Law and Legislation

Course-LL.B

Subject-Jurisprudence-I

Unit-2

1

• 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.

• Generally, law reflets 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.

• 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.

• 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.

• 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

• 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.

• 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; includes laws and principles to regulate and control the agencies which administer the legislative provisions. It directs the relations between officials and citizens (i.e. objections).

• 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.

• 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:

• 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.

• 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)

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.

• 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.

• 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.

• 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 and land-related cases.

• 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.

• 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).

• 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

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.

• 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).

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.

• 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).

• 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.

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”.

• 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.

• 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.

• 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.

• CODIFICATION; is anterms 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.

• 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?

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).

SOURCES OF TURKISH LAW1- 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;

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.

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.

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).

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.

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.

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.

INTL205 – INTRODUCTION TO LAWb) 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).

• 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.

INTL205 – INTRODUCTION TO LAW2- 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.

INTL205 – INTRODUCTION TO LAWb) 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

INTL205 – INTRODUCTION TO LAW3- 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.

• 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.

• 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.

• 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.

• 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 Cassation4- DOCTRINE: In accordance with the Civil law system,

the writings of legal authors form another source of the Turkish law.

PUBLIC LAWThe 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.

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 LAWDefinition 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.

• The Essential Elements of the State are;

a) the human element

b) the territorial element

c) 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.

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.

• How can the rule of law be enforced?

By the control of courts which make sure that laws are respected. This is called as judicial review of the state power.

• State power can also be controlled by checks and balances; which is the separtion of the state power among three branches or organs of the state (legislature, executive and judiciary) to avoid too much concentration of power.

• Also, each of the given branches of the state should be independent from each other to ensure the separation of powers

GENERAL PRINCIPLES OF PUBLIC LAW

• Public Interest: Public administrators or officials are authorized to use their public authority fo the good of the public interest. Sometimes private interests can be sacrificed. For instance, expropriation.

• Public Service: Certain public activities are for the good of the whole nation, such as health care, education, transportation... Therefore, rules, which usually apply to the private activities, are not applied to public activities.

• Public Sovereignty: Citizens are not entitled to set the terms of their relations with the state

• CONSTITUTIONAL LAW; organizes a state’s power among its main branch; legislative, executive and judiciary. It also determines how these branches are formed and what their functions are. In other words, constitutional law settles the type of political regime in a country.

• Constitutions have also been regarded as the means by which citizens are protected against the arbitrary rule of political authorities (first document placing limits on the power of government; Magna Carta).

• Constitutional law has two directions:

• On the one hand, constitutional law grants specific powers to the State, on the other hand, it determines what the state cannot do.

• In contrary to ordinary enacted laws (statutes), constitutions serve as the supreme legal framework to which other inferior laws are subject. In Turkey, the Constitutional Court is responsible from reviewing the constitutional validity of any legislation passed by the Parliament.

• General Principles Underlying the Turkish State under the 1982 Constitution:

a) The Rule of Law; has to do with a government providing legal security for the individual. It requires that every action taken by the government must be in a strict conformity with the law. The individual should not be regarded as a person who is only governed by the authorities.

b) Secularism; has been regarded as one of the most important notion within the political and social reform programme introduced in Turkey under the leadership of M. Kemal Atatürk.

The Turkish Constitution contains lengthy provisions regulating the matters about freedom of religion. It is also strictly prohibited in the constitution to exploit religion and religious feelings for political benefit. In addition, the Turkish constitution requires a neutral attitude towards all religious values in public adm.

c)Respect for Human Rights; is regarded as a significant principle by the Turkish constitution since Turkey voted in favour of the Universal Declaration of Human Rights (within UN) and ratified the European Convention on Human Rights.

d) Democratic State; is one of the characteristics of the Turkish Republic. Execution of “free and fair elections” on the basis of “secret ballot” and “universal suffrage” is one of the many democratic requirements listed in the Turkish Constitution. Also, legal provisions regarding the “freedom of expression” and the right to form political parties display that Turkey has a pluralistic democracy.

e) National State; represents that the state is an indivisible whole with its territory and its population. Unity and indivisibility of the administration is guaranteed by tutelage.

f) Social State; is what is commonly known as the “welfare state” in the West. It is a term that underlines social rights, social security and social justice. For instance, right to establish labor unions or syndicates, collective bargaining, medical care, education etc.

g) Judicial Review; is a key matter in the constitutional law. Under this system, access to the Constitutional Court is available either through the action for annulment or the constitutional objection. Individual application to the constitutional court is not possible in Turkey.

• Action for Annulment; means the review of a piece of legislation through an action or lawsuit brought directly before the Constitutional Court.

The President of the Republic, parlimentary groups of the party in the power and of the main opposition party, and a sum of one-fifth of the total members of the Parlimant are entitled to apply.

• The Constitutional Objection; An ordinary court, even the lowest in hierarchy, can refer to the constitutional court when it has reservations on the constitutionality of a statute (rule).

Functions of the State Under the 1982 Constitution:1- Legislature; Turkish Grand National Assembly

(TGNA) is composed of 550 members elected among citizens older than ‘30’ years of age for a period of 4 years. (See your textbook for the functions and powers of the TGNA)

In order to perform the functions of the assembly efficiently and independently, some privileges have been granted to its members; legislative irresponsibility and legislative immunity.

• Legislative irresponsibility; means that the memers of the TGNA cannot be held liable for their votes and statements or opinions they express in the assembly.

• Legislative immunity; prevents any attempt to prosecute any member of the TGNA before their immunity has been terminated by the Assembly.

2- Executive; has a dual structure in Turkey since it is composed of a President that enjoys certain ceremonial responsibilities together with very few administrative duties, and a council of ministers that is headed by the P. Minister.

The President of the Republic; shall be elected by the people either from inside or from outside the Turkish Grand National Assembly. He/She must be over forty years old and must hold a university degree (see your textbook for the duties of the President).

The nomination of a candidate for the Presidency from within the members of the Turkish Grand National Assembly or from outside of the Turkish Grand National Assembly can be possible with a written proposal (signed) by twenty members of parliament. Moreover, the political parties who surpassed ten percent can run a joint candidate.

• The Prime Minister; is in charge of appointing, directing and coordinating the council of ministers (cabinet). In Turkey, the head of the political party, which receives the highest amount of votes in the general elections, is appointed as the Prime Minister by the President.

• After his/her appointment, the prime minister is required to gain the vote of confidence for the whole cabinet in the parliament.

• Council of Ministers (Cabinet); is individually and collectively responsible to the TGNA. Implementation of all types of legislation is in the hands of the cabinet.

• Council of Ministers can be checked by the TGNA by different ways, or means;- motion of censure- questions & parliamentary inquiries- parliamentary investigations

3- Judiciary; must function impartially and freely without any pressure from any branch of the state. Legislature, Executive and their administrative officials must comply with court decisions. No debates and statements must be held in the legislative branch (assembly) in relation to the exercise of judicial power in a case under trial.

• ADMINISTRATIVE LAW; deals with the administrative machinery of the government and directs relations between the administrative authorities and individual.

• Basic Principles applied to the organization and operation of the administration are;

• Legality of the Administration• The Rule of Law• The Concept of the Social State• State Intervention in the Economic Field• Secularism• Indivisibility of the Administration• Unilateral Acts

• ADMINISTRATIVE ORG. OF TURKEY;- Central Administration; is mainly constituted by the

ministries (including the Prime-ministry) and the Presidency. Each of the ministries has a provincial department in the provinces. In addition to the given institutions, there are certain consultative branches (National Security Council) and autonomous public corporate bodies (Supreme Council of Radio and TV).

- Decentralized Administration; involves provinces, sub-provinces (counties) and districts, which represent the central adm. There are also (elected) municipalities...

• Administrative Power; to make administrative acts (decisions and activities), executory by nature, is a privilege of the administration. However, all these acts are required to be in compliance with superior laws.

• Emergency Powers of the Administration:

- State of Emergency can be declared by the council of ministers in the cases of a natural disaster, a dangerous disease, a serious economic crisis, and wide-spread violence aimed at the destruction of the constitutional order.

• Martial Law; can be declared by the Council of Ministers when there are more serious events and circumstances than those requiring the declaration of state of emergency. For instance, internal or external violence that threatens the integrity of the country. Parliament may either abolish or extend martial law for four months at a time.

• In both cases (martial law & state of emergency), individual rights and freedoms are partially or completely suspended.

CONTROL OF THE ADMINISTRATION; Political control of the administration is in the hands of the Parliament (TGNA), which can supervise the administration from the point of view of expediency and legality. The ways for this control are; motion of censure (interpellation), questions and parlimantery inquiries & investigations.

Internal Control of the Administration; occurs as a result of hierarchical nature of the administration in which every subordinate is under the supervision of his/her superior (hierarchical control).

• External Control of the Administration; is exercised by a public organization or office over another on the basis of tutelage. In other words, deeds of the local public offices have to be approved by the central administration.

• Other sources of external control of the administration are the Court of Accounts and State Supervisory Council.

• Judicial Review of the Administration; Administrative acts concluded by the President in his capacity as the Head of State, and the decisions of the Supreme Military Council are exempted from judicial review of administrative courts in Turkey.

• However, any individual or legal person can bring a case before the administrative courts against an administrative act, action, regulation or by-law.

• Action for Annulment can be requested by the individual for any administrative act on the basis of its illegality

• Full Remedy Action may be brought by a plaintiff who claims that his/her rights are violated by administrative acts and actions.

CRIMINAL LAW• Criminal law defines violations of the social order

(frimes & felonies) and prescribes punishments together with the rules governing their application.

• Theories of Punishment for Crimes;a) Expiation: The criminal pays for his/her crime and

balances his/her account with societyb) Retribution (or revenge): Punishment satisfies a

demand that justice is achieved.c) Prevention: Removal of the criminal from society to

prevent further crime.

d) Deterrence: Fear of punishment inspires respect for law and discourages violation.

e) Reformation and Rehabilitation: Reformation and improvement of the criminal leads to his/her future obedience to the law.

The Classical School; emphasized retribution and deterrance as the basis for punishment.

The Positivist School; saw crime as a result of negative surrounding factors. Crime can only be avoided by eliminating these surrounding factors, such as poverty.

CRIME:• Definition of Crime and Its Elements:A crime is an act which is against the law and is

punishable by law. It is the state that must prosecute and punish the wrongdoer.

1) The Legal Element; underlines that there can be no crime without law (nullum crimen sine lege). Also, no crime can be established ex post facto.

2) The Material Element; requires a clear act as the main part of a crime because criminal thought itself is not punishable. There should also be an “actus reus”.

3) The Moral Element; can be collected into four divisions...

a) Criminal Capacity: Those who are afflicted with a serious mental illness, and those who have not reached the age of twelve at the time of the crime shall not be prosecuted.

b) Criminal Intent; refers to a willing and conscious desire (mens rea) to commit the felony and to expect consequences. All attempts, either complete or incomplete, to commit the felony shall be punished. Lack of criminal intent can avoid punishment only for misdemeanors.

INTL205 - INTRODUCTION TO LAWc) Personal Liability; underlines that no one can be

punished for an act which is not committed by him/her.

d) Cases of Justification; no punishment can be imposed if the perpetrator has acted;

- to execute the provisions of a statute or an order given by a responsible authority,

- in immediate necessity to prevent an unjust assault against his/her own or another’s person,

- in necessity to protect himself/herself or another person against a grave danger unconsciously caused by himself/herself.

INTL205 - INTRODUCTION TO LAW• PARTICIPATION IN CRIME: A participant is one who

has taken part in a crime knowingly and willingly either before or during the comission of the act. A person who encourages and assists another to commit a felony or misdemeanor is deemed a principal and full participant.

PUNISHMENT

Nature of Punishment: Punishments must be defined by law. There can be no punishment without law (nulla poena sine lege). Prison serves two main funtions;

INTL205 - INTRODUCTION TO LAW• A place to transform the soul and behavior of the

offender.• A place to be feared and a place of work

apprenticeship.Aims of the punishment, in general, are;- to deter the particular offender from future criminal

behavior (special prevention),- To deter others who might be tempted to commit

crime (general prevention).Provocation, repetitive crime record of a person and

discretionary mitigating causes might be considered by judges during the application of punishments.

INTL205 - INTRODUCTION TO LAW• SUSPENSION OF PUNISHMENT; Conditional release (parole) is possible for crimes with

light penalties when the judge may suspend the execution of punishment, and release the offender if the court believes that such a suspension will cause the offender to abstain from committing a crime in the future.

Dismissal of Action and Setting Aside of Punishments; a) Death of the accused

b) Amnesty c) Pardon d) Relinquished complaints e) Public prosecution can be dismissed upon the lapse of the period stated in law.

• INTERNATIONAL PUBLIC LAW; can be defined as the set of rules which are binding upon the states in their relations with each other.

• Also, individuals have become increasingly recognized as subjects of international law. Especially, in the field of human-rights, international law can impose criminal responsibility on individuals. For instance, the case of Slobodan Milesovic in International Criminal Court.

• International organizations (such as; EU and UN) can also contribute to the development of international law.

• In international law, the legal procedure is quite different because there is no single supranational authority to create rules and enforce them in a systematic and continuous manner.

• Some may think that the United Nations (UN) is such an authority, but it is not.

• SOURCES OF INTERNATIONAL LAW:

Article 38(1) of the statute of the International Court of Justice defines the main sources of the international law.

• International Treaties (conventions, pacts, charters, protocols, etc...): These written agreements among states are the primary sources of the international law. They can be bilateral (two-sided) and multilateral with more than two sides, such as Vienna Convention).

• International Custom; is also very significant for the international law. It includes the long standing (existing) state practices which are existing since ‘time immemorial’. These state practices should also be accepted to be a binding law by the majority of the states (opinio juris).

• The General Principles of Law Recognized by Civilized People

• Judicial Decisions and Teachings of the Most Highly Qualified Scholars

In addition to the given sources of international law, it can also be mentioned that the decisions and judgements of International Criminal Court (2002);International Court of Justice (1945); European Court of Human Rights (1959) are other important aspects of international law.

LAW OF PERSONS• Civil law covers a vast area of relations;

-personality, -marriage & family, -property, -succession (inheritance) -obligations.

• The law of personality concerns with the legal existence of a person. It is one of the most important concepts of the civil law. Legal personality begins even before birth and the law confers rights and imposes certain duties on persons.

• The term “person” is not limited to human-beings. It also refers to legal persons.

• Legal persons are the entities created by the function of law. For instance, corporations, foundations, or unions.

• CAPACITY; is an important aspect of the law. In order to have the capacity to act, a person should have reached the age of adulthood, and he/she should fully control his/her mental capacity. For instance; capacity to enter into transactions and the capac,ty to be liable for wrongs or torts.

• All persons are entitled to equal rights in principle, but their capacities to act differs.

• Full incapacity; is the case of a person who cannot make fair judgements. Incapable persons must act through a statutory representative.

• Limited Capacity: A minor who is able to make fair judgements has limited capacity. Also, persons who have been imprisoned or put under guardianship have limited capacity, if they are able to make fair judgements. People with limited capacity may enter into transactions with the approval of their statutory representative, and they have full tortious liability, unlike people with full incapacity.

• DOMICILE: Every person has a domicile that is under constitutional protection. A person is generally sued in a court located in/around his/her domicile.

• In some cases the law determines where the domicile of a person should be. For instance, a married woman or minor children.

• NATIONALITY; is the tie that binds a person to the state. Nationality can be acquired by birth or by other reasons (i.e. Marriage).

• PROTECTION OF PERSONALITY:

A person is legally protected against any attempts which would endanger his/her freedom, health, name, reputation, and right to privacy.

Protection of Personality Against Others:

A person is safeguarded, first of all, against attacks and offenses by others.

Disclosing secrets, listening telephone calls, or improperly publishing pictures of a person are considered acts against personality.

• In the case of an attack on personality, there are two types of damage which can be compensated;

• Material damage; is compensated, if a material injury is caused as a result of a negligence.

• Immaterial (Moral) damage; can be compensated as the judge decides that an additional compensation must be paid by the perpetrating party since the attack have caused permanent and grieve effects on the person.

• INHERITENCE (SUCCESSION) LAW; regulates the monetary relationships of a person after his/her death.

• Totality of the property belonging to a person is called his/her estate. Upon the death of a person, his/her estate passes to the heirs.

• There are two types of heirs:

Statutory heirs, who are the descendants (offsprings) of the deceased person, and appointed heirs, who are designated by the deceased person in a testament (will).

LAW OF PROPERT• Property rights constitute one of the central fields of

the civil law. If somebody owns property, he/she may enjoy it by all means within the limits of law.

• The extent (scope) of the use of both movable and immovable porperties is limited by the public interest.

• The owner may demand the return of possession, if his/her property is illegally taken away. He/she may also demand compensation for breach of his/her property rights.

• If an immovable proerty is taken by the state or a public body through a compensation (paid to the owner), this process can be called as expropriation.

• Elements of possession: Physical possession (ability to control the property) and intent (consent to acquire).

• Acquisition of Ownership: Land registry is required for confirming the transfer of possession and ownership of immovable properties, and transfer of title is required for confirming the transfer of possession and ownership of movable property.

References

• B.N.M. Tripati : An Introduction to Jurisprudence (Legal Theory)• 1.https://lh5.ggpht.com/qrJarYaufqnAJVNtOb46OMVgcVXrHgLgPQoyYBtG

zqEUUgmFddHh2vQ1QO7fPiYq083P=s153• S.P. Dwivedi : Jurisprudence and Legal Theory• http://www.slideshare.net/

1 - 94