INTRODUCTON TO LAW- SUMMER SCHOOL NOTES

Report
SUMMER SCHOOL LECTURE
NOTES
I N T RO D U C TO N TO L AW - N OT E S
2 013 - 2 014
Dr. Özlem Döğerlioğlu Işıksungur
1
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
I- LAW&SOCIETY
WHY DO WE NEED ORDER?
3
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
SOCİETY AND ORDER
 Since with the earliest days of recorded history humans have
lived in communities
 Living in society requires order to regulate relations amongst
its members. Because:
 unregulated social life would be chaos
 without some degree of order, society can not serve its purpose
and can not provide security for its members
 order, generally speaking, is the condition in which everything is
in its right place and functioning properly
4
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
WHAT İS THE AİM OF THE “ORDER”?
5
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
AİM OF THE “ORDER”
 To regulate attitute and behaviour of individuals against other
individuals and society
 To regulate attitute and behaviour of society against
individuals
 To constitute an equilibrium between conflict of interests
6
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
SOCİETY AND ORDER CONTİNUE…
 Order,
 on the one hand gives freedom,
 on the other hand limits the freedom.
 But the most important point is to constitute an equilibrium
between individual interest and social interest
7
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
WHAT İS “ORDER” AS A LEGAL
CONCEPT?
8
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
DEFİNİTİON OF “ORDER”
 As a legal concept, order, is the body of laws, rules,
regulations and customs that apply to the relations between
the members of a certain society.
9
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
RULES REGULATİNG THE SOCİETY
 Composed of
 Legal Orders (Hukuk Kuralları)
 Moral Rules (Ahlâk Kuralları)
 Religious Rules (Din Kuralları)
 Rules of Good Manners (görgü kuralları)
10
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
LEGAL ORDER OR LAW
 Definition:
All rules and principles that regulate and limit the conduct of
individuals in a society,
Order, that is composed of legal rules and by goverment
agency
11
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
LEGAL ORDER CONTİNUE
 The most important and effective order, that regulates the
society
 Regulates attitute and behaviour in the society and
enforcement of legal rules realised through State.
12
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
LEGAL ORDER CONTİNUE
 The aim of the legal order is to ensure the social order.
 Any problem in the legal order, affects the social order.
 Legal order, briefly ensures:
 Peace
 Confidence
 Equality
 Freedom
13
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
CONCEPT OF LAW AND RİGHT
 In daily life the word of “law” is used :
 All of the legal rules that is in force in the certain country in
the certain time (positive law)
 Sometimes it is used to explain the rules in specific areas.
Example Criminal Law
 Also it is used to differentiate some cases or Courts. Example:
Civil case, civil court, criminal court.
14
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
CONCEPT OF LAW AND RİGHT
CONTİNUE…
 The word of “ right” means:
 Competence that is given by law. According to its nature it is
called private rights, fundamental rights.
 Briefly:
 Law means “rule”
 Right means competence
15
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
WHAT İS “LAW”?
16
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
DEFİNİTİON OF LAW
 Jurists still look for the definition of “law”
 Law means:
 rules that regulates society and are enforced by State
 Law- positive law& natural law
positive law: law that is in force
 Natural law: Ideal law
 Equity Law: to soften of the positive law- Example: English Law. (Our
civil Code Article:4)
Jurists decide according to positive law.

17
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
OTHER RULES REGULATİNG SOCİETY
 Moral Rules (Ahlâk kuralları)
 Religious Rules (Din Kuralları)
 Rules of Good Manners (görgü kuralları)
18
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
DİFFERENT LEGAL SYSTEMS
 Every nation has her own domestic (national) law which is
different from others
 Today, in the World there is about two hundred national
systems.
 But generally, there are four main groups.
19
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
WHAT ARE THESE MAİN LAW
SYSTEMS?
20
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
DİFFERENT LEGAL SYSTEMS
Civil Law
Common Law
Islamic Law
Socialist Law
21
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
CIVIL LAW
 Roman Law
 Roman Law was the law that was in effect through out the age of
antiquity in the City of Rome and later in the territories of Roman
Empire
 The Roman rules became written through the efforts of Emperor
Justinianus (called Corpus Iuris Civilis)
 In the eleventh century in Italy, Roman law started a “new life” in
the hands of Italien Professors of law of who taught students
coming from various parts of Europe (It should be noted that in
this process, Roman rules were amended to suit the domestic
conditions and sometimes amalgated with existing traditional
rules)
22
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
CIVIL LAW CONTİNUE…
 In this system, at the begining the purpose of law system to
regulate the affairs between citizens
 That’s why Civil Law (Medeni Hukuk) is at core of the law
system
 Other branches of law, developed under the influence of
private law
 In this system law divided two parts: Private Law & Public
Law
 Private law regulates affairs between private parties
 Public Law regulates government affairs between public bodies
and individuals
23
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
WHİCH COUNTRİES APPLY CİVİL LAW
SYSTEM? EXAMPLES?
24
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
CİVİL LAW SYSTEM COUNTRİESEXAMPLES
 Continental Europe
 Latin American Countries
 Japon
25
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
COMMON LAW
 Developed by judges (on a case by case basis)
 Principles and concepts based on “judgement of court”
 Development of “equity law”
 Imperfections of the system tolerate by legislation called
“statute law”
26
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
WHİCH COUNTRİES APPLY COMMON
LAW SYSTEM? EXAMPLES?
27
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
THE
COMMON
LAW
COUNTRİES-EXAMPLES
SYSTEM
 Comprise English-speaking world and territories
 United States (however in Lousiana and some extent Texas and
California, the “Civilian” traditions has influed the
system.Because these states were faounded by people of French
and Spanish origin.)
 England
 Australia
 New Zealand
28
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
ISLAMIC LAW
 Sources of Islamic law is
 “Quran”
 attitude and statement of prophet(called “hadith-hadis”)
 Rules compounded by Islamic Scholars
 Comparision (Kıyas)
 Applied in Islamic Countries
 Based on religious principles
 Called as “ilm-i fıkıh”
29
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
SOCIALİST LAW
 Applied in Cuba, North Korea
30
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
WHAT ABOUT TURKEY? WHİCH
LEGAL SYSTEM İS APPLİED İN
TURKEY?
31
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
TURKISH LAW SYSTEM
 In Turkey, until 1926, Islamic law applied.
 From the beginning of 1926 with adoption of Code Civil,
Turkish Law System is Civil Law system
 And Turkish Law System based on Private Law, Public Law
divison
32
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş. Hukuka Giriş 2010
MORAL LAW
MORAL ORDER(RULE)
 Also called ethics
 Definition: Principles or standarts concerning right or wrong




34
conduct
Example: to be honest, not to tell lies
Define the principles, standarts, and ideas which apply when
judging human conduct
“normative science”--- it is concerned with norms and standarts
with what ought to be
In every society there exist certain general moral principles,these
principles implies that a person’s conduct or character is in
conformity with the generally accepted standarts of goodness or
rightness
Dr.Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay, R. Introduction to Law, 2011; Gözübüyük,
Ş. Hukuka Giriş, 2010
RELATİONS BETWEEN MORAL AND
LEGAL RULES
 They are concerned with human conduct.
 Definition of law
 All rules and principles that regulate and limit the conduct of individuals
in a society
 Definition of ethics
 Principles or standarts concerning right or wrong conduct
 Some actions are both prohibited by both
 Example:
 Murder
 Theft
 Defamation (Hakaret)
35
Dr.Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay, R. Introduction to Law, 2011; Gözübüyük,
Ş. Hukuka Giriş, 2010
RELATİONS BETWEEN MORAL AND
LEGAL RULES- EXAMPLES
 EXAMPLE 1:To rescue a person injured in an accident
 Moral duty
 Legal duty- Article 98 ofTurkish Criminal Code (Türk Ceza Kanunu)
 ARTICLE 98-(1) Any person who fails to render assistance to an old, disabled or injured
person at the extent of his ability, or fails to notify the concerned authorities in time, is
punished with imprisonment up to one year or punitive fine.
 (2) In case of death of a person due to failure in rendering assistance or notification of
concerned authorities, the person responsible is sentenced to imprisonment from one year
to three years.
 MADDE 98 - (1) Yaşı, hastalığı veya yaralanması dolayısıyla ya da başka herhangi bir
nedenle kendini idare edemeyecek durumda olan kimseye hâl ve koşulların elverdiği ölçüde
yardım etmeyen ya da durumu derhâl ilgili makamlara bildirmeyen kişi, bir yıla kadar hapis
veya adlî para cezası ile cezalandırılır.
 (2) Yardım veya bildirim yükümlülüğünün yerine getirilmemesi dolayısıyla kişinin ölmesi
durumunda, bir yıldan üç yıla kadar hapis cezasına hükmolunur.
 According to above mentioned Article failure to provide such assistance would constitute a
criminal offence punishable by imprisonment (hapis cezası) or a fine (para cezası)
36
Dr.Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay, R. Introduction to Law, 2011; Gözübüyük,
Ş. Hukuka Giriş, 2010
RELATİONS BETWEEN MORAL AND
LEGAL RULES- EXAMPLES
 EXAMPLE 2: Good Faith (Dürüstlük-Objektif İyi Niyet)
 A moral principle
 Fundamental principle of law by Civil Code
 Law makes direct reference to moral
 Article 2 of the Turkish Civil Code (Türk Medeni Kanunu)
 Article 2: Every person is bound to exercise his rights and fulfill his
obligations according to the principles of good faith.
 Madde 2: Herkes haklarını kullanırken ve borçlarını yerine getirirken
dürüstlük kuralına uymak zorundadır
37
Dr.Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay, R. Introduction to Law, 2011; Gözübüyük,
Ş. Hukuka Giriş, 2010
RELATIONS BETWEEN MORAL AND
LEGAL RULES- EXAMPLES
 EXAMPLE 3: Assistance duty of family members to each other
 Moral rule
 Legal rule
 Article 364 of Civil Code
 Article 364: All persons are bound to contribute towards the
maintenance of their ascendants and descendants in the direct line as
well as of their brothers and sisters, where without such assistance
they would became destitute.
 ascendants and descendants: üstsoy ve altsoy
 Madde 364: Herkes yardım etmediği takdirde yoksulluğa düşecek
olan üstsoyu ve altsoyu ile kardeşlerine nafaka vermekle yükümlüdür.
38
Dr.Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay, R. Introduction to Law, 2011; Gözübüyük,
Ş. Hukuka Giriş, 2010
RELATIONS BETWEEN MORAL AND
LEGAL RULES- EXAMPLES
 EXAMPLE 4: Contradiction to good morals (Ahlakâ- adaba
aykırılık)
 Law refers to moral
 Article of 20 of the Code of Obligations (818)
 Article 20: “Contracts which are contrary to good morals are void.”
 Void: hükümsüz- batıl
 Madde 20: Bir akdin mevzuu gayri mümkün veya gayri muhik yahut
ahlâka (âdaba) mugayir olursa o akit bâtıldır
 This kind of contracts have no legal effect

39
Dr.Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay, R. Introduction to Law, 2011; Gözübüyük,
Ş. Hukuka Giriş, 2010
RELATİONS BETWEEN MORAL AND
LEGAL RULES- EXAMPLES
 EXAMPLE 5: Taking good care of spouse to his/her step-children




Moral duty
Legal duty
Moral duty is turned into legal obligation
Article 338 of Turkish Civil Code
“Spouses are also obliged to care and show attention to their minor stepchildren.
The other spouse helps the spouse who holds the custody of his/her own child as
appropriate, and
represents the child for his/her needs to the extent situations and conditions require.”
Madde 338: “Eşler, ergin olmayan üvey çocuklarına da özen ve ilgi göstermekle
yükümlüdürler.
Kendi çocuğu üzerinde velayeti kullanan eşe diğer eş uygun bir şekilde yardımcı olur;
durum ve koşullar zorunlu kıldığı ölçüde çocuğun ihtiyaçları için onu temsil eder.”
40
Dr.Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay, R. Introduction to Law, 2011; Gözübüyük,
Ş. Hukuka Giriş, 2010
RELATİONS BETWEEN MORAL AND
LEGAL RULES- EXAMPLES
 EXAMPLE 6: Contract to testify (şahitlik yapmak) falsely in
court
 Void in terms of moral law- contradiction to good morals
 Void in terms of law---- constitutes criminal offence (suç)
 IMPORTANT!
 An immoral contract is not always constitutes criminal offence but these
kind of contracts rendered void and unenforceable. The entire contract is
invalid
41
Dr.Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay, R. Introduction to Law, 2011; Gözübüyük,
Ş. Hukuka Giriş, 2010
RELIGIOUS RULES- RULES OF
GOOD MANNER
RELIGIOUS ORDER
 Relationship between law and religion
 In modern system- secular concept
 In ancient ages religious rules included moral and legal rules
 Interrelation- law, moralty&religion
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
RELIGIOUS ORDER
 Religion
 is belief in a divine (ilahi) or superhuman power or powers, to
be obeyed and worshipped (ibadet etmek) as a creator and ruler
of the universe
 one of the the social institutions which regulate human relations
( by establishing rules- limit and regulate relations between
people in society)
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
NATURE OF RELIGIOUS RULES
 Integration of law and religion- theocratic state
 religious rules are directly applied to wordly affairs
 Organisation of the state rests on the will of God
-In other words law expresses the will of God
 Hardly be altered(changed) (without commiting sin)- what about
dynamic nature of “law”? –depending upon the political values and
changing needs of society
 What happens legal rules have a religious nature? The needs of
society
 Industrial development-rules on industrial relations( regulation of
working hours, minimum wage, right to strike)
 New inventions- radio, television,internet
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
SEPERATION OF LAW FROM RELIGIONTURKEY EXAMPLE
 Seperation of law from religion is called “secularism”
 State religion of the Ottoman Empire was Islam- (In written
in the first written Constitution of Empire-1876-Kanuni
Esasi)
 Sultan –protector of Islam and he is called as Caliph(Halife)
 20 January 1921- the first constitution promulgated
(yürürlüğe konmak-ilan edilmek)by the National Assembly.
 20 April 1924- second Constitution, state religion is Islam
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
THE PLACE OF RELIGION IN TURKISH
LAW
 Religion as a social institution is among the areas regulated by law
 With the introduction of secularism, religion ceased to be an institution and
doctrine shaping the structure of the State and its legal system.
 Religious beliefs of citizens are basic liberties protected by law
 Article 115 of Turkish Criminal Code- Freedom of belief
 Any person who prohibits or interferes with the perfomance of the services,rites or
ceremonies of any religion shall be punished by imprisonment for one to three years(Madde 115- Cebir veya tehdit kullanarak, bir kimseyi dini, siyasi, sosyal, felsefi
inanç, düşünce ve kanaatlerini açıklamaya veya değiştirmeye zorlayan ya da
bunları açıklamaktan, yaymaktan meneden kişi, bir yıldan üç yıla kadar hapis
cezası
ile
cezalandırılır.)
 Article 341 of Turkish Civil Code
“Parents shall have the right to decide on the child's religious education.
Any agreement restricting this right of the parents shall be invalid. A major shall
be free to choose his/her religion”. (Çocuğun dini eğitimini belirleme hakkı ana
ve babaya aittir. Ana ve babayı bu konudaki sınırlayacak her türlü sözleşme
geçersizdir.Ergin dinini seçmekte özgürdür)
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
THE PLACE OF RELİGİON İN TURKİSH
LAW
 Constitution prohibits the exploitation and abuse of religion
and religious sentiments for political or personal gain
(Constitutional Court has right to ban any political party for
acts and actions against this prohibition- Law of Political
Parties)
 Exploitation- sömürü
 Sentiment- düşünce, fikir
 Office of Religious Affairs is constitutional organ of the
Turkish State- (Constitution Article 136) required to
function according to the principle of secularism
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
RULES OF GOOD MANNERS
 Table manners, formal invitation
 Embody the forms and manners established by convention as
acceptable or even required in a “polite” society
 convention: herkesçe kabul edilen uygulama
 Membership to a club, profession
 Apply mainly daily life and required conformity to accepted
standarts of proper behaviour
 Widely applicaple to relations in the society
 In principle they are not legal rules and they are not enforced by
law, BUT
 in some cases they may be part of legal system
 example: saluting a superior officer in the military
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
SANCTIONS
SANCTIONS-CONCEPT
 The measures taken by the State to make persons comply
with legal norms
 rules of conduct which are supported by sanctions applied by
the State.
 The compulsory measures taken by the State against those
who have violated legal norms
 only legal norms are supported by the state ‘s power of
sanction.
TYPES OF SANCTION
 criminal (punishment-ceza)
 civil(e.g.,compensation-tazminat)
 administrative ( e.g revocation of license- lisansın geri
alınması
 An injuction ( yürütmenin durdurulması; tedbir kararı)may also
be regarded as a sanction ( It is an order of the court restraining
a person from doing something injurious to another’s interst or
commanding something to be done for the protection of
another’s interest. The injunction is a legal remedy available in
disputes between private individuals as well as between the
private individual and public authoritiy).
TYPES OF SANCTION
 PUNISHMENT:
 The law defines certain types of violations of the social order as
crimes and provides for the punishment of the offenders by the
State.
 Fine
 Imprisonment (inflicted on a person for a crime (offense) comitted by
him/her,or for his/her failure to perform a duty prescribed by law)
TYPES OF SANCTION
 COMPENSATION(Tazminat):
REDRESS OF INJURIES
 legal wrongs: criminal and civil wrongs.
 The law redresses injures committed against persons and
property in two ways:
 criminal prosecutions (cezai kovuşturma) where the state
punishes those responsible for causing harm or loss to another
in a way forbidden by the law
 civil law actions,where the injured party brings a private suit
for damages.
 Criminal cases--- criminal court
 Civil cases---- civil court
CRIMINAL OR CIVIL CASE?
 legislative organ decides the appropriate sanction, whether
wrongdoer should be punished criminally or by making
him/her pay damages to the victim for the harm caused by
his/her strongful act.
 By same act a person commit both a criminal and civil wrong
 Example: Car accident
TYPES OF SANCTION
 NULLITY (Hükümsüzlük)
 First category: an act that is contary to a certain statory
provision is absolutely inopertative (without effect) from the
begining (kesin hükümsüz;batıl).
 Second category ,acts are not automatically inoperative from
the beginning ;they are only voidable acts (iptal edilebilir).
TYPES OF SANCTION
 NULLITY- First category:
 A legal act is absolutely null and void ab inito (from the begining)
 In such case,the parties have been unsuccesful in bringing about the desired
result because they have failed to follow some rule or to fulfil some requirement
imposed by law.
 For example , certain transactions must be made according to specific
procedures (formalities) laid down by law. If such a transaction fails to comply
with these formalities,it will be void from the begining (kesin olarak hükümsüz
,batıl). The act is regarded as “dead” from the beginning and cannot have legal
effect.
 (Marriage-ceremonial contract- authorized person .
 Failure to obey this rule has the following legal consequences:
 the man and women will not be considered to be married,
 if they have children these will be considered illegitimate (born out of
wedlock).
 If one or them dies ,the surviving partner will not have the legal right to
inherit.)
TYPES OF SANCTION
 NULLITY- Second category- Voidability
 Parties’ choice (or to one of them) to decide whether or not
they wish to nullify effect of legal act ( or legal transaction –
hukuki işlem ;hukuki muamele)
 Example :if one of the parties to an agreement has been
induced by error(hata,yanılma) or fraud(hile aldatma) or
threat (ikrah,korkutma),the aggrieved party may void such a
contract by a unilateral (tek yanlı) declaration. But,if she
chooses not to annul the act it will, remain valid and binding.
APPLICATION OF LEGAL RULES
APPLICATION OF RULES
1- Provisions of Law
2- Customary Law
3- According to the rules that he would lay down if he himself
had to act as legislator
61
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
RESOLUTION OF LEGAL CONFLICT
 Ascertaining the applicable rules
 Determining the relevant facts (olgu, vakıa)
 Application of relevant provisions of law
62
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
DETERMINING THE FACTS
 All legal cases must be based on certain facts
 The duty of bringing forward evidence of facts for the particular
case belongs to
 IN CIVIL CASES,
Plaintiff (Davacı)
Generally speaking, the Court is bound by the evidence submitted by the
parties
 IN CRIMINAL CASES
 Prosecutor
 Generally speaking, if the Court is not satisfied with the evidence
submitted, it may seek to obtain further evidence on its own initiative.


 There are different forms of evidence. Example: Testimony
(statements made by the witness in court), written materials,
material objects offered as a proof of existence of an alleged fact.
63
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
DETERMINING THE FACTS
 The facts,
 Example: 1- In DIVORCE case, the first fact which must be
proven is whether there is legal marriage or not
 2-In eviction (tahliye) case, the plaintiff must prove that he is
the owner of the property in question
64
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
METHODS IN REACHING THE
JUDGMENT(VERDICT)
The Court reaches the legal conclusion by applying the
relevant provisions of law and taking into consideration,
arguments and counter arguments made by the parties in the
light of the relevant facts and legal rules.Some methods
employed by the court in reaching their judgment are:
1- Syllogism
2- Argumentum a contrario
3- Analogy
65
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
METHODS IN REACHING THE
JUDGMENT(VERDICT)
1- Syllogism:
- Logical reasoning
- Act of thought by which from two given promises(önerme)
we proceed to a third premise.
- Example:
- Majority(Rüşt) is attained by reaching age of 18 years (legal rule)
- A has completed his eighteenth year (fact)
- A has attained majority (judgment,decision)
-
2- Argumentum a contrario:
3- Analogy:
66
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
METHODS IN REACHING THE
JUDGMENT(VERDICT)
2- Argumentum a contrario:
-an argument derived from the opposite of the meaning of a legal rule.
Example:
-According to the Article 307 of Civil Code, for adoption (evlat
edinme), (single) the adopter (evlat edinen) should be at least 30 years
old.--- General rule
-Persons under 30 cannot adopt a child (legal rule derived
through the method of argumentum a contrario)
- Mrs. A is younger than 30 years (fact)
-Mrs. A cannot adopt a child(judgment)
3- Analogy:
67
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
METHODS IN REACHING THE
JUDGMENT(VERDICT)
3- Analogy (örnekseme):
- a gap in the law is filled through the application of a rule
used in similar cases.
Example: The law concerning surnames (Soyadı Kanunu)
mentions that no repugnant or ridiculous words can be taken
as a surname.
There is no rule for the first name- there is gap
- The gap may be filled by applying the rule concerning the
surname to the first name by analogy.
68
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
BURDEN OF PROOF
BURDEN OF PROOF (ISPAT YÜKÜ)
 The facts alleged should be proven.
 Usuallly, plaintiff has to prove the facts on which the case is
based but the defendant may have a burden of proof if
he/she raises an “affirmative defense”
 Affirmative defense, when the defendant does not deny the
existence of the facts put forward by the plaintiff but asserts
new facts which refute them
70
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
BURDEN OF PROOF (ISPAT YÜKÜ)
 Example:
 A alleges that B agreed to buy A’s book for 100 TL and that
failed to pay him the money
 B does not deny the fact that he took the book from A, but
alleges that A did not sell it but gave it as a gift (affirmative
defense) and therefore denies the liability.
 If A proves his assertion B will be bound to pay 100 TL to A
 If B proves his claim, he will not have to pay to A.
71
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
BURDEN OF PROOF (ISPAT YÜKÜ)
WHO MUST PROVE FIRST?
72
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
BURDEN OF PROOF (ISPAT YÜKÜ)
 In criminal cases, all of the elements of crime with which the
defendant is charged with must be proven by the Prosecutor.
 “Everyone charged with a penal offence has the right to be
presumed innocent until proven quilty” (Constitution Art.
38/IV, Universal Declaration of Human Rights Art. 11(1))
73
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
BURDEN OF PROOF (ISPAT YÜKÜ)
 The burden proof may shift from one party to an other and
claims and counter claims may go back and forth between
parties.
 Article 6 of Civil Code
 “In the absence of a special provision to the contrary, each party
is bound to prove the existence of the facts on which he bases
his right (claim)”
 “Kanunda aksine bir hüküm bulunmadıkça, taraflardan her biri, hakkını dayandırdığı olguların
varlığını ispatla yükümlüdür.”
74
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
BURDEN OF PROOF (ISPAT YÜKÜ)
 Whoever commences the legal action has the initial burden
of proof but the burden of proof may shift from one party to
another in the course of trial
 First, the plaintiff shall prove the facts on which his case is based
 If the defendant, raises conter claim as a defence, he shall prove
the facts on which his defence is based.
75
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
BURDEN OF PROOF (ISPAT YÜKÜ)
 Sometimes it may be not easy to determine which party has
the burden of proof
 Example:
 A alleges that he donated(bağışta bulunmak) to B on condition that B pay
%5 interest on this amount to UNICEF each year
 B accepts the existence of donation, but claims that there was no
condition attached to it and therefore he did not pay any money to
UNICEF
 Both parties accept the existence of donation
 The contraversy is whether there is a condition or not
76
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
BURDEN OF PROOF (ISPAT YÜKÜ)
 Both parties accept the existence of donation
 The contraversy is whether there is a condition or not
 If the existence of condition is proven, then A will have to right to rescind
(iptal etmek) the contract
 Article 6 of Civil Code----fails to provide an answer
 In this type of situations, it is generally agreed that determination of the party
who must prove his allegations is left to the discretion of judge (yargıcın
takdir yetkisi)
 As a general rule, the burden of proof falls on the party who bases his
claim on an exceptional or unusual fact.
 The judge shall decide which claim is based on exceptional or unusual
fact. (In our example, the question is- “Is this type of donation usually free
of any conditions?” If the answer is yes than A shall prove, if the answer is
no then B shall prove that there was no condition attached to donation)
 In court practice and doctrine, Article 6 of Civil Code is understood as “he
who claims the existence of a fact which is contrary to the normal course of
events has the burden of proof.”
77
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
PRESUMPTION
PRESUMPTION
 Definition: The assumption of the truth of a fact without
direct proof
 Eg. Incompatibility (geçimsizlik) between the spouses
 Effective procedural device for shifting the burden of proof
79
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
PRESUMPTIONS (KARINELER)
 Statutory (Legal) Presumption
 Rebuttable Presumption
 Presumptions whose inaccuracy may be proven
 Irrebuttable (Conclusive)Presumption
 A fact that the law does not allow to be rebutted
80
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
STATUTORY(LEGAL) PRESUMPTIONKANUNİ KARİNE
 Eg: Presumption of Paternity
 the father of a child born in wedlock is husband
 Defendant (husband) shall rebut the presumption by proving that the
child is not his
 Eg: Entries made in public registers and duly authenticated
documents
 Article 7 of Civil Code:
 “Entries made in public registers and duly authenticated documents are
sufficient evidence of the facts which they state”
 “Resmi sicil ve senetler, belgeledikleri olguların doğruluğuna kanıt
oluşturur.”
 Thus if you base your claim on above mentioned then you are not required
to prove the accurancy of the facts mentioned in this entry, because, by
law, it is presumed that it is correct.
81
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
REBUTTABLE PRESUMPTION (ADİ
KARİNE)
 Presumptions whose inaccuracy may be proven
 Presumption of Innocence (masumiyet karinesi)
 Presumption of Good Faith
 Presumption of Ownership
 Presumption of Paternity
82
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
PRESUMPTION OF INNOCENCE
 A person accused of a crime is innocent until proved quilty
 Turkish Constitution article 38 par. 4
“No one shall be held quilty until proved quilty in a court of law”
 “Suçluluğu hükmen sabit oluncaya kadar, kimse suçlu sayılamaz.”
 Fundamental Right
 The Convention for the Protection of Human Rights and Fundamental
Freedoms of the Council of Europe says (art. 6.2): "Everyone charged
with a criminal offence shall be presumed innocent until proved guilty
according to law". This convention has been adopted by treaty and is
binding on all Council of Europe members. Currently (and in any
foreseeable expansion of the EU) every country member of the European
Union is also member to the Council of Europe, so this stands for EU
members as a matter of course. Nevertheless, this assertion is iterated
verbatim in Article 48 of the Charter of Fundamental Rights of the
European Union.

83
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
PRESUMPTION OF GOOD FAITH
 The parties when dealing with each other acted honestly and did
not engage in any deceptive acts
 Article 2 of Civil Code
 “Every person is bound to exercise his rights and fulfill his obligations
according to the principles of good faith”
 Article 3 of Civil Code
 “Bona fides is presumed whenever the existence of a legal position is
dependent on the observance of good faith.
However, no person can plead bona fides in any case where he has
failed to exercise the degree of care required by circumstances.”
 “Kanunun iyiniyete hukukî bir sonuç bağladığı durumlarda, asıl olan
iyiniyetin varlığıdır.
Ancak, durumun gereklerine göre kendisinden beklenen özeni
göstermeyen kimse iyiniyet iddiasında bulunamaz.”
84
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
PRESUMPTION OF OWNERSHIPMÜLKİYET KARİNESİ
 Civil Code Article 898
 “The person in possession of a movable property is presumed to
be its owner”
 “Taşınırın zilyeti onun maliki sayılır.”
85
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
PRESUMPTION OF PATERNITY
 Civil Code Article 302/I
 “Defendant is the father of child where it is proved that he
cohabited with the child’s mother in the period between the
three hunderedth and the one hundered and eightieth day
before its birth”
 “Davalının, çocuğun doğumundan önceki üçyüzüncü gün ile
yüzsekseninci gün arasında ana ile cinsel ilişkide bulunmuş
olması, babalığa karine sayılır.”
86
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
IRREBUTTABLE (CONCLUSİVE)
PRESUMPTİON
 Irrebuttable (Conclusive)Presumption
 A fact that the law does not allow to be rebutted
 It can not be refuted (çürütmek) by evidence
 Example:
 Article 104 of Criminal Code
 “Cebir, tehdit ve hile olmaksızın, onbeş yaşını bitirmiş olan çocukla cinsel ilişkide
bulunan kişi, şikâyet üzerine, altı aydan iki yıla kadar hapis cezası ile cezalandırılır.”
 A person who engages in sexual intercourse with a child younger than fifteen years
is guilty even if there was no violence, threat or deception involved.
 Article 1020/III of Civil Code
 “No person can allege that he has no knowledge of particular entry in the Land
Registry”
 “Kimse tapu sicilindeki bir kaydı bilmediğini ileri süremez.”
87
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
INTERPRETATION OF LEGAL RULES
INTERPRETATION OF LEGAL RULES
WHY DO WE NEED INTERPRETATION?
 Ambiguous(muğlak), uncertain or vague (kesin olmayan)legal rules
 The rules are abstract and general
 It is not possible to make rules that will cover all details of specific and concrete cases
that may arise in the future
 Realities of life are so numerous and variable that the law can only lay down general
rules for regulating a certain type of legal institution
 Intentionally leave the rest to the judge
 Task of the judge’s to determine the correct meaning of the rule in question
 When applying the abstract rule to a real case, The judge tries to find the proper and
correct meaning of the rule in the light of the facts of case involved.
89
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
INTERPRETATION OF LEGAL RULES
 The Process of discovering and ascertaining the meaning of a
written text to apply it to a real case.
 Only, the interpretation of court have legal and final effect
 Interpretation Methods:
 Textual(Literal) (grammatical)Interpretation
 Historical Interpretation
 Logical Interpretation
 Teological Interpretation
 Unrestricted Interpretation
 Interpretation in the field of International Law
90
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
INTERPRETATION OF LEGAL RULES
 Textual(Literal) (grammatical)Interpretation
 seeks only to ascertain the meanings of the words and sentences in the
applicable legal provision
 Historical Interpretation
 analysis of the history of the drafting and adopting of the law in question
 analyzes the material relating to the debates in the Parliament with yhe
purpose of ascertaining the grammatical meaning of the words as they
were understood by the members of the Parliament
 Logical Interpretation
 The law is ambiguous or
 There are two or more inconsistent provision
 The judge shall analyze the law in logical manner, correcting obvious
gramatical errors and taking into consideration the spirit of law
91
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
INTERPRETATION OF LEGAL RULES
 Teological Interpretation
 The judge shall ascertain the purpose of the law concerned by analyzing
its legislative history within the context of cultural, social and economic
values as well as the balance of the interests that existed at the time the
law was enacted
 Unrestricted Interpretation
 Without any reliance on written text
 Baed on actual event and the needs created by the conditions prevailing at
that time
92
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
INTERPRETATION IN THE FIELD OF
INTERNATIONAL LAW
 Interpretation in the field of International Law
 Literal Method
 Historical Method
 Article 31 of Vienna Convention
“ 1-A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of treaty in their context and
in the light of its objective and purpose.
2- The context for the purpose of the interpretation of a treaty shall
comprise, in addition to the text, including its preamble and
annexes………..”
 Article 32 of Vienna Convention
“
93
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
SOURCES OF LAW
SOURCES OF LAW
 The way and methods that compose of and develope the legal
rules
 Types of sources
 Written sources-Unwritten sources
 Binding- not binding sources
 Example: binding---- statutes

not binding--- doctrine
THE BİNDİNG SOURCES OF LAW
 Written Sources
 The Constitution
 Statutes (Kanunlar)
 International Treaties
 Decrees with the effect of law (KHK)
 Regulations (Tüzükler)
 By Law (Yönetmelik)
 Judicial Decisions (Mahkeme Kararları)
 Unwritten Sources
 Customary Law (may be applicable when there is no written
rule relevant to the case)
 General Principles of Law
Orders of sources
 The Constitution
 Statutes (Kanunlar)
 Regulations (Tüzükler)
 By Law (Yönetmelik)
Laws shall not be contrary to the previous rules.
Example: The statutes should not be contrary to constitution
CONSTITUTION
 Constitution
regulates, structure, organization,polity
(yönetim biçimi) of State, the relationship of the State organs
and fundamental rights and freedoms of individuals.
 Generally it is written
 Exception: England
 Rigid constitution/Flexible constitution
 Our constitution is rigid (It is hard to change)
CONSTITUTION
 Article 11 of Constitution
“The provisions of the Constitution are fundamental legal rules
binding upon legislative, executive and judicial organs, and
administrative authorities and other institutions and individuals.
Laws shall not be in conflict with Constitution.”
Laws that are in conflict with Constitution shall be annuled by
.Constitutional Court
STATUTES-CODES
 Texts that are adopted by the competent legislative authority
in conformity with the methods that is required to adopt a
statute
 It should be general, objective and permanent
 Legislative Authority:The Grand National Assembly of Turkey
 This competence only belongs to The Grand National Assembly
ofTurkey and it is untransferable.
 Subject of Statutes: The legislative body may determine the
subject of statutes freely on condition that they should be in
compatible with the Constitution.
STATUTES-CODES
 Proposing authority: Council of Ministers andThe National Grand Assembly
 Council of Ministers---bill (tasarı)
 Proposal- negotiation and analyzing in the related commission– general
assembly– adoption- Approval of President -publication
 Publication: Official Newspaper
The President may approve or send back to Assemby (except budget act)within
15 days
If Assembly adopts the same act without any amendment, Presedent shall
approve
If Assembly adopts the same act with some amendment, Present may send back
to Assembly again
 Enter into force on the date mentioned in the Act, if not mentioned 45 days
after the publication
STATUTORY SOURCES
 International Treaties
According to the Turkish Constitution, International Treaties duly put into
effect are of equal status to statutes.
 No claim of unconstitutionality of a international treaty can be heard by
the Constitutional Court (Art. 90/last par.)

 Decrees with the effect of law(Kanun Hükmünde Kararname)
 1971 amendment to 1961 Constitution
 1981 Constitution--- the application scope is expanded
 Normal state ---- necessity to competence act--- social and economical rights
and freedoms
 Emergency state--- all fundemantal rights and freedoms
 Enter into force on the date of publication in the official newspaper
REGULATIONS AND BY-LAWS
 Regulations:
 Council of Ministers– Council of State revision
 Publication in the Offical Newspaper
 For the purpose of application of Status or regulation of the
situation that the law orders
 If one subject is not regulated by statues, it is not possible to
issue regulation on that subject
 In confirmity with statute
 Enter into force on the date mentioned in the regulation, if not
mentioned 45 days after the publication
 By-Laws:
REGULATIONS AND BY-LAWS
 By-Laws:
 Public Institutions may regulate the subjects related to their
duty
 Public Institutions has competence
 For the purpose of application of statute and regulation
 in confirmity with statute
 For annulment of by laws--- Council of State
 Publication is not compulsory.
Only the ones mentioned
in the Act numbered 3011 shall be published.
JUDGE-MADE LAW(ICTIHAT HUKUKU)
 Unified decisions of supreme courts
CUSTOMARY LAW
 What is customary Law?
 Three conditions to became a legal rule
 Continuity: application for a long period
 General belief: general belief
 State Support:

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