INTL205 – INTRODUCTION TO LAW

1. INTL205 – INTRODUCTION TO LAW • What is law ? • Law can be defined as a code of conduct, or a set of rules that controls the activities of people in a community a) towards each other in their private and business lives b) in their relationship with the state. • Unlike other rules, like religious and moral rules, law is binding on the whole community. People cannot ignore or change the law to suit themselves.

2. INTL205 – INTRODUCTION TO LAW • Generally, law reflects the moral and religious values of a community or country. • Changes in the moral and religious values over time and location cause amendments (adjustments) in the legal rules (laws). • For example, the more secular a country becomes, the less religious values will be reflected in its law. Like the laws on divorce in mainly catholic countries. Some have allowed divorce relatively earlier, while some have allowed it only in 1990s.

3. INTL205 – INTRODUCTION TO LAW • Law is enforceable by sanctions • Law is dynamic; like society, law is never static. It is always changing, being reinterpreted or redefined. For example, the developments in technology and transportation led to the creation of special legal rules regarding the environment and pollution since the societies tend to consume and pollute more and more everyday.

4. INTL205 – INTRODUCTION TO LAW • Aims of Law; are all concerned with making society more stable and enabling people to flourish. • Justice should be the basic aim of law. However, sometimes a legal decision can be legally correct but unjust. See the example at your book... • Protection of the rights of individuals in their private lives. For example, legal rules for removing children from unsuitable homes.

5. INTL205 – INTRODUCTION TO LAW • Protection of the rights of individuals in their professional lives. Law provides a system that will ensure a reasonable security concerning the transactions taking place among individuals. • Law defines the system of government. Law settles how the state is to be governed. It defines the system, functions and duties of government. • BRANCHES OF LAW; PUBLIC LAW & PRIVATE LAW

6. INTL205 – INTRODUCTION TO LAW • I. PUBLIC LAW governs the relationship between the state and the individual, between different organs of the state, and between one state and another. The aims of public law; • to settle public policy, protect public interest and to procure public order. • Main branches of the public law are constitutional law, administrative law, criminal law, and international law.

7. INTL205 – INTRODUCTION TO LAW • A) Constitutional Law; deals with the method of government within the state. It sets the structures of the main organs which use the authority of legislature, executive and judiciary. Constitutional law also defines the fundamental rights and freedoms granted to individuals. • B) Administrative Law; includeslaws and principles to regulate and control the agencies which administer the legislative provisions. It directs the relations between officials and citizens (i.e. objections).

8. INTL205 – INTRODUCTION TO LAW • C) Criminal Law; is a state-administered legal system that prosecutes those who commit offenses (crimes, felonies). Criminal law is designed to protect the public from attacks on their person and property. State defines the offenses that it should take step to prevent, such as theft, treason etc... • D) International Law; is the law of coexistence of the international actors and communities. It is related to the relations between states, and its main sources are intl. agreements, which are incorporated in the national laws of the signatories.

9. INTL205 – INTRODUCTION TO LAW • II. PRIVATE LAW deals with the rights and duties of individual towards one another, such as duty to carry out a contract. • The main distinction between criminal law (under the Public Law) and private law is that in criminal cases, the state brings the action of prosecution and administers the punishment. However, in civil cases related to private law, the individual initiates the action and the courts award the offended individual the remedy best suited to the situation. See the examples in your book... • Main branches of the private law are:

10. INTL205 – INTRODUCTION TO LAW • A) Civil Law; includes the following: • Law of Persons; deals with the beginning and the termination of personality, real personality, legal personality. • Family Law; deals with marriage, divorce, adoption... • Law of Succession; deals with the inheritance. • Law of Obligations; deals with the obligations enforcable by law, which are obligations arising from contracts, obligations of tort origin, and obligations arising from unjust enrichment.

11. INTL205 – INTRODUCTION TO LAW • B) Commercial Law; is the system of legal rules regulating status of merchants, commercial activities, trademarks and negotiable instruments. • C) International Private Law; sets the rules to solve private disputes of international character. DIFFERENT SYSTEMS OF LAW • CIVIL (ROMANO-GERMANIC) LAW SYSTEM • COMMON LAW SYSTEM (ENGLISH SYSTEM)

12. INTL205 – INTRODUCTION TO LAW COMMON LAW SYSTEM (ENGLISH SYSTEM): *It came into being, historically, in England largely as a result of the activity of the royal courts of justice after the Norman conquest. *Unlike the Romano-Germanic (Civil) law system, Common law system developed for many centuries without codes and university-trained lawyers. *The common law of England was (and still is) an unwritten law that was formed primarily by judges.

13. The Common Law System seeks to provide the solution to a trial rather than to formuate a general rule of conduct for the future. • As a result of the atmosphere in which it was formed(a very military feudalism), common law system’s immediate preoccupation has been to re-establish peace (and order) rather than to articulate a moral basis for the social structure (which can be listed as the primary consideration of civil (or Romano-Germanic) law system).Therefore, common law system seems to be developed as a public law, but its jurisdiction gradually enlarged and extended to the areas related to the private law.

14. INTL205 – INTRODUCTION TO LAW • HISTORICAL FORMATION OF ENGLISH LAW; Contrary to Romano-Germanic (European) system of law, the law of England did not experience a renewal through codification process. • Norman Conquest-Feudalism-Royal Courts; The Norman conquest brought to England a strong and centralized organization. • Feudalism was installed in England and feudal courts were established, but they were applying only the customary laws. The king only exercised “high justice” in very exceptional cases via the Curia Regis.

15. INTL205 – INTRODUCTION TO LAW • The Curia Regis was not an ordinary court open to all. From the thirteenth century on, certain parts of the Curia Regis developed as royal courts. • Royal Courts had by no means a general jurisdiction. They had to deal with the cases related to the prerogatives of the feudal barons who did not like the interference of such courts in a domain that they considered as “theirs”. • Therefore, the intervention of the royal courts was at first limited to some cases like serious criminal andland-related cases.

16. INTL205 – INTRODUCTION TO LAW • Extension of Royal Jurisdiction; realized when the powers of the king grew as a sovereign source of justice. Since the justice of the king appeared superior to that of the feudal courts, royal courts started to hear more cases, and they extended their juristiction. • Writs: Until the royal courts became the courts of general jurisdiction, it was not a right to press a claim before the royal courts. So,a request had to be addressed to the Chancellor, asking him to deliver a Writ that was to enable the court to act.

17. INTL205 – INTRODUCTION TO LAW • Remedies Precede Rights; Justice was served by the Common Law System on the basis of judgements which were reached after the completion of a fixed set of procedures. • No Distinction Between Public and Private Law; especially after the extension of the jurisdiction of royal courts. • Principle of Equity – Appeal to Royal Aut.; Private persons, who are unable to obtain justice from the royal courts, were given the right to appeal to the king. The authority of the king was delegated to the chancellor to judge such cases (equity law).

18. INTL205 – INTRODUCTION TO LAW • Dual Structure of English Law; In the seventeenth century, a compromise took place between common law and equity law. Jurisdiction of the chancellor was going to remain but would not grow at the expense of the common law. • Nineteenth Century Reforms: The distinction between Common law courts and Equity courts was removed. A greater role was given to the laws enacted by the Parliament. • Twentieth Century Reforms

19. INTL205 – INTRODUCTION TO LAW STRUCTURE OF ENGLISH (COMMON) LAW; • No distinction is traditionally made in this law system between private and public law. • The distinction between the common law and the equity law is essential in the English (common) law system. • The remedies of equity law (the principles applied by the chancellor) were different from those available at common law. This system gradually became a body of legal rules administered by the Court of Chancery.

20. INTL205 – INTRODUCTION TO LAW • The Judicature Acts of 1873-1875 brought the fusion of common law and equity law. • Two different procedures still exist only in terms of branches of law under their jurisdictions: Common law comprises the criminal law and the whole of the law of contracts and torts. On the other hand, Equity law includes the law of real property, trusts, partnerships, bankruptcy etc... • Concept of judge made legal rule; case law (see your book).

21. INTL205 – INTRODUCTION TO LAW SOURCES OF ENGLISH (COMMON) LAW SYS • It is a judge-made system, which means that court decisions represent the main source of law. Legislation has traditionally occupied a secondary position. Other sources are custom and legal writing (doctrine). • Court Decisions; Judges of the superior courts not only apply but also define the legal rules (law). Respect to the previous court decisions is established as a rule; the rule of precedent.

22. INTL205 – INTRODUCTION TO LAW • Legislation; refers to the various rules, statutes, acts and regulations which are enacted by the Parliament (legislature). • According to the traditional theory, the legislation can only become a part of the common law when it has been applied and interpreted by the courts. However, the role of legislation in the common law system is growing since the end of the WWII (as a result of the requirements for the welfare state & European integration).

23. INTL205 – INTRODUCTION TO LAW • Custom; according to a statute (law) of 1275, which is still in force, a customary rule becomes legally binding if it dates back from immemorial time (before 1189). • Requirement of being immemorial does not concern commercial customs. • Many customary rules have been incorporated in the Common law either by the judges who use them as remedies or by the Parliament that enacts them as law. • Legal Writing; is less effective in the common law system when compared to its role in the civil law system.

24. INTL205 – INTRODUCTION TO LAW CIVIL (ROMANO-GERMANIC) LAW SYSTEM: *Here, the rules of law are designed as rules of conduct intimately linked to the justice and morality. *Formulation of the laws within the civil law system was a task fallen to the scholars who enunciated (expressed) the doctrine on an aspect of the law. *Another feature of this system of law is that it has evolved as an essentially private law (in contrary to the common law system) in the form of “codes”.

25. INTL205 – INTRODUCTION TO LAW • HISTORICAL FORMATION OF THE SYS.; • The Romano-Germanic (civil) law system originated in continental Europe. It was formed by the European universities on the basis of revival of the Roman Law. Renaissance of the Idea of Law; With the grow of cities and commerce, the new society became conscious of the need for law to assure the order and security for the sake of social progress. Renaissance of Roman Law Studies (in Uni.) Universities prescribed the rules which must be observed in people’s social behavior.

26. INTL205 – INTRODUCTION TO LAW • Law was considered as a model of social organization, and only Roman law could offer an organized and clear system at that period, which could easily be studied and used as a basis for a further evolution. • Rather than providing practical and immediate solutions to trials (lawsuits) like in the case of the common law system, Romano-Germanic (Civil) law system attempts to express the rules (in the forms of “codes”) in order to create the essence of justice in a well ordered society.

27. INTL205 – INTRODUCTION TO LAW • The Natural Law School; • The law taught in the universities moved more and more away from the Roman law, and it became suitable for universal application as it was founded on reason. • A new school of thought, the natural law school, triumphed in the universities in the 17th and 18th centuries. This faction advocated a more progressive method in the application and interpretation of the Roman law that would provide and guarantee the natural rights and liberties of individuals which meant the formulation of public law branch under Civil law sys.

28. INTL205 – INTRODUCTION TO LAW • CODIFICATION; is another success of the Natural Law School in terms of its contributions to the Civil (Romano-Germ.) Law System. • This process systematically defined and created collections of legal rules in order to formulate codes of conduct (behavior) in both public and private spheres. STRUCTURE OF THE LAW IN CIVIL LAW SYS. Since the public and private interests cannot be weighted in the same balance, it has always been difficult to impose the respect for the law upon the state itself.

29. INTL205 – INTRODUCTION TO LAW • For a long time, only private law was the most effective branch of the Romano-Ger. Law Sys. Slowly, the idea that the state should no longer exercise an absolute power gave way to the understanding of a state that guarantees the rights and liberties of its citizens. • This debate includes questions like; how are the state’s activities to be reconciled with the principles of equality and freedom? How can the government, without a paralysis of its own operation, take private interests into account?

30. INTL205 – INTRODUCTION TO LAW SOURCES OF LAW IN CIVIL LAW SYSTEM: • Legislation (enacted law or statute); There is a hierarchy in the application of legislation in which the constitution is given a greater position than that of the ordinary legislation. A place similar to constitution is attributed to international treaties. Next, enacted laws (statutes) and codes occupy a key place. Besides these, there are other legal rules and regulations originating from non-legislative organs, such as regulatory acts and decrees (originating from executive).

31. INTL205 – INTRODUCTION TO LAW SOURCES OF TURKISH LAW 1- Legislation in the Turkish Legal System; The 7th Article of the Turkish Constitution states that “legislative power is vested in the Turkish Grend National Assembly. This power shall not be delegated.” Turkey has followed the continental (civil) law system. Therefore, legislation is the primary source of Turkish law. Written laws (legislation) may be classified into six categories of descending importance;

32. INTL205 – INTRODUCTION TO LAW a) Constitution: In the hierarchy of enacted laws in Turkish legal system, constitution occupies the first place. The Turkish Constitution of 1961 has introduced the judicial control of legislative acts and a special Constitutional Court has been created to perform this function. The same principle has also taken place in the Turkish Constitution of 1982. Recently, the structure of Constitutional Court was a matter of severe debates regarding the constitutional amendment proposal of the ruling party in Turkey, which was passed through a referandum on 12 Sept. 2010.

33. INTL205 – INTRODUCTION TO LAW b) Codes and Statutes: They have different scopes and applications. The Civil Code and the Criminal Code are applied in all parts of Turkey and all Turkish citizens (together with the residents) are subject to them. On the other hand, Labor law, for instance, covers only certain classes of people like employers and employees. In rear cases, a law may apply only to a certain citizen. For instance, the surname “Atatürk” was issued by a special act of Parliament. A code or statute is applied until it is abrogated or changed.

34. INTL205 – INTRODUCTION TO LAW c) International Treaties: International treaties to which Turkey is a party are approved by the Turkish Grand National Assembly (TGNA) by enactment of a law. Technically, therefore, treaties are statutes which, like all other statutes, become enforcable after their publication in the Official Gazette. However, the constitutionality (judicial control) of treaties, unlike other statutes, may not be challenged. Some treaties can become binding without the approval of the TGNA (see your book).

35. INTL205 – INTRODUCTION TO LAW d) Statutory Decrees: TGNA can authorize the Council of Ministers (cabinet, or the executive) to issue statutory decrees which have the effect of law on certain topics. The scope, principle and duration of the power to issue these speical statutory decrees are clearly stated. Thse decrees become binding on the day of their approval in the parliament and publication in the official gazette. The constitutional court can exercise judicial control over the statutory decrees with the exception of the cases of emergency and martial law.

36. INTL205 – INTRODUCTION TO LAW e) Regulations; govern the means, or the ways by which the codes and statutes are enforced. They can be issued by the Council of Ministers and signed by the President of the Republic. Regulations are examined by the Council of State (danıştay), and they cannot be contrary to the statutes. f) By-Laws: Prime-ministry, ministries and other public organizations, such as universities and municipalities may issue by-laws in order to regulate their internal affairs or their relations with individuals. Council of State can repeal by-laws.

37. INTL205 – INTRODUCTION TO LAW THE PROBLEM OF INTERPRETATION The codes and statutes are usually framed and phrased in more or less general terms, and interpretation becomes necessary in order to apply these general terms, or written formulas (in codes) to particular cases in lawsuits. There are 4 methods of interpretation: a) Grammatical Interpretation; where the judge is bound by the very words of the legal provision(s) that he or she interprets.

38. INTL205 – INTRODUCTION TO LAW b) Logical Interpretation; happens where the judge goes a step further in interpreting the law especially if the wording of the statute to be applied is ambiguous. c) Historical Interpretation; is a method to be realized when the words of a statute do not reveal it by methods discussed in a) and b) options above. The judge takes into consideration all the steps which led to the passing of the given statute (in hand) in order to discover the intention of law-maker in issuing that law. d) Teleological Interpretation; this method considers the facts of social live (France).

39. Non-Retroactivity of Laws; is accepted as a general principle in Turkish law. No person is going to be punished for an act that is not considered an offense (crime) under the law in force at the time it was committed. • Enfrocement of the Statutes; starts after thir publication in the Official Gazette subsequent to their promulgation by the President. If there is not any mention of a statute’s effective date in its context, it becomes effective 45 days after its publication in the Official Gazette. • Repeal of Statutes-Annulment: Usually, the previous law is nullified by a new law.

40. INTL205 – INTRODUCTION TO LAW 2- CUSTOM: In Turkish legal system, laws are directly set against existing customs to push the trends in Turkish society towards contemporary or modern patterns. However, this does not mean that the customs are totally ejected from Turkish law. Following requirements must be satisfied by a custom to have legal validity; a) Antiquity: A custom must have existed for a long time and no living person should know the beginning of it.

41. INTL205 – INTRODUCTION TO LAW b) Continuity: A custom must be continuously observed. If its practice is interrupted in favor of another custom, the requirement of continuity is not realized. c) Popular Belief in the Rightness of a Custom (opinio necessitatis) d) State Sanction: Until the courts apply customs, giving them the sanction of state authority, they are not law. In the 1st Article of the Turkish Civil Code, the application patterns of customary rules are stated (see your book). e) Agreement with Statutory (enacted) Law

42. INTL205 – INTRODUCTION TO LAW 3- COURT DECISIONS: Contrary to common (Anglo-American) law system, countries belonging to the Romano-Germ. (Civil) law system do not accept judicial precedents (previous court decisions) as a source of law in theory. However, in practice, previous court decisions (or judicial precedents) are generally accepted as a source of law by the judges in the countries of Romano-Germanic (Civil) law system, such as Turkey.

43. INTL205 – INTRODUCTION TO LAW • PRECEDENTS IN TURKEY; Turkish courts are bound to make their decisions in conformity with the statutory law (enacted legislation). • If there is no statutory rule and no applicable customary rule, a Turkish judge can either act as a law-maker and lay down a new rule, or benefit from judicial precedents. • In Tukey, inferior civil and ciriminal courts are bound by decisions of Court of Cassation, while the decisions of the Council of State is binding for the administrative courts.

44. INTL205 – INTRODUCTION TO LAW • Court of Cassation (Yargıtay): Instead of its all decisions, only the decisions of the general assembly of all chambers of the Court of Cassation are binding. • If there is a contradiction between the decisions of a chamber of the Court of Cassation or between two chambers or if it is necessary to alter (change) establihed precedent, the General Assembly on the Unification of Judgements makes a unifying decision (İçtihadı Birleştirme Kurulu Kararı), which is completely binding.

45. INTL205 – INTRODUCTION TO LAW • The Council of State (Sayıştay); a) settles administrative conflicts, b) expresses its opinions on the draft laws submitted by the Council of Ministers, c) examines draft regulations, d) acts as the court of appeal in administrative cases. • Three-fourth (3/4) of its members are elected by the High Council of Judges and Public Prosecutors (HSYK), one-fourth (1/4) of its members are appointed by the President of the Republic. • The Council of State is composed of ten chambers; two administrative and eight judicial chambers.

46. INTL205 – INTRODUCTION TO LAW • The Court of Accounts (Sayıştay); is in charge of auditing the revenues, expenditures and property of government and its agencies on behalf of the Turkish Grand National Assembly. It also makes decisions regarding the accounts and operations of responsible government officials. • High Military Administrative Court • The Military Court of Cassation 4- DOCTRINE: In accordance with the Civil law system, the writings of legal authors form another source of the Turkish law.

47. PUBLIC LAW The public law was considered as a sensitive issue for a long time because; a) it dealt with the power of the state and its control, b) it dealt with the the public interest in relation to private interest. Definition of Public Law: It is the branch of law that deals with the state in its political capacity. It manages the composition, power, activities and duties of the state. It governs the relationships between the state and its citizens, between different organs of the state, and between one state and another.

48. INTL205 – INTRODUCTION TO LAW The aims of Public Law are to; • settle public policy by organizing the power of the state, • protect public interest by organizing the activities of the state (for common good), • procure public order (peace and security). MAIN CONCEPTS UNDERLYING PUBLIC LAW Definition of the State: It is a political entity organized under a definite government that is recognized by the citizens who live within the boundaries of a territory under its sovereign power. It should also be recognized by other sovereign states.

49. INTL205 – INTRODUCTION TO LAW • The Essential Elements of the State are; • the human element • the territorial element • sovereignty (internal & external) External Sovereignty; means that the other states respects the independence of a state. If a state is externally sovereign, it can formulate its own foreign policies and become a member of the international community. Ofcourse, external sovereignty does not mean that the state can do whatever it can.

50. INTL205 – INTRODUCTION TO LAW Internal Sovereignty; is the right of a state to issue or make rules for the entire territory that it controls and to enforce them on the whole population. There cannot be two different bodies claiming sovereignty on the same piece of land. • Rule of Law; exists when a government’s powers are limited by law and citizens have a list of rights that the rulers are bound to respect. State agencies have the ultimate authority to make and implement decisions, but the rule of law limits this authority for the sake of citizens’ liberties.