Ll.b i j1 u 2 law and legislation

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

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

• 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.

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

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

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

• 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 Cassation
4- DOCTRINE: In accordance with the Civil law system,
the writings of legal authors form another source of
the Turkish law.

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

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

• 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 society
b) 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 LAW
c) 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.

• 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;

• 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.

• 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/
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