Civilization, Legitimacy, and the New Constitution | Menderes Çınar
The press reported recently that the Justice and Development Party’s (AK Parti) appointees to the Constitutional Reconciliation Commission have made a proposal making it possible to restrict the freedom of the press on the basis of “general moral principles, national security, and ensuring public order” (Milliyet, 13 July 2012). Taken together with the AK Parti’s claim that their proposed presidential system would create a more “stable” administration, this proposal leads us to ask why we are even drafting a new constitution in the first place. After all, the inclusion of ambiguous concepts like “general moral principles” and “national security” in the 1982 constitution made the restriction of basic rights and freedoms possible, while various legal-institutional reforms sought to preserve order by centralizing power. These two features of the 1982 constitution contradicted the spirit of what a constitution should be and the very reason for the existence of a constitution. Thus, these two anti-liberal and anti-political features of the 1982 constitution have also received the most criticism.
Since it was the military who led the 1980 coup that drafted the 1982 constitution, it was inevitable that their militaristic logic and mindset would be reflected in the constitution. The current constitutional drafting process, however, was launched by the AK Parti, which to some extent rightfully claims the mantle of “democratic pioneers,” and it is led by a democratically elected political class which claims to be drafting a new and totally “anti-1982” constitution. Yet if that is the case, why can we see the same “1982 logic” perpetuated again in the AK Parti members’ proposals?
I believe it would be useful in this regard to ask what the AK Parti considers to be the basic principle of legitimacy (or the basic goal of politics), because it appears that the basic principle of legitimacy guiding constitutionalism and modern politics is different from the basic principle of legitimacy guiding the AK Parti.
The basic principle of legitimacy and the goal of politics in modern political theory is “liberty.” Kant, for instance, argued that liberty was a precondition of morality and virtue, and that is was impossible to describe an unfree individual as possessing morals. Indeed the principle of constitutionalism also developed as a liberal principle, seeking to expand the realm of freedoms while restricting the power of the sovereign state. Seen from this perspective, the goal of having a constitution is to restrict the power of the state and secure individual freedoms through the use of mechanisms like the separation of powers, checks and balances, and inalienable rights and freedoms. Liberty has been institutionalized as the expected norm that modern politics must provide; it has become the standard by which modern politics is evaluated.
But seen from the perspective of the AK Parti, which instigated the constitutional drafting process and will determine its outcome, we might argue that the guiding principle of legitimacy is not “liberty,” but “justice.” For instance, this claim is supported by the fact that Yalçın Akdoğan, in his short book describing the AK Parti’s political program, Conservative Democracy (Muhafazakâr Demokrasi), argues that the moral goal of politics is justice. Furthermore, the fact that the AK Parti describes Turkey’s potential membership in the EU as “civilizations coming together” (thus categorizing Turkey as a part of the Islamic civilization) also supports this claim, because supporters of a civilizationalist viewpoint believe that the path to legitimacy in the Islamic and Western civilizations are different. Islamic political theory adopted justice, not liberty, as its basic principle of legitimacy, so “justice” also became the basic emphasis of Islamist politics, from which the AK Parti originated.
The problem is that a constitution created for the purpose of securing or establishing justice is unable to create a foundation for democratic politics and for this reason will never be a permanent one, because “justice” is a concept inextricably tied to power. By way of example, a conservative Muslim employer might, because of his or her belief, follow the hadith to “pay a worker’s wage before the sweat [on his brow] is dry,” while a Marxist who subscribes to the labor theory of value, or anyone who does not believe in leaving decisions about justice up to the employer, might object to this view. Going even further, it is likely that there will be differences of opinion on whether, for instance, the formation of unions is a democratic “right.” It is for this very reason that the nature of justice is a topic for politics and democratic discussion. A constitution that does not permit a free discussion on this topic is thus condemned to be outdated from the very moment of its adoption.
Those who set out with the claim or even the (good) intention of creating a “humane and righteous”—that is to say, a just—system that “gives to each what is due,” whether in relations between two people, or between society and the state, have the potential to anormalize those who oppose the system they have established by calling their approach “ideological” or “ill-intentioned.” And later, they have the potential to try and “normalize” their own politics with coercive measures resting on ambiguous concepts.
*Associate Professor, Başkent University (Ankara), Department of Political Science and International Relations.
Translator: Alex Balistreri
 Yalçın Akdoğan, “Yeni Siyaset Tarzı Arayışları” (The Search for a New Style of Politics), Radikal, 8 October 2003; Yalçın Akdoğan, “Siyasetin Ahlaki Amacı Nedir?” (What is the Moral Goal of Politics?), Yeni Şafak, 5 February 2004.