Is Law a Tool under the State of Emergency: An Analysis of emergency decrees between 2016-2018 in Turkey

The state of emergency that was promulgated following the July 2016 unsuccessful coup caused serious damages to the Turkish legal system. Although the state of emergency ended in August 2018, the legislative degrees issued under it changed many statutes, influenced many citizens' life negatively and permanently, and violated fundamental human rights. Since, many have argued that the rulers in Turkey have abused the emergency power using law primarily as an instrument to achieve extralegal/political aims. My aim here is to challenge this widespread assumption that law-making is a simple extension of politics or a simple instrument of political power or political ideology. Even for certain approaches to law, and especially for Marxist jurisprudence/critical legal theory or legal-positivism, law is a tool of legislators for achieving their aims. This implies that the formal characteristics of the rule of law are the effective tools legislators use to achieve any kind of aims, even personal and extralegal. These characteristics are that (1) law should be general, (2) published, (3) non-retroactive, (4) clear, (5) non-contradictory, (6) constant through time, (7) that it should not require the impossible, and (8) that there should be congruence between official action and declared rules (Fuller 1969). Treating Turkey between 2016 and 2018 as a case study, this presentation focuses on law-making under a State of Emergency. More specifically, it asks whether the regulations of the Turkish case of state of emergency have violated the procedural principles of the rule of law. Do the regulations issued by the government during the state of emergency justify the empirical claim that legislators use the principles of the rule of law on whim and/or in order to achieve extralegal political aims? Is law an instrument legislators use to achieve any kind of their aims? Are the principles of the rule of law the tools legislators use to achieve any of their aims effectively? In my analysis of the Turkish case, I draw on two competing perspectives in legal theory, i.e, those of Lon L. Fuller and Joseph Raz, and argue that rulers cannot achieve their aims and abuse power without violating the principles of the rule of law. In other words, these principles do not help rulers to effectively achieve personal/extralegal aims.