Academic journal article Washington and Lee Law Review

Rape and the Exception in Turkish and International Law

Academic journal article Washington and Lee Law Review

Rape and the Exception in Turkish and International Law

Article excerpt

Table of Contents

I. Introduction................................................................................ 1350

II. EuropeanExceptionalism........................................................... 1351

III. Rape and the State of Exception in International Law................1355

IV. Rape and the State of Exception in Turkish Law........................ 1359

V. Conclusion.................................................................................. 1361

I. Introduction

My starting point in this Comment is the 2004 Turkish criminal code-a text that has redefined the Turkish state's approach to issues ranging from torture and corruption to immigrant smuggling, rape, and adultery.1 The 2004 criminal code is fundamentally a domestic document, aimed at rearticulating and liberalizing the state-citizen relationship in Turkey.2 At the same time, it is an emphatically international text-a deliberate spectacle geared toward moving Turkey one step closer to European Union membership and thus, one step closer to "Western Civilization."3 As such, Turkey's criminal code is unquestionably political-representative of the close relationship between law and citizenship formation, between the elaboration of legal norms and the "post-democratic spectacle]"4 that deprives these norms of all but their political meaning. Although the 2004 criminal code is couched in a rhetoric of neutral, objective European liberalism, I suggest that it is simultaneously a product of the exceptionalism first theorized by writers such as Carl Schmitt.

This Comment is divided into three parts, each addressing the various ways in which Turkey's rape law is the inheritor of a long-standing tradition of European exceptionalism and liberalism. Part II sketches, in broad strokes, a few defining characteristics of the state of exception as it has been theorized by twentieth and twenty-first century legal scholars. Part III addresses international rape law and its implicit demand for a state of exception. Finally, Part IV discusses the Turkish code itself and its debt to this international legislation. I suggest that both Turkish law and international law irrevocably politicize the bodies of citizens, that they turn these citizens into exceptional space, and that they thus represent a classically authoritarian appropriation of sexuality even while they speak the language of the liberal rule of law.

II. European Exceptionalism

A reasonable place to begin a discussion of European exceptionalism is the opening sentence of Political Theology, where Carl Schmitt argues that a sovereign is "he who decides on the exception."5 This interpretation of the relationship between sovereignty and exceptionalism has been extraordinarily influential in recent analyses of authoritarian legal and political structures.6 According to Schmitt, deciding on the state of exception-deciding when the rule of law will be suspended or when law will collapse into politics-is the most fundamental of sovereign rights.7 Sovereign existence indeed relies upon the state of exception, and, as Schmitt continues, the relationship between sovereignty and exceptionalism is identical to the relationship between divinity and the miraculous.8 "The exception in jurisprudence," he argues, "is analogous to the miracle in theology,"9 and just as the divine suspension of the laws of nature both defines and constitutes God, so too the sovereign suspension of the sovereign's law defines and constitutes sovereignty.10 Each shatters a system of objective legal norms but, in doing so, each demonstrates the higher existence of law/sovereignty or law/divinity. What Schmitt is trying to do in his discussion, therefore, is to reintroduce this particularly miraculous aspect of sovereignty into politics-suggesting that sovereign relations are predicated upon an irrational, nonobjective, nonverbal acceptance of political power and arguing that sovereign legitimacy rests upon a miraculous absence of legality. …

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