INTRODUCTON TO LAW Fall, 2014 Dr. Özlem Döğerlioğlu Işıksungur Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

INTRODUCTON TO LAW

Fall, 2014

Dr. Özlem Döğerlioğlu Işıksungur


WHY DO WE NEED ORDER?


Since with the earliest days of recorded history humans have lived in communities◦ Needs◦ To be protected from dangers of natural enviroment◦ İmpossibility of survival in the natüre entirely alone

Living in society requires order to regulate relations amongst its members. Because:◦ unregulated social life would be chaos◦ without some degree of order, society can not serve its

purpose and can not provide security for its members◦ order, generally speaking, is the condition in which

everything is in its right place and functioning properly

I- SOCIETY AND ORDER


WHAT İS THE AIM OF THE “ORDER”?


To regulate attitute and behaviour of individuals against other individuals and society

To regulate attitute and behaviour of society against individuals

To constitute an equilibrium between conflict of interests

AIM OF THE “ORDER”


Order, ◦ on the one hand gives freedom, ◦ on the other hand limits the freedom.

But the most important point is to constitute an equilibrium between individual interest and social interest

SOCIETY AND ORDER Continue…


WHAT IS “ORDER” AS A LEGAL CONCEPT?


As a legal concept, order, is the body of laws, rules, regulations and customs that apply to the relations between the members of a certain society.

DEFINITION OF “ORDER”


Composed of◦ Legal Orders (Hukuk Kuralları)◦ Moral Rules (Ahlâk Kuralları)◦ Religious Rules (Din Kuralları)◦ Rules of Good Manners (görgü kuralları)

II-RULES REGULATING THE SOCIETY


Definition:

All rules and principles that regulate and limit the conduct of individuals in a society,

Order, that is composed of legal rules and by goverment agency

LEGAL ORDER OR LAW


Integral part of social life The most important and effective order,

that regulates the society Regulates attitute and behaviour in the

society and enforcement of legal rules realised through State.

LEGAL ORDER Continue


The aim of the legal order is to ensure the social order.

Any problem in the legal order, affects the social order.

Legal order, briefly ensures:◦ Peace◦ Confidence◦ Equality◦ Freedom

LEGAL ORDER Continue


Moral Rules (Ahlâk kuralları) Religious Rules (Din Kuralları) Rules of Good Manners (görgü kuralları)

OTHER RULES REGULATING SOCİETY


MORAL LAW


Also called ethics Definition: Principles or standarts concerning

right or wrong conduct Example: to be honest, not to tell lies Define the principles, standarts, and ideas

which apply when judging human conduct In every society there exist certain general

moral principles,these principles implies that a person’s conduct or character is in conformity with the generally accepted standarts of goodness or rightness

MORAL RULES


They are concerned with human conduct. Many legal rules are derived from morality

◦ Definition of law All rules and principles that regulate and limit the conduct

of individuals in a society◦ Definition of ethics

Principles or standarts concerning right or wrong conduct Some actions are both prohibited by both

morals&law:◦ Example:

Murder Theft Defamation (Hakaret)

A-RELATIONS BETWEEN MORAL AND LEGAL RULES


EXAMPLE 1: To rescue a person injured in an accident◦ Moral duty◦ Legal duty- Article 98 of Turkish Criminal Code (Türk Ceza Kanunu)

ARTICLE 98-(1) Any person who fails to render assistance to an old, disabled or injured person at the extent of his ability, or fails to notify the concerned authorities in time, is punished with imprisonment up to one year or punitive fine.

(2) In case of death of a person due to failure in rendering assistance or notification of concerned authorities, the person responsible is sentenced to imprisonment from one year to three years.

EXAMPLE 2: Good Faith (Dürüstlük-Objektif İyi Niyet)◦ A moral principle◦ Fundamental principle of law by Civil Code ◦ Law makes direct reference to moral◦ Article 2 of the Turkish Civil Code (Türk Medeni Kanunu)«Every person is bound to exercise his rights and fulfill his obligations according to the principles of good faith.»

A-RELATIONS BETWEEN MORAL AND LEGAL RULES- Examples


EXAMPLE 3: Assistance duty of family members to each other

Moral rule Legal rule Article 364 of Civil Code

◦ «All persons are bound to contribute towards the maintenance of their ascendants and descendants in the direct line as well as of their brothers and sisters, where without such assistance they would became destitute»



EXAMPLE 4: Contradiction to good morals (Ahlakâ- adaba aykırılık)◦ Law refers to moral◦ Article of 27 of the Code of Obligations Contracts which are contrary to good morals are void

EXAMPLE 5: Taking good care of spouse to his/her step-children◦ Moral duty◦ Legal duty ◦ Moral duty is turned into legal obligation◦ Article 338 of Turkish Civil Code

“Spouses are also obliged to care and show attention to their minor stepchildren.

The other spouse helps the spouse who holds the custody of his/her own child as appropriate, and

represents the child for his/her needs to the extent situations and conditions require.”



EXAMPLE 7: Contract to testify (şahitlik yapmak) falsely in court or Contract to bribe a judge◦ Void in terms of moral law- contradiction to good

morals◦ Void in terms of law---- constitutes criminal

offence (suç)

◦ IMPORTANT! An immoral contract is not always constitutes

criminal offence but these kind of contracts rendered void and unenforceable.



Important!◦ If the contract’s objective is to achieve an

immoral purpose it will be considered void under the law

A-RELATIONS BETWEEN MORAL AND LEGAL RULES-


Moral-immoral acts/contracts Standarts ? According to whom? Private moral values- community more values Example

◦ Flirtation (flört)◦ Drinking Alcohol

may violate the private morality of a conservative individual but; be acceptable under the moral values of general community

Whether a contract is moral or immoral◦ General standarts are taken in to consideration NOT subjective

moral values of person involvedExample: to punish the infidelity (sadakatsizlik) of wife (adultery)- killing the wife

Moral obligation or crime?

B-PUBLIC and PRIVATE MORALITY


Law # justice Justice(Adalet):

◦ Fair/correct outcome of a legal dispute The purpose of every law must be uphold

justice

LAW AND JUSTICE


What are the Differences between Legal Rules and Moral Rules?

QUESTION?


Please discuss the following examples from the point of moral rules and legal rules

Case 1 ◦ A and B are taking the same “Introduction to Law” lesson◦ A is a hard working student- Midterm exam is AA◦ B’s grade in midterm exam is F◦ A and B enter in to contract under which A promises that

she will help B during the final exam.◦ A doesn’t keep the promise and B fails the exam

Case 2 The owner of a restaurant refuses to give meals to a

starving person because he is unable to pay

CASE STUDY


Case 3◦ A and B enter into agreement◦ A promises to have sexual intercourse with B in

return for jewelery (conditional acceptance)◦ Mutual promise◦ Both of them are unmarried◦ Is this contract valid legally and morally?◦ What happens if A refuses to fulfill her obligation?

CASE STUDY


Page 38 of the book. Discussion Points--- Discussion from moral

and legal point

HOMEWORK


RELIGIOUS ORDER &

RULES OF GOOD MANNERS


RELIGIOUS ORDER Relationship between law and religion In modern system- secular concept In ancient ages religious rules included

moral and legal rules Interrelation- law, moralty&religion

◦ Example: Ancient Greece and Rome


Religion◦ is belief in a divine (ilahi) or superhuman power or

powers, to be obeyed and worshipped (ibadet etmek) as a creator and ruler of the universe

◦ one of the the social institutions which regulate human relations ( by establishing rules- limit and regulate relations between people in society)

RELIGIOUS ORDER


NATURE OF RELIGIOUS RULES Integration of law and religion- theocratic

state◦ religious rules are directly applied to wordly

affairs◦ Organisation of the state rests on the will of God-In other words law expresses the will of God

Hardly be altered(changed) (without commiting sin)- what about dynamic nature of “law”? –depending upon the political values and changing needs of society


SEPERATION OF LAW FROM RELIGION-TURKEY EXAMPLE

Seperation of law from religion is called “secularism” State religion of the Ottoman Empire was Islam- (In written in

the first written Constitution of Empire-1876-Kanuni Esasi)◦ Sultan –protector of Islam and he is called as Caliph(Halife)

20 January 1921- the first constitution promulgated (yürürlüğe konmak-ilan edilmek)by the National Assembly–

20 April 1924- second Constitution, state religion is Islam 1928, the constitutional provision stating that “religion of the

State of Turkey is Islam” was deleted- clear sign indicating the abolition of the religious character of the state

1937- through the amendment to Article 2 of the Constitution- secularism principle is introduced


THE PLACE OF RELIGION IN TURKISH LAW

Religion as a social institution is among the areas regulated by law With the introduction of secularism, religion ceased to be an

institution and doctrine shaping the structure of the State and its legal system.

Religious beliefs of citizens are basic liberties protected by law◦ Article 115 of Turkish Criminal Code- Freedom of belief

Any person who prohibits or interferes with the perfomance of the services,rites or ceremonies of any religion shall be punished by imprisonment for one to three years- (Madde 115- Cebir veya tehdit kullanarak, bir kimseyi dini, siyasi, sosyal, felsefi inanç, düşünce ve kanaatlerini açıklamaya veya değiştirmeye zorlayan ya da bunları açıklamaktan, yaymaktan meneden kişi, bir yıldan üç yıla kadar hapis cezası ile cezalandırılır.)

◦ Article 341 of Turkish Civil Code“Parents shall have the right to decide on the child's religious education.Any agreement restricting this right of the parents shall be invalid. A major shall be free to choose his/her religion”. (Çocuğun dini eğitimini belirleme hakkı ana ve babaya aittir. Ana ve babayı bu konudaki sınırlayacak her türlü sözleşme geçersizdir.Ergin dinini seçmekte özgürdür)


THE PLACE OF RELIGION IN TURKISH LAW

Constitution prohibits the exploitation and abuse of religion and religious sentiments for political or personal gain (Constitutional Courtis empowered to ban any political party for acts and actions against this prohibition- Law of Political Parties)

Office of Religious Affairs is constitutional organ of the Turkish State- (Constitution Article 136) required to function according to the principle of secularism


RULES OF GOOD MANNERS Table manners, formal invitation Embody the forms and manners established by

convention as acceptable or even required in a “polite” society◦ Membership to a club, profession

Apply mainly daily life and required conformity to accepted standarts of proper behaviour

Widely applicaple to relations in the society In principle they are not legal rules and they are

not enforced by law, BUT◦ in some cases they may be part of legal system

example: saluting a superior officer in the military


DIFFERENCES – LEGAL RULES&OTHER

RULES OF CONDUCT???


Study page 47-53 of the book!!!!

Homework


Every nation has her own domestic (national) law which is different from others

Today, in the World there is about two hundred national systems.

But generally, there are four main groups.

DIFFERENT LEGAL SYSTEMS


WHAT ARE THESE MAIN LAW SYSTEMS?


Civil Law

Common Law

Islamic Law

Socialist Law

DIFFERENT LEGAL SYSTEMS


Roman Law Roman Law was the law that was in effect through out

the age of antiquity in the City of Rome and later in the territories of Roman Empire

The Roman rules became written through the efforts of Emperor Justinianus (called Corpus Iuris Civilis)

In the eleventh century in Italy, Roman law started a “new life” in the hands of Italien Professors of law of who taught students coming from various parts of Europe (It should be noted that in this process, Roman rules were amended to suit the domestic conditions and sometimes amalgated with existing traditional rules)

CIVIL LAW


In this system, at the begining the purpose of law system to regulate the affairs between citizens

That’s why Civil Law (Medeni Hukuk) is at core of the law system

Other branches of law, developed under the influence of private law

In this system law divided two parts: Private Law & Public Law◦ Private law regulates affairs between private parties◦ Public Law regulates government affairs between

public bodies and individuals

CIVIL LAW Continue…


WHICH COUNTRIES APPLY CIVIL LAW SYSTEM?

EXAMPLES?


◦ Continental Europe◦ Latin American Countries◦ Japon

CIVIL LAW SYSTEM COUNTRIES-EXAMPLES


Developed by judges (on a case by case basis)

Principles and concepts based on “judgement of court”

Development of “equity law” (to diminish of rigorous customs)

Imperfections of the system tolerate by legislation called “statute law”

COMMON LAW


WHICH COUNTRIES APPLY COMMON LAW SYSTEM?

EXAMPLES?


Comprise English-speaking world and territories◦ United States (however in Lousiana and some

extent Texas and California, the “Civilian” traditions has influed the system.Because these states were faounded by people of French and Spanish origin.)

◦ England◦ Australia◦ New Zealand

THE COMMON LAW SYSTEM COUNTRIES-EXAMPLES


Sources of Islamic law is ◦ “Quran”◦ attitude and statement of prophet(called “hadith-

hadis”)◦ Rules compounded by Islamic Scholars◦ Comparision (Kıyas)

Applied in Islamic Countries Based on religious principles Called as “ilm-i fıkıh”

ISLAMIC LAW


Applied in Cuba, North Korea

SOCIALIST LAW


WHAT ABOUT TURKEY? WHICH LEGAL SYSTEM IS

APPLIED IN TURKEY?


In Turkey, until 1926, Islamic law applied. From the beginning of 1926 with adoption of

Code Civil, Turkish Law System is Civil Law system

And Turkish Law System based on Private Law, Public Law divison

TURKISH LAW SYSTEM


Differences between «civilian» and «common» law systems. Pg: 80-82

Homework


CHARACTERISTICS WHICH DISTINGUISH LEGAL RULES FROM

OTHER RULES OF CONDUCT


The measures taken by the State to make persons comply with legal norms

rules of conduct which are supported by sanctions applied by the State.

The compulsory measures taken by the State against those who have violated legal norms

only legal norms are supported by the state ‘s power of sanction.

SANCTIONS-CONCEPT


criminal (punishment-ceza) civil(e.g.,compensation-tazminat) administrative ( e.g revocation of license-

lisansın geri alınması

◦ An injuction ( yürütmenin durdurulması; tedbir kararı)may also be regarded as a sanction ( It is an order of the court restraining a person from doing something injurious to another’s interst or commanding something to be done for the protection of another’s interest. The injunction is a legal remedy available in disputes between private individuals as well as between the private individual and public authoritiy).

TYPES OF SANCTION


Common Example of Sanction: Punishment◦ The law defines certain types of violations of the

social order as crimes and provides for the punishment of the offenders by the State. Fine Imprisonment

(inflicted on a person for a crime (offense) comitted by him/her,or for his/her failure to perform a duty prescribed by law)

TYPES OF SANCTION


Another type of sanction: Compensation◦ If a person inflicts damage (whether material or

immaterial) upon another person, or his property, he is legally liable and will have to rectify

his wrongful act by paying the injured party an amount of money determined by the Court.

TYPES OF SANCTION


legal wrongs: criminal and civil wrongs. The law redresses injures committed

against persons and property in two ways:◦ criminal prosecutions (cezai kovuşturma) where

the state punishes those responsible for causing harm or loss to another in a way forbidden by the law

◦ civil law actions,where the injured party brings a private suit for damages.

Criminal cases--- criminal court Civil cases---- civil court

REDRESS OF INJURIES


legislative organ decides the appropriate sanction, whether wrongdoer should be punished criminally or by making him/her pay damages to the victim for the harm caused by his/her strongful act.

By same act a person commit both a criminal and civil wrong◦ Example: Car accident

CRIMINAL OR CIVIL CASE?


Another types of Sanction: Nullity (Hükümsüzlük)◦First category: an act that is contary to a

certain statory provision is absolutely inopertative (without effect) from the begining (kesin hükümsüz;batıl).

◦Second category ,acts are not automatically inoperative from the beginning ;they are only voidable acts (iptal edilebilir).

TYPES OF SANCTION


NULLITY- First category:◦ A legal act is absolutely null and void ab inito (from the begining)

◦ In such case,the parties have been unsuccesful in bringing about the desired result because they have failed to follow some rule or to fulfil some requirement imposed by law.

◦ For example , certain transactions must be made according to specific procedures (formalities) laid down by law. If such a transaction fails to comply with these formalities,it will be void from the begining (kesin olarak hükümsüz ,batıl). The act is regarded as “dead” from the beginning and cannot have legal effect.

◦ (Marriage-ceremonial contract- authorized person . Failure to obey this rule has the following legal consequences:

the man and women will not be considered to be married, if they have children these will be considered illegitimate (born out

of wedlock). If one or them dies ,the surviving partner will not have the legal

right to inherit.)

TYPES OF SANCTION


NULLITY- Second category- Voidability

◦ Parties’ choice (or to one of them) to decide whether or not they wish to nullify effect of legal act ( or legal transaction –hukuki işlem ;hukuki muamele)

◦ Example :if one of the parties to an agreement has been induced by error(hata,yanılma) or fraud(hile aldatma) or threat (ikrah,korkutma),the aggrieved party may void such a contract by a unilateral (tek yanlı) declaration. But,if she chooses not to annul the act it will, remain valid and binding.

TYPES OF SANCTION


APPLICATION OF LEGAL RULES


Article 1 of Civil Code

Application and sources of law

“ The law must be applied in all cases which come within the letter or spirit of any of provisions.

Where there exists no applicable provision of law, the judge shall decide according to customary law and, in default thereof, according to the rules that he would lay down if he himself had to act as legislator

In rendering his decisions, the judge benefits from legal opinions and case law”

APPLICATION OF LEGAL RULES


1- Provisions of Law 2- Customary Law(Where there is no

applicable provision) 3- According to the rules that he would lay

down if he himself had to act as legislator

(no customary rule applicable)

APPLICATION OF RULES


◦ Ascertaining the applicable rules

◦ Determining the relevant facts (olgu, vakıa)

◦ Application of relevant provisions of law

RESOLUTION OF LEGAL CONFLICT


All legal cases must be based on certain facts The duty of bringing forward evidence of facts for the

particular case belongs to IN CIVIL CASES,

Plaintiff (Davacı) Generally speaking, the Court is bound by the evidence submitted by

the parties IN CRIMINAL CASES

Prosecution Generally speaking, if the Court is not satisfied with the evidence

submitted, it may seek to obtain further evidence on its own initiative.

There are different forms of evidence. Example: Testimony (statements made by the witness in court), written materials, material objects offered as a proof of existence of an alleged fact.

DETERMINING THE FACTS


The facts,◦ Example: 1- In DIVORCE case, the first fact which

must be proven is that there is legal marriage◦ 2-In eviction (tahliye) case, the plaintiff must

prove that he is the owner of the property in question

DETERMINING THE FACTS


The Court reaches the legal conclusion by applying the relevant provisions of law and taking into consideration, arguments and counter arguments made by the parties in the light of the relevant facts and legal rules.Some methods employed by the court in reaching their judgment are:

1- Syllogism 2- Argumentum a contrario 3- Analogy

METHODS IN REACHING THE JUDGMENT(VERDICT)


1- Syllogism:- Logical reasoning Act of thought by which from two given

promises(önerme) we proceed to a third premise.

- Example: - Majority(Rüşt) is attained by reaching age of 18

years (legal rule)- A has completed his eighteenth year (fact)- A has attained majority (judgment,decision)-



2- Argumentum a contrario:-an argument derived from the opposite of the meaning of a legal rule.Example:

-According to the Article 307 of Civil Code, for adoption (evlat edinme), the adopter (evlat edinen) should be at least 30 years old.--- General rule

-Persons under 30 cannot adopt a child (legal rule derived through the method of argumentum a contrario)

- Mrs. A is younger than 30 years (fact)-Mrs. A cannot adopt a child(judgment)



3- Analogy (örnekseme):- a gap in the law is filled through the application of a rule used in similar cases.Example: The law concerning surnames (Soyadı Kanunu) mentions that no repugnant or ridiculous words can be taken as a surname.There is no rule for the first name- there is gap- The gap may be filled by applying the rule concerning the surname to the first name by analogy.



The facts alleged should be proven. Usuallly, plaintiff has to prove the facts on

which the case is based but the defendant may have a burden of proof if he/she raises an “affirmative defense”◦ Affirmative defense, when the defendant does

not deny the existence of the facts put forward by the plaintiff but asserts new facts which refute them.

BURDEN OF PROOF (ISPAT YÜKÜ)


Example:◦ A alleges that B agreed to buy A’s book for 100 TL

and that failed to pay him the money◦ B does not deny the fact that he took the book

from A, but alleges that A did not sell it but gave it as a gift (affirmative defense) and therefore denies the liability.

◦ If A proves his assertion B will be bound to pay 100 TL to A

◦ If B proves his claim, he will not have to pay to A.



WHO MUST PROVE FIRST?



In criminal cases, all of the elements of crime with which the defendant is charged with must be proven by the Prosecutor.

“Everyone charged with a penal offence has the right to be presumed innocent until proven quilty” (Constitution Art. 38/IV, Universal Declaration of Human Rights Art. 11(1))



The burden proof may shift from one party to an other and claims and counter claims may go back and forth between parties.

Article 6 of Civil Code◦ “In the absence of a special provision to the

contrary, each party is bound to prove the existence of the facts on which he bases his right (claim)”



Whoever commences the legal action has the initial burden of proof but the burden of proof may shift from one party to another in the course of trial ◦ First, the plaintiff shall prove the facts on which

his case is based◦ If the defendant, raises conter claim as a defence,

he shall prove the facts on which his defence is based.



Sometimes it may be not easy to determine which party has the burden of proof◦ Example:

A alleges that he donated(bağışta bulunmak) to B on condition that B pay %5 interest on this amount to UNICEF each year

B accepts the existence of donation, but claims that there was no condition attached to it and therefore he did not pay any money to UNICEF

Both parties accept the existence of donation The contraversy is whether there is a condition or not



Both parties accept the existence of donation The contraversy is whether there is a condition or not If the existence of condition is proven, then A will have to right to

rescind (iptal etmek) the contract Article 6 of Civil Code----fails to provide an answer In this type of situations, it is generally agreed that determination of

the party who must prove his allegations is left to the discretion of judge (yargıcın takdir yetkisi) As a general rule, the burden of proof falls on the party who bases his

claim on an exceptional or unusual fact. The judge shall decide which claim is based on exceptional or unusual

fact. (In our example, the question is- “Is this type of donation usually free of any conditions?” If the answer is yes than A shall prove, if the answer is no then B shall prove that there was no condition attached to donation)

In court practice and doctrine, Article 6 of Civil Code is understood as “he who claims the existence of a fact which is contrary to the normal course of events has the burden of proof.”



Definition: The assumption of the truth of a fact without direct proof

Effective procedural device for shifting the burden of proof

PRESUMPTION


Natural presumptions established by logic or common knowledge

Statutory (Legal) Presumption Rebuttable Presumption

◦ Presumptions whose inaccuracy may be proven Irrebuttable (Conclusive)Presumption

◦ A fact that the law does ◦ not allow to be rebutted

PRESUMPTIONS (KARINELER)


Eg:◦ The husband is presumed to be the father of a child

born during marriage or thereafter during the period of gestation

Eg: Entries made in public registers and duly authenticated documents◦ Article 7 of Civil Code:

“Entries made in public registers and duly authenticated documents are sufficient evidence of the facts which they state” Thus if you base your claim on above mentioned then you

are not required to prove the accurancy of the facts mentioned in this entry, because, by law, it is presumed that it is correct.

STATUTORY(LEGAL) PRESUMPTION- KANUNİ KARİNE


Presumptions whose inaccuracy may be proven. Examples:

REBUTTABLE PRESUMPTION (ADİ KARİNE)

Presumption of Innocence (masumiyet karinesi)

Presumption of Paternity

Presumption of Good Faith

Presumption of Ownership


A person accused of a crime is innocent until proved quilty

Turkish Constitution article 38 par. 4 “No one shall be held quilty until proved quilty in a court

of law” Fundamental Right

The Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe says (art. 6.-1): "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law".

REBUTABLE PRESUMPTION: Presumption of Innocence

http://en.wikipedia.org/wiki/European_Convention_on_Human_Rights

http://en.wikipedia.org/wiki/European_Convention_on_Human_Rights

http://en.wikipedia.org/wiki/Council_of_Europe


The parties when dealing with each other acted honestly and did not engage in any deceptive acts

Article 2 of Civil Code◦ “Every person is bound to exercise his rights and fulfill

his obligations according to the principles of good faith” Article 3 of Civil Code

◦ “Bona fides is presumed whenever the existence of a legal position is dependent on the observance of good faith.However, no person can plead bona fides in any case where he has failed to exercise the degree of care required by circumstances.”

REBUTABLE PRESUMPTION: Presumption of Good Faith


Civil Code Article 898◦ “The person in possession of a movable property

is presumed to be its owner” ◦ “Taşınırın zilyeti onun maliki sayılır.”

REBUTABLE PRESUMPTION: Presumption of Ownership


Civil Code Article 302/I◦ “Defendant is the father of child where it is

proved that he cohabited with the child’s mother in the period between the three hunderedth and the one hundered and eightieth day before its birth”

◦ “Davalının, çocuğun doğumundan önceki üçyüzüncü gün ile yüzsekseninci gün arasında ana ile cinsel ilişkide bulunmuş olması, babalığa karine sayılır.”

PRESUMPTION OF PATERNITY


Irrebuttable (Conclusive)Presumption◦ A fact that the law does not allow to be rebutted ◦ It can not be refuted (çürütmek) by evidence◦ Example:

Article 1020/III of Civil Code “No person can allege that he has no knowledge of

particular entry in the Land Registry” “Kimse tapu sicilindeki bir kaydı bilmediğini ileri

süremez.”

IRREBUTTABLE (CONCLUSİVE) PRESUMPTİON


Ambiguous(muğlak), uncertain or vague (kesin olmayan)legal rules◦ The rules are abstract and general◦ It is not possible to make rules that will cover all details of

specific and concrete cases that may arise in the future◦ Realities of life are so numerous and variable that the law can

only lay down general rules for regulating a certain type of legal institution

◦ Intentionally leave the rest to the judge Task of the judge’s to determine the correct meaning of the rule

in question When applying the abstract rule to a real case, The judge tries to

find the proper and correct meaning of the rule in the light of the facts of case involved.

INTERPRETATION OF LEGAL RULESWhy Do WE NEED INTERPRETATION?


The Process of discovering and ascertaining the meaning of a written text to apply it to a real case.

Only, the interpretation of court have legal and final effect

Interpretation Methods:◦ Textual(Literal) (grammatical)Interpretation◦ Historical Interpretation◦ Logical Interpretation◦ Teological Interpretation◦ Unrestricted Interpretation◦ Interpretation in the field of International Law

INTERPRETATION OF LEGAL RULES


◦ Textual(Literal) (grammatical)Interpretation seeks only to ascertain the meanings of the words and

sentences in the applicable legal provision ◦ Historical Interpretation

analysis of the history of the drafting and adopting of the law in question

analyzes the material relating to the debates in the Parliament with yhe purpose of ascertaining the grammatical meaning of the words as they were understood by the members of the Parliament

◦ Logical Interpretation The law is ambiguous or There are two or more inconsistent provision The judge shall analyze the law in logical manner, correcting

obvious gramatical errors and taking into consideration the spirit of law



◦ Teological Interpretation The judge shall ascertain the purpose of the law

concerned by analyzing its legislative history within the context of cultural, social and economic values as well as the balance of the interests that existed at the time the law was enacted

◦ Unrestricted Interpretation Without any reliance on written text Baed on actual event and the needs created by the

conditions prevailing at that time



Interpretation in the field of International Law

Literal Method Historical Method Other methods

INTERPRETATION IN THE FIELD OF INTERNATIONAL LAW


SOURCES OF LAW


The way and methods that compose of and develope the legal rules

Types of sources◦ Binding- not binding sources

Example: binding---- statutes not binding--- doctrine

◦ Written -unwritten sources◦ Main sources- complementary sources

SOURCES OF LAW


Written Sources◦ The Constitution◦ Statutes (Kanunlar)

International Treaties Decrees with the effect of law (KHK)

◦ Regulations (Tüzükler)◦ By Law (Yönetmelik)

Unwritten Sources◦ Customary Law (may be applicable when there is

no written rule relevant to the case)

MAIN SOURCES OF LAW


◦ The Constitution◦ Statutes (Kanunlar)◦ Regulations (Tüzükler)◦ By Law (Yönetmelik)

Laws shall not be contrary to the previous rules.Example: The statutes should not be contrary to

constitution

ORDERS OF WRITTEN SOURCES


Constitution regulates, structure, organization,polity (yönetim biçimi) of State, the relationship of the State organs and fundamental rights and freedoms of individuals.

Generally it is written◦ Exception: England

Rigid constitution/Flexible constitution◦ Our constitution is rigid (It is hard to change)

CONSTITUTION


Article 11 of Constitution“The provisions of the Constitution are fundamental

legal rules binding upon legislative, executive and judicial organs, and administrative authorities and other institutions and individuals.

Laws shall not be in conflict with Constitution.”

Laws that are in conflict with Constitution shall be annuled by Constitutional Court

CONSTITUTION


Texts that are adopted by the competent legislative authority in conformity with the methods that is required to adopt a statute

It should be general, objective and permanent Legislative Authority: The Grand National Assembly

of Turkey◦ This competence only belongs to The Grand National

Assembly of Turkey and it is untransferable. Subject of Statutes: The legislative body may

determine the subject of statutes freely on condition that they should be in compatible with the Constitution.

STATUTES-CODES


Proposing authority: Council of Ministers and Member of the National Grand Assembly

◦ Proposal- negotiation and analyzing in the related commission– general assembly– adoption- Approval of President -publication

Approval of PresidentThe President may approve or send back to Assemby (except budget act)within 15 days If Assembly adopts the same act without any amendment, Presedent shall approve

Publication: Official Newspaper Enter into force on the date mentioned in the Act, if not

mentioned 45 days after the publication

STATUTES-CODES


International Treaties According to the Turkish Constitution, International Treaties duly

put into effect are of equal status to statutes. No claim of unconstitutionality of a international treaty can be

heard by the Constitutional Court (Art. 90/last par.)

Decrees with the effect of law(Kanun Hükmünde Kararname)◦ 1971 amendment to 1961 Constitution◦ 1981 Constitution--- the application scope is expanded

Normal state ---- necessity to competence act--- social and economical rights and freedoms

Emergency state--- all fundemantal rights and freedoms◦ Enter into force on the date of publication in the official

newspaper

STATUTORY SOURCES


◦ Council of Ministers– Council of State revision◦ Publication in the Offical Newspaper◦ For the purpose of application of Status or

regulation of the situation that the law orders◦ If one subject is not regulated by statues, it is not

possible to issue regulation on that subject◦ In confirmity with statute◦ Enter into force on the date mentioned in the

regulation, if not mentioned 45 days after the publication

REGULATIONS


◦ Public Institutions may regulate the subjects related to their duty

◦ Public Institutions has competence ◦ For the purpose of application of statute and

regulation ◦ Should be in confirmity with statute◦ For annulment of by laws--- Council of State◦ Publication is not compulsory. Only the ones

mentioned in the Act numbered 3011 shall be published.

BY-LAWS


The judge may recourse to customary law if there is no written law applicable to the case

Three conditions to became a legal rule◦ Continuity: application for a long

period◦ General belief: general belief ◦ State Support:

UNWRITTEN SOURCES-CUSTOMARY LAW


Judicial Decisions◦ Local Court Decisions◦ Supreme Court Decisions

Unified decisions of Supreme Courts Doctrine

◦ Opinion and thought of Legal Scholars◦ Non-binding

COMPLEMENTARY SOURCES


Official Gazette Codes of Laws (düsturlar) Complete Collection of codes being in force(

yürürlükteki kanunlar külliyatı) Record Review(tutanak dergisi) Codes Review(Kanunlar Dergisi) Resmi Dergiler(Official Periodicals) Private Publications(Özel Yayınlar)

PUBLICATIONS WHERE WRITTEN SOURCES TAKE PLACE


BRANCHES OF LAW


Continental Europe, classification according to the subject matter and the nature of rules applied by law◦ Public Law

Regulates relations between private individuals and the State

Ascertains the extent of State authority and regulates the relationship of the various State organs with each other and with public

◦ Private Law Regulates relationship between private person

BRANCHES OF LAW


Domestic Law-International Law◦ Domestic Law: Body of rules, regulations that

organize and dictate the internal affairs of a State Example: Turkish law, French law Subdivision :Public Law-Private Law

◦ International Law: Law which regulates and organizes legal relations between and amongst states. Subdivision :Public Law-Private Law

SOME OTHER TYPES OF CLASSIFICATION


Substantive Law (Maddi hukuk)- Procedural Law(Usul Hukuku)◦ Substantive Law: The body of legal rules that

create,grant, recognize and determine rights and impose obligations and duties Example: rules of civil law

◦ Procedural Law: The legal rules which provide the method for the enforcement of rights and for the prosecution and punishment of violations of criminal provisions Example: Law of Civil Procedure(Medeni Usul K.) Law of Criminal Prosedure (Ceza Usul K.)

SOME OTHER TYPES OF CLASSIFICATION


Private law, regulates the relations between individuals taking into consideration the principles of equity and freedom of discretion(irade özgürlüğü). In the private relations, the parties can not force the counter party to do sth that he/she do not want to do

◦ Example: freedom to work or not to work Equality (all persons—natural or legal) No superior position- even State(no sovereignty) Voluntary agreement between parties Legal obligations are created by bilateral contract Aim is to ascertain the nature and degree of personal

liability derived from the certain act and the level of compensation NOT to ascertain whether he/she is quity, there is quilt/crime

PRIVATE LAW AND ITS BRANCHES


◦ Civil Law (Medeni Hukuk) Law of Person Family law Law of Succession (Inheritence law) Law of Property Law of obligations

◦ Commercial Law Law of commercial enterprise Commercial Partnership (Corporate law)

Collective Company Commandite Company Limited Liability Company Joint-stock company (anonim şirket) Co-operative Partnership

Valuable Documents-Negotiable Instruments Transportation Maritime Law Insurance

◦ International Private Law Conflict of Law Law of Nationality Law of Aliens

PRIVATE LAW AND ITS BRANCHES


Public law deals with the relationship and resolution of conflicts between indivuals and State

One of the parties relation is or all of the parties of relation are public organisation/s (State)

State is always in a superior position in its relations with indivuduals

Inequality between parties.Example: expropriation (kamulaştırma)

There is order (State orders) Public authorities may impose legal obligations upon

person regardless of whether they agree or not Legal obligations imposed by the public authorities

unilaterally

PUBLIC LAW AND ITS BRANCHES


Constitutional Law Administrative Law Criminal Law Law of Procedure (usul hukuku)

◦ Law of civil procedure◦ Law of criminal procedure◦ Law of administrative procedure

Public International Law (Devletler genel) Environmental Law

PUBLIC LAW AND ITS BRANCHES


State Definition: Political organisation possessing the ultimate authority to govern its own population within its territory

State composes of three main elements◦ A defined territory◦ A permanent population◦ Sovereignty (egemenlik)

PUBLIC LAW-CONCEPT OF “STATE”


A- TERRITORY B- POPULATION C- SOVEREIGNTY

PUBLIC LAW-CONCEPT OF “STATE”MAIN ELEMENTS


Intellectual Property Law◦ Copyright ◦ Trademark◦ Patent

Labour Law Aviation Banking law

BRANCHES OF LAW WHERE PUBLİC AND PRIVATE CHARACTERISTICS ARE MIXED


Please work on the differences of PublicLaw- Private Law

Page:89-91

Homework


Question 1: Which statement about “legal order” is not correct? a) It is one of the rules regulating society b) The source of legal order is compounded by Islamic Scholars c) The aim of the legal order is to ensure the social order. d) Legal order, briefly ensures peace, confidence, equality,freedom e) Regulates attitute and behaviour in the society and enforcement of legal rules realised through StateQuestion 2: How many statement/s mentioned above is/are correct?

◦ The legal rules are abstract and general◦ It is not possible to make rules that will cover all details of specific and

concrete cases that may arise in the future ◦ Realities of life are so numerous and variable that the law can only lay

down general rules for regulating a certain type of legal institution◦ Task of the judge is to determine the correct meaning of the rule in

question

a)One b) Two c) Three d) Four

Some example Questions


Question 3: Which one about “State” concept is not correct?

a- State as a political organization possessing the ultimate authority to govern its own population within its territory.b-The essensial elements of State are: Territory, population,sovereigntyc- State’s territory only includes the surface land.d- Populution constitues the physical basis for the existence of a Statee-Under the Turkish Constitution, sovereignty belongs uncondionally and without any restriction to the Nation. Question 4. “There can be no crime without law.” Please explain the mentioned statement in detail by giving example?

Some example Questions