introduction to law yrd.doç. dr. sevda yaşar coŞkun

INTRODUCTION TO LAW

Yrd.Doç. Dr. Sevda Yaşar COŞKUN

Yd.Doç.Dr. Sevda Yaşar COŞKUN 2

WHY LAW?

• Do we need law?• Is the law only rules? • We need rules. Because we have to live

together. (“Human is a social animal” Aristotales).

• Living in a society brings up some conflicts.


WHY LAW?

• Conflict of our interests are inevitable.• This conflicts create kaos, complexity and

anarchy.• So that we need social order rules. • These rules are moral, religious, customs,

etiquette and legal rules.


WHY LAW?

• Legal rules are inspired by the rules of social order.

• Cronogically legal rules come after social order rules. WHY?

• Because a rule guides us in what we may, ought or ought not to do, it is said to be normative.


DISTINGUISHİNG LEGAL AND OTHER RULES

• All rules, whether legal, moral or just customary are normative, laying down standards of behaviour to which we ought to conform if the rule affects us.

• How do we distinguish, for example, between a legal rule and a moral rule? In our society, though we consider it immoral to tell lies, it is not generally against the law to do so.


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• Of course, some moral rules are also embodied in the law, such as the legal rule prohibiting murder.

• This does not mean,however that law and morality always correspond.

• The power of the law to uphold one kind of conduct and repudiate another is based directly on the authority of the State.


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• Social order rules are not normally enforced by the State.

• Legal norms are rendered compulsory by the State’s authority.

• A rule of social conduct becomes a legal rule, and thus in a sense “a law” , if the State is prepared to enforce obedience to this rule by resorting to force ,if necessary.


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• The measures taken by the State to make persons comply with legal norms are called “sanctions” (yaptırım- müeyyide).

• Legal norms,therefore, are those rules of are conduct which are supported by sanctions applied by the State.

• Generally a sanction is to mean what the law says will or may happen if a person fails to


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• abide by or violates a legal rule.• Word of sanction implies that non-compliance

is wrong and the wrong-doer will be penalized.

• It is important to note, however, that the concept of the sanction is not limited to punisment, but also includes rewarding compliance.


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• Among the rules of social conduct, only legal norms are supported by the State’s power of sanction.

• The sanction is either criminal(punisment-ceza), civil (e.g., compensation-tazminat), or administrative (e.g., revocation of license-ruhsatnamenin geri alınması).

• An injunction (a special kind of order issued by a court; yürütmenin durdurulması, önlem kararı)


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• Restraining a defendant from carrying out a course of conduct may also be regarded as a sanction.

• The law divides legal wrongs into two categories, namely criminal wrongs and civil wrong.

• The law redresses injuries commited against persons and property in two ways ;


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• Through criminal prosecutions , where the State punishes those responsible for causing harm or loss to another in a way forbidden by the laws.

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

• Criminal cases are dealt with one set of courts; criminal courts (ceza mahkemeleri).


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• civil cases another; civil courts(hukuk mahkemeleri).

• It is possible for a person to commit both a criminal and a civil wrong by the same act for which he or she will be punished by criminally in addition to any monetary compensation he/she ordered to pay. EXAMPLE?


APPLICATION OF LEGAL RULES

• Article 1 of the Civil Code provides that “ the law must be applied in all cases which come within the letter or the spirit of any provisions”.

• When deciding a case, the judge must ascertain which legal rules are applicableto that case.


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• Where there is no written provision applicable, the judge will decide according to existing customary law .

• The judge may not refuse to decide a case even when there is no customary rule applicable.

• In such case he/she must decide according to the rules which he/she would lay down if


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• He/she had to act as a legislator. • All legal cases must be based on certain facts.

It is the duty of plaintiff(davacı) in civil cases or the prosecution(savcı; iddia makamı) in criminal cases, to bring forward evidence of facts for that particular case.

• Evidence can be testimony, written materials, documents or material objects (tangible evidence).


THE METHODS OF REASONING EMPLOYED IN REACHING THE JUDGEMENT

• After establishing the facts, the court applies the relevant provisions of law.

• The outcome of this process is the decision (judgement ) of the court (karar; hüküm).

• The decision of the court is the legal conclusion derived from the application of the relevant provisions of law to the proven facts.



• A court decision is expected to be based on reasoning that discuses arguments and counter-arguments made by the parties in light of the relevant facts and legal rules (verdict).

• These are some of the methods employed by the courts in reaching their judgements.

A) Syllogism: as the act of thought by which from two given premises (önermeler, öncüller)



• We proceed to a third premise. • The application of legal rules involves, by and

large, a similar logical process. • A certain factual situation or occurunce(the facts

of a case; the minor premise)is subsimed under a general rule or principle of law (the major premise) and then a conclusion(judgement) is drawn concerning the applicability or non- applicability of the rule to the facts of the case.


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B) Argumentum a Contrario: an argument derived from the opposite of the meaning of a legal rule. Example is adoption.

C) Analogy : by this method a gap in the law is filled through the application of a rule used in similar cases. Example is the law concerning surnames.


BURDEN OF PROOF

• In the course of proceedings before a court, a fact is said to be proven when the court is satisfied as to its truth.

• The evidence by which this result is produced is called the proof.

• The facts of cases are alleged, put forward and if possible, proven by the parties to a case.

• Usually it is the plaintiff who has to prove the facts.


BURDEN OF PROOF

• But the defendant may have a burden of proof if he/she raises an “affirmative defense”.

• When the defendant doesn’t deny the existence of the facts put forward by the plaintiff but asserts new facts which refute them , this is called affirmative defense. E.g. Buy or donate.

• In this case, the most important questions of litigation: who must prove this first?


BURDEN OF PROOF

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

• The Prosecuter asserts the guilt of the accused and “everyone charged with a penal offence has the right to be presumed innocent until proven guilty” (Cons. Art.38/4; UDHR. Art 11; UCHR. Art. 6).


BURDEN OF PROOF

• The burden of proof may shift from one party to another and claims and counter claims may go back and forth between parties like a ping-pong ball.

• The general principle for the burden of proof is laid down in Art.6 of the 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).


BURDEN OF PROOF

• Under this general rule, it is the plaintiff who is required first to prove on which his case is based.

• The defendant is in the same position when he/she raises counter allegations as a defence.

• Sometimes this general can be failed, then discretion of the judge (takdir yetkisi) works out. Thus the judge should decide which claim is based on an exceptional or unusual fact.


PRESUMPTIONS (KARİNELER, BELİRGELER)

• A presumption is, the assumption (acceptance) of the truth of a fact without direct proof, i.e. an inference as to the existence of one fact from the known existence of some other fact or group of facts.

• Examples of presumptions:1) Statutory (Legal) Presumptions(Kanuni Karine)These presumptions are established by the law.


PRESUMPTIONS (KARİNELER, BELİRGELER

• Typical example is the husband is presumed to be the father of a child born during the marriage. İf someone to disprove this presumption then, paternity could be a problem.

• Another statutory presumption is is about entries made in public registers and of duly authenticated documents (Civil Code art. 7 )



2) Rebuttable Presumptions (Adi Karineler), presumptions whose inaccuracy may be proven are called rebuttable presumptions.

• The incorrectness of these presumptions may be proven by presenting evidence showing that the presumption is wrong.

• Examples of rebuttable presumptions established by the law.



Presumption of Innocence (Masumiyet Karinesi),• This presumption provides that a person accused of

a crime is innocent until he/she is proven guilty. This presumption is one of the international human rights principles.

Presumption of Good Faith (İyiniyet Karinesi),• This presumption in legal transactions is an

important tenet of law and is presumed whenever the existence of a right has been expressly made to depend on the observence of good faith.



• Good faith means that the parties, when dealing with each other, acted honestly and didn’t engage in any deceptive acts.

Presumption of Ownership (Mülkiyet Karinesi),• According to Art. 898 of the Civil Code “ the

person in possesion of a movable property is presumed to be its owner. Pencil for example.



Presumption of Paternity (Babalık Karinesi),• The defendant is the father of the child where

it is proved that he cohabited with the childs mother in the period between the three hundredth and one hundred and eightieth day before its birth.

3) Irrebutable (Conclusive) Presumptions ,• Is a fact that the law does not allow to be

rebutted.



• The Turkish Criminal code provides that a person who engages in sexsual intercourse with achild younger than fifteen years is guilty even if there was no violence, threat or deception involved.

• Another example of an irrebutable presumption is to be found in Civil Code, which provides “No person can allage that he has no knowledge of a particular entry in the Land Registry”.

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INTERPRETATION OF LEGAL RULES

• The correct application of legal rules presupposes the konwledge of their real sense (meaning ) and purpose.

• The judge applies the rule almost automatically when, and if, it leaves no doubt as to its meaning and purpose.

• Not all laws are straightforward and simple. In many cases the potentially applicable legal rules are ambiguous, uncertain and vague.

Yd.Doç.Dr. Sevda Yaşar COŞKUN



• There are many instances where parties representing conflicting interests attribute quite different meanings to the same provision of law.

• The judge who is confronted with such a problem has to task of determining the proper or correct meaning of the rule or rules in question.



• Why legal rules are not always sufficiently clear? Because, they are formulated in an abstract and general ways.

• This is to some extent inevitable as the legislature usually makes rules to regulate all cases falling within a certain category.

• Thus, no legislature can be expected to make rules that will cover all the details of specific and concrete cases which may arise in the future.



• Determination of the proper meaning of a legal rule is a complicated process involving a number of a techniques, the essence of which is interpretation (yorum).

• Interpretation may be defined as the mental process whereby the meaning and purpose of a legal rule is ascertained.

• On the other hand the law must be applied to all cases that come not only within its letter but also its spirit (CC. Art. 1).


METHODS OF INTERPRETATION

• We can categorise the methods of interpretation as grammatical interpratation, historical interpratation, logical interpratation,teleological interpratation and free interpretation.

• A) grammatical (textual) interpratation, seeks only to ascertain the meanings of words and sentences in the applicable legal provision.

• This method is sufficient when the meaning of words and sentences are clear enough to be directly applied by the judge.



• However it should be noted that the the textual method of interpretation will not necessarily be sufficient as the words in a text are not always clear.

• B) historical interpretation, this interpretation method is based on the understanding

revealed by analysis of the history of the drafting and adopting of the law in question.



• It therefore involves researching the period of time between the preparation of the draft and its enactment.

• C) Logical Interpretation: This metod is employed in situations where the law is ambiguous, silent or when there are two or more inconsisent provisions equally appiblicable to the same case. In such circumstances, the judge will analyze the law in logical manner, correcting obvious grammatical errors and taking into consideration the spirit of the law.



• D) Teleological Interpretation,• This metod is employed for ascertaining the

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



• E) Free or Unrestricted Interpretation,• This method, without any reliance on the

written text, interprets the law according to the actual event and the needs created by the conditions prevailing at that time.



• Interpretation in the field of International Law, is addressed in the Viena Convention on the Law of Treaties.

• In article 31 of the convention in interpreting treaties the priority is given to the literal (textual) method.


SOURCES OF LAW

• As a general rule, the first source is the written set of laws, rules or regulations and the judicial decisions.

• The Constitution• Statues• International treaties• Decrees with the effect of law• Regulations• By-Laws• Judicial Decisions


SOURCES OF LAW

• Written laws and regulations are only one, albeit important, source of law.

• On some instances, they are inadequate or entirely silent on a matter.

• If the legal issue is new, and there is no existing law, lawyers, judges and scholars must find other sources to provide guidance and answers.


SOURCES OF LAW

• This other sources include customary law and the writings of eminent legal scholars.

• Customary law is by definition unwritten law. • Customary law had particular importance in

older legal systems where traditional practices served more as the foundation of law than did written law.


SOURCES OF LAW

• In Turkish law, customary rules are of «complemantary» nature, ie.the judge may recourse to customary law if there is no written law applicable to the case (CC. Art.1).

• This provision indicates the superiority of written law over the customary rules;customary law may be applicable when there is no written rule relevant to the case at hand.


SOURCES OF LAW

• The Turkish Constitution provides that international treaties duly put into effect are of equal status to laws(statutes).

• However, no claim of unconstitutionality of an international treaty can be heard by the Constitutional Court.


LEGAL SYSTEMS OF THE WORLD

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

• Now, there are about 200 systems of domestic (national) law systems living by side by side.

• These countries may be divided into a small number of broad groups in terms of some basic characteristics of their laws : civillian and common law countries.



• Civillian countries which include continental Europe and many other Latin American countries and Turkey and Japan.

• Common law countries comprise The English speaking world and territories which, in the past where parts of the British Empire such as Australia or New Zeland and The United States.



• Common law is a system of principles and concepts based on the judgements of courts.

• Common law concepts developed by judges on a case by case basis may become “ statutory law” when the legislature chooses the regulate the matter by legislation.

• Concepts of Civillian law are based on Roman Law.



• In addition to these most common systems of law Islamic Law which is more or less applied in Islamic countries may be regarded as a third system.

• On the other hand socialist system of law continue its existence even after the collapse of Soviet union in countries like Cuba and North Korea.



• However, that in many countries one may find a mixture of two systems. Exp. Egypt.

• WHAT IS THE DIFFERENCE BETWEEN CIVILLIAN AND COMMON LAW SYSTEMS?

• Modern civil law is based on the inquisitorial method of law, modern common law is based on the adversarial method of law.

• The inquisitorial method of law seeks justice through the questioning of the wrongdoer.



• The function of the law, through the prosecuting court is to seek the truth.

• The function of all the officers of Justice is to seek the truth; not necessarily to defend the accused or to vindicate the alleged victim.

• The adversarial method of law is based on the dialectic method, that by the forceful opposition of views, evidence, arguments etc. The truth is expected to emerge at the end of these confrontations.



• In summary the role of parties in common law systems differs significantly from that of the civillian law.

• Another difference can be found in the decision-making process. Civillian law is a judge-based system.

• As direct representatives of the State Judges conduct the trial and define the scope and the extent of the inquiry, decide both the facts and the law.



• Common law relies on jury made up of laypersons. Jury is a group of lay persons selected according to law to inguire the matters of fact and to declare a verdict in the case submitted to them.

• The role of the judge in civil law systems is much more active and involved than that which is permitted in common law systems.


BRANCHES OF LAW

• In continental European Countries the commonly accepted classification rests on the tradational distinction between public law (kamu hukuku) and private law (özel hukuk).

• This classification is arrenged according to the subject-matter and the nature of the rules applied by law.

• Public law embraces those rules which regulate the relations between private individuals and the State, as well as the structure and operation of Goverment departmens.


BRANCHES OF LAW

• It determines the extent of State authority and regulates the the relationship of the various State organs with each other and with the public.

• Relationships between the State and members of the public cannot always be equal, as the State necessarily enjoys a dominant position.

• Private law regulates the relationship between private persons (both natural and legal). This can also include the State where it acts in the capacity of a private sector.


BRANCHES OF LAW

• The state may come under the regime of private law in matters such as leasing a building or purchasing supplies.

• Some other types of legal classifications are:• Domestic/national of municipal law (iç hukuk) and

international law (milletlerarası hukuk).• Substantive law (maddi hukuk) and procedural law (usul

hukuku).• Another classification of law is based on the type of

political jurisdication which promulgated that law (i.e. Federal law or State law).


PUBLİC LAW-PRİVATE LAW

• The distinction between “public” and “private“ law refers to the differente types of relationship regulated by different legal norms.

• Legal norms are classified and systematized according to the nature of relationships they are meant to govern.

• Private law as a rule deals with relationships and the resolution of conflicts among private individuals.



• Public law deals with relationships and the resolution of conflicts among individuals and the State,

• with govermental regulation of individual and corporate avtivities,

• and with the organization and limitations of State power.



• In drawing a line between the two main branches of the law focuses on the character of interest protected by the law.

• Legal rules which protected public interest are considered public law, while those protected private interest are regarded as private law.

• It is not easy to distunguish public interest from private interest in light of modern developments.


BRANCHES OF PUBLİC LAW

• Public law may be divided into five main branches ; constitutional law (anayasa hukuku), administrative law (idare hukuku),criminal law (ceza hukuku), procedural law(usul hukuku) and public international law (devletler genel hukuku).

• Constitutional Law, regulates the social relations directly connected to the exercise of State power.


CONSTITUTIONAL LAW

• It defines and delineates the structure of the State and its constitutional functions and practices.

• It is concerned with distiribution of govermental powers (legislative, executive and judicial) and the functions and responsibilities entailed in the exercise of these powers.


CONSTITUTIONAL LAW

• The task of defining and safeguarding fundemental rights and freedoms is also among the functions of constitutional law.

• Constitutional law in any modern democratic country includes varios limitations that restrict the powers of govermental branch,department or public officer (civil servant).


CONSTITUTIONAL LAW

• The constitution is the fountainhead of public law and also the juridicial foundation for legislation in other fields of law.

• The primary and most important source of Turkish constitution law is the constitution of Turkish Republic, 1982.

• Constitutions serve as the supreme legal framework to which other inferior laws are subject.


CONSTITUTIONAL LAW

• Turkish Constitution of 1961 introduced a system of judicial review of legislative acts and created a special Constitutional Court to perform this review.

• The Constitutional Court has the power to declare “null and void” any statute passed by the Parliament which is contrary to the Constitution.

• Certain basic principles(eg. secularism) have had a formative effect on Turkish law.


CONSTITUTIONAL LAW

• This principles are either directly provided for in the text or are implicit in the spirit of the countrys public law.

• Some of these principles are the rule of law, secularism, respect for human rights, democratic state, national state, social state, judicial review.

• a)The rule of law requires that every action taken by the Goverment must be in strict conformity with law.


CONSTITUTIONAL LAW

• The real implementation of the principle of the rule of law requires the existence of a democratic political system.

• Human rigths, equality, judicial review of legislative and administrative acts, and the independence of the judiciary are closely and intimately connected with the principle of the rule of law.


CONSTITUTIONAL LAW

• b)Secularism; was declared to be one of the main constitutional principles in 1937.

• In article 24 and 69 says private individuals, societies and political parties are expilicitly prohoited from exploiting religion and religious feelings for political benefit.

• Art.10 requires a neutral attitude towards all religious denominations on the part of the administration.


CONSTITUTIONAL LAW

• c) Respect for Human Rights, when the UniversalDeclaration of Human Rights was adopted by the General Assembly in 1948, Turkey was among the original members of the UN.

• The 1961 Constitution clearly declared that respect for “human rights” was among thee very basic principles on which the Constitution was based.


CONSTITUTIONAL LAW

• The 1982 Constitution introduced a slightly different understanding. It provides that the Republic is “respectful to human rights”.

d) Democratic State, is one of the Constitutional characteristics of the Turkish Republic.

• The main elements of this provision, “free elections”, “secret ballot” and the “free expression of the opinion of the people” are provided by the Turkish Constitution.


CONSTITUTIONAL LAW

• Citiziens are free to join or withdraw from political parties.

e) National State, Turkey is a unitary State. Within the boundiries of the Turkish Republic there can be no political or administrative entitiy with “reserved powers” as with federalism.

• In terms of organization and functions, the Administration is a whole.


CONSTITUTIONAL LAW

f) Social State, introduced in art. 2. ıt declares that Turkey is a ”social state” based on the principle of “national solidarity and justice”.

• Art.60 provides that everyone has the right to social security. The state is required to take the necessary measures and establish the necessary structures to provide it.

g) Judicial Review, is a system of judicial control of legislative acts. Under this system access to the


CONSTITUTIONAL LAW

• Constitutional Court is available either through the action for annulment (iptal davası) or the constitutional objection (anayasaya aykırılık itirazı).

• Actions for annulment must be initiated within 60 days following the publication of the text in question in the Official Gazette.


ADMINISTRATIVE LAW

• Administrative law is the body of law built up around administrative actions and decisions.

• Administrative laws deals primarily, with the status, powers and the activities of the administrative authorities.

• In order to carry out public service the State needs vast cadres of personnel who are called administrative agents(goverments officials or civil servants).


ADMINISTRATIVE LAW

• Civil servants have considerable discretionary authority (takdir yetkisi), for instance, the power to grant or refuse a licence.

• It is administrative law that governs the rights, duties, responsibilities and procedures regulating the appointment goverment officials.

• The State also needs the financial means necessary to carry out its functions and secures these through taxes and revenues.


ADMINISTRATIVE LAW

• Administrative law, therefore also covers the rules applicable to financial matters.

• Tax regulations are included in administrative law in its broadest sense.

• There is no single fundamental code which applies to the field of administrative law as a whole.

• Almost every statute passed has some provisions which fall within the scope of administrative law.


ADMINISTRATIVE LAW

• As a consequence of the principle of the rule of law, under which individuals are protected against illegal or arbitrary state action, all modern states have found it necessary to develop rules which enable courts to exercise supervision over administrative actions or decisions.

• The protection of private persons against abuses of power by the Administration is therefore among the main objectives of administrative law.


CONSTITUTIONAL LAW

• Turkish administrative law rests on the premise that the State can be sued for the acts and actions of its agents that infringe upon individual rights or interest.

• Turkey established an independent system of administrative courts of which the council of State (Danıştay) is the highest body.

• The administrative courts have jurisdiction over disputes between the


ADMINISTRATIVE LAW

• inividual (citizen or non-national; real or legal person) on the one hand and the administrative authorities on the other hand.

• Administrative Organization of Turkeya) Central Administration,• At the core of administrative organization in

Turkey is the Central Administration(merkezi idare), which is also calles the General Administration(genel idare).


ADMINISTRATIVE LAW

• Subsidary units of administration are created in accordance with the principle of decentralization(yerinden yönetim).

• The central administration, has both central departments as well as provincial and regional branches.

• The president of the Republic performs certain administrative functions in addition to his political role i.e signing the decrees appointing high ranking civil servants, and ratifying and promulgating international treaties.


ADMINISTRATIVE LAW

• The president of Republic is not accountable for actions connected with his duties. Prime Minister and the other ministers specifially concerned who are responsible for the decrees of the president.

• As the head of the Council Ministers, the prime ministers promotes cooperation among ministiries which are organized on functional basis i.e each ministry is responsible for a certain function throughout the country.


ADMINISTRATIVE LAW

• The ministers are public officials who supervise and discipline the administration within their own spheres.

• Each ministry is staffed by civil servants, with an undersecretary (müsteşar) in each ministry serving as the top administrative assistant to the ministers.

• Certain consultative and auxilary organs are part of the Central Administration, e.g. National Security Council and Council of State.


ADMINISTRATIVE LAW

• Certain public services like Supreme Council of Radyo and TV, Competetion Authority are beyond the direct control of Central Administration.

b) Provincial and Municipal Administration,• In terms of central administrative organization,

the country is divided into provinces (iller) based on geographical and economic factors and on the requirements of public service.


ADMINISTRATIVE LAW

• Provinces are divided into sub-provinces (ilçeler), which are further divided into districts (bucaklar).

• Municipalities (belediyeler) are legal entities responsible for organizing and providing services to meet local needs within their areas.

• the organs of the municipal administration are the Municipal Council (Belediye Meclisi), the Municipal Standing Committee (Belediye Encümeni) and the Mayor (Belediye Başkanı).


ADMINISTRATIVE LAW

• The lowest level of local administration is the village(köy) which is established in places with a population of less than 2.000.

Control of Public Administration• The Administration is under the control of

Parliement, which is in a position to supervise it from the point of view of expediency (yerindelik) as well as legality (hukuka uygunluk).


ADMINISTRATIVE LAW

• This political control is based on the principle of ministerial responsibility and operates through such means as questions (soru), interpellation (gensoru), parliamentary inquiries (meclis soruşturması).

• Every organization has a mechanism through which it is controlled internally.

• It follows from the hierarchical nature of administrative organization


ADMINISTRATIVE LAW

• that every subordinate is under the supervision of his/her superior, (hiyerarşi denetimi).

• Another type of control is external control (dış denetim), which is exercised by one public organization over another, eg. Tutelage (idari vesayet), under which certain decisions and actions of local administration have to be approved by the Central Administration.


ADMINISTRATIVE LAW

• The Court of Accounts (Sayıştay) is in charge of examing and auditing, on Parliement’s behalf all accounts of the revenues and expenditures of Goverment departments.


CRIMINAL LAW

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