, Janet (2009)
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Iran(2009), ‘Iran’, in Sanja Ke
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NigeriaCountry ProfileThe Federal R
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Nigeriaand international advocacy,
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Nigerianorthern provinces, allows f
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Nigeria‘Settlement’ and Dynamic
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Nigeria“any other question” wit
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Nigeriaset up by Muslims in the abs
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Nigeriaappellate court of “any [s
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Nigeriathat the ruling elite of 11
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- Page 161 and 162: NigeriaUnder the 1999 Constitution
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- Page 165 and 166: NigeriaAs a result of these litigat
- Page 167 and 168: NigeriaDominant colonialist discour
- Page 169 and 170: NigeriaBibliographyAbdullah, Hussai
- Page 171 and 172: NigeriaJohnson-Odim, Cheryl and Nin
- Page 173: NigeriaTerman, Rochelle and Mufulia
- Page 177 and 178: PakistanCountry ProfileThe Islamic
- Page 179 and 180: Pakistanvote in the Bakhsh case - o
- Page 181 and 182: Pakistanpolicies, which effectively
- Page 183 and 184: PakistanIn the closing years of Bri
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- Page 189 and 190: PakistanThe 1979 Hudood Ordinances
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- Page 205 and 206: TurkeyCountry ProfileThe Republic o
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- Page 211 and 212: Turkeywhat ‘women are like’ and
- Page 213 and 214: Turkeynow turns to investigate how
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- Page 223 and 224: Turkeythe technological advances wh
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- Page 229 and 230: Turkeyfrom the previous ones, as th
- Page 231 and 232: TurkeyThe history of Turkey, includ
- Page 233 and 234: TurkeyHirsch, Ernst (1968), ‘Vier
- Page 235 and 236: TurkeyToprak, Metin and Nasuh Uslu
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- Page 251 and 252: IndexAAbbasgholizadeh, Mahboubeh 97
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