When Law Becomes a Matter of National Identity

[Sami Selçuk is Professor Emeritus of Turkish criminal law and criminal procedure at I.D. Bilkent University (Ankara) and Honorary President of the Court of Cassation of the Republic of Turkey.

Bedirhan Erdem is a research associate at the Chair of German and international criminal law, Lüneburg Leuphana University; and doctoral researcher at the Chair of German criminal law, criminal procedure, foreign criminal law and theory of criminal law theory at Berlin Humboldt University.]

In recent years, we have repeatedly seen science itself become entangled in identity politics. During the Covid-19 pandemic, for example, medical science became a flashpoint of social division; more recently, gender studies have been disparaged as “woke” and treated with similar hostility. In each case, an us-versus-them narrative took hold, casting science not as a method-driven pursuit but as an attack on the peaceful fabric of society.

Today, we argue, a new chapter of this politicization is unfolding. Legal science itself has entered the fray. In Turkey, the discipline of law, traditionally grounded in the rational methods of the civil-law system and the general principles of human rights, is increasingly being portrayed as an alien threat to national identity.

“Yerli ve milli”: Identity Crises in the Legal Studies

A wide-spread slogan in Turkey is “yerli ve milli hukuk” which translates to “domestic and national law”. At first glance, the phrase sounds like a harmless patriotic slogan, but it underpins a legal-policy agenda that attacks the scientific, methodical foundations of law and replaces them with identity-based rhetoric. The rebellion against legal science is striking, given that Turkey’s entire modern legal order was historically built by adopting Western laws, principles, and court precedents. The push for a “yerli ve milli” approach might look like a call for a genuinely Turkish legal culture. Yet beneath that it operates a friend-versus-foe schema that politicizes the jurisprudence. Law is no longer seen as a check on power or a system of neutral principles, but as a weapon to be wielded in service of a ruling faction. It is always ready to defend the so-called “domestic and national” legal interests of “the people” as defined by those in power.

Our thesis is that legal studies are being cast as a kind of national identity crisis. Such framing serves a clear goal: To free political actors from having to justify their decisions and to enable the state’s justice apparatus to be used more easily as an instrument of political interests.

The “Trans”national DNA of Turkish Law

To understand the gravity of this shift, we have to recall the origin of Turkish legal tradition. Far from being a purely domestic and authentic creation, modern Turkish law was born as a conscious “transplant” of European legal systems. Even in the late Ottoman Empire, legal reforms drew on European models. With the founding of the Republic in 1923, Turkey systematically adopted major Western codes: the civil code of 1926 was taken almost verbatim from Switzerland, the penal code of 1926 was based on Italy’s 1889 Zanardelli Code, and the commercial code was closely modeled on German law. These were not foreign impositions or capitulations, but deliberate choices intended to anchor Turkish law in European legal traditions and ensure international compatibility. From the very beginning of the Republic, Turkey’s legal order was never purely national; it was part of a western and even transnational legal community. Indeed, to claim that a completely “national” or “sterile” legal order could exist within the civil-law system is to deny the very scientific character of law. 

How “Yerli ve Milli” Operates against Law as Discipline

The rhetoric of “yerli ve millî hukuk” is first deployed to displace shared legal method with ideological allegiance by re-shaping the judiciary (including court-packing) and the legal academia. In the 2024 judicial year opening speech, it was explicitly stated that the practice of merely appearing to align with European law must come to an end. This was not aspirational; it described the ongoing institutional operationalization of the discourse. The 2020 “multi-bar” reform allowed multiple bar associations in the same province and reweighted representation in the Union of Turkish Bar Associations to curb the dominance of large metropolitan bars perceived as ideologically “anti-national”. The 2017 constitutional changes recast the Council of Judges and Prosecutors so that the President directly appoints almost half its members while the remainder are selected by the Parliament typically aligned with the executive’s “domestic and national law” rhetoric. The Venice Commission concluded that this configuration puts “the independence of the judiciary in serious jeopardy”. In parallel, the 2024 Academic Freedom Index places Turkey in the bottom 10% globally (Status E, which means the countries with completely restricted academia in the global ranking). The “Academics for Peace” prosecutions illustrate the spill over into universities. Meanwhile, law faculties have drastically proliferated (ca. 90 nationwide). Combined with absolute presidential control over the administration of universities since 2018, this strategy enables politically “yerli ve milli”-aligned hiring within legal academia.

Secondly, the discourse is operationalized through executive choices that sideline canonical sources and methods. Legal method is subordinated to identity politics narratives, then the hierarchy of norms became optional. Although Article 90 of the Constitution gives international human-rights treaties precedence over conflicting national statutes, Turkey withdrew from the Istanbul Convention by presidential decision to protect the so called “domestic and national image of the family”. The Council of State upheld the withdrawal, an emblematic move that sidelines both constitutional and international law constraints. A similar pattern appeared in the international human rights cases: at the European Court of Human Rights (ECtHR), applications against Turkey made up 35.8% of all cases pending before a judicial formation at the end of 2024; and in the execution phase, Turkey today holds the record for the most ECtHR judgments left unimplemented by any Council of Europe member. Hundreds of cases remain pending without proper execution (57% of leading cases from the last decade still pending). 

In conclusion, in its operation it has radicalized and polarized jurists in the name of “yerli ve milli” and has systematically hollowed out their reliance on the sources and methods of legal science.

 “Our Enemies” 

By its nature, legal science depends on methodology, conceptual clarity, and intersubjectivity. It is inherently above nations. The “domestic and national law” discourse rejects this foundation. Law is no longer treated as part of a universal discipline but recast as the exclusive patrimony of a nation. It becomes merely a tool for political self-assertion, placed in a narrative that deliberately constructs friends and enemies: On one side stands “us, the people,” represented by the majority and the governing apparatus. On the other side stand the jurists, who are maligned as foreign influenced. This rhetoric paints two types of jurists: “ours” and “theirs.” For instance, the above-mentioned multi-bar law and the 2017 constitutional amendments accelerated this split among jurists. The underlying aim has been, and remains, to portray disfavored jurists as “our enemies”. In this logic, even referencing universal basic legal standards is treated as disloyal. In high-profile cases, the legitimacy of the legal methodology and its reasoning is publicly challenged, dismissing adverse international rulings as foreign, biased interference. In short, any legal standard or institution not under the “domestic and national law” banner can be painted as alien to the nation.

Institutional Consequences

The consequences in Turkey’s justice system are visible in daily matters.

Schrödinger’s Constitutional Court

Turkey has a Constitutional Court whose decisions are constitutionally defined as final and binding, yet the implementation is not fully guaranteed. A dramatic example is the case of opposition MP Can Atalay in late 2023. The Constitutional Court ruled, by a 9–5 majority, that Atalay’s imprisonment violated his right to be elected and to personal liberty, explicitly ordering his release. In a rule-of-law setting, such a judgment would be the last word. Instead, a lower criminal court refused to comply and referred the matter to the Court of Cassation. The Court of Cassation in turn took the unprecedented step of unanimously defying the Constitutional Court, and it not only upheld Atalay’s continued detention but also lodged criminal complaints against the nine Constitutional Court justices who had ruled in his favor. The Constitutional Court itself stated that the Cassation Court’s refusal clearly constituted a violation of the constitution. This amounts to a direct assault on the hierarchy of norms. It was a de facto suspension of constitutional supremacy and individual application in criminal matters. Notably, this was not an isolated incident out of the blue. In recent years it has become routine for lower courts and officials to ignore high-court judgments. This domestic defiance is mirrored also on the international stage. In high-profile situations, such as the case of imprisoned philanthropist Osman Kavala, Turkish authorities have openly flouted the ECtHR’s binding orders to release individuals. ECtHR decisions are frequently framed as “foreign intervention” that the identity-politics discourse fuels.

Hollowing Out Criminal Procedural Law 

The fight against legal studies has also emptied the substance of criminal procedure in many cases. The criminal adjudication, which should be a venue for methodical fact-finding and reasoned argument, has too often been reduced to a stage for predetermined, performative outcomes. Especially in trials involving defendants labeled as enemies of the state, basic due-process guarantees have been eroded to the point of near-irrelevance. In these politicized cases, defendants’ rights to a fair trial have been systematically curtailed. Pretrial detention has morphed into a tool for punishment without due process. It is not uncommon for investigation reports to be copy-pasted into indictments and for indictments to be copied into court verdicts, with little judicial analysis. In other words, the proceeding known as a “trial” often devolves into a mere formality, a showcase without adversarial debate. Meanwhile, the organization of the judiciary has been reshaped according to “domestic and national law”. Through the High Council of Judges and Prosecutors, which is firmly under executive influence, authorities can and do reassign or discipline judicial personnel based on the content of their decisions. This creates a deterrent effect: other judges learn to toe the line, knowing their careers depend on not angering the powers that be. The result is a homogenized and loyal judiciary.

De-Scientification of Legal Methodology

Ultimately, what the “domestic and national law” movement threatens is the very soul of law as a discipline. Law lives by its own method. Legal reasoning is a craft, it requires justification grounded in principles, a hierarchy of norms, and evidence of scientific consent. If that method is forsaken, then law itself dies. What remains is merely a collection of decisions serving immediate political interests. The current discourse of “domestic and national law” in Turkey amounts to a drive to de-science the law, to strip away the norms and processes that make the legal system rational and principled. Where universal standards are smeared as “unpatriotic,” the law loses its connectivity to the broader legal community. Turkey’s legal system risks isolation. By rejecting norms shared across national borders, it undermines mutual trust and compatibility with international law and practice. The function of the discourse of “domestic and national law” is to abolish the influence of legal science altogether. What emerges from this is not a more authentic rule-of-law state, but rather an identity-politics-driven pseudo-legal regime (see here, here and here). Thus, we arrive at a point where scientific legal reasoning itself is treated as the enemy. 

Not a Unique Case, Just One of Many

Should Turkey be seen as an isolated case, or part of a broader trend? Our response is clear: This is not an issue peculiar to Turkey or civil-law system, rather, it is one episode in an ongoing trend from the United States to Poland and Hungary within the European Union. In Poland, the Court of Justice of the EU has condemned the Disciplinary Chamber and related reforms for undermining judicial independence. In Hungary, successive EU Rule of Law Reports and human-rights assessments continue to flag pressure on courts and judicial governance despite partial legislative changes. And in the United States, leading legal organizations and scholars have documented a rise in political attacks on courts and concerns over the judiciary’s legitimacy. The Turkish case is a particularly strong warning. Legal science can be framed as an enemy of the nation; and when law as a discipline is stripped of its methodological character in favor of identity politics, the essence of the rule of law is at stake.