What is Behind the Headscarf Ruling of the Turkish Constitutional Court?

Abstract

Modern constitutions foresee a constitutional judiciary body to serve as a limiting factor for the legislative body. The concrete users of this judiciary power have been the constitutional courts. The Turkish Constitutional Court takes Carl Schmitt as a reference, whether intentionally or not, while making the decisions in question. The Court did not use its factual review power, the power to review the content of constitutional amendments in general. In other words, during the 1982 Constitution's term the Constitutional Court remained within normative limits. However, when the issue at stake is related to the headscarf, the Court does not hesitate to use its factual review power in the court rulings. Perhaps paradoxically, the constitutional judiciary system is not seen only as a legal mechanism; apart from that, it has also been regarded as a possible intervener into politics through the courts. However, this intervention option is not designed in a way that will open the way for substitute‐opposition mission. The constitutional courts are increasingly assuming the co‐legislator position.