INTRODUCTON TO LAW- SUMMER SCHOOL NOTES-2013 SUMMER SCHOOL LECTURE NOTES Dr. Özlem Dö ğ erlio ğ...

INTRODUCTON TO LAW- SUMMER SCHOOL NOTES-2013 SUMMER SCHOOL LECTURE NOTES Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 1

I- LAW&SOCIETY

Why do we need order? Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 3

Society and Order Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 4 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

What is the aim of the order? Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 5

Aim of the order Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 6 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

Society and Order Continue Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 7 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

What is order as a legal concept? Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 8

Definition of order Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 9 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.

Rules regulating the society Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 10 Composed of Legal Orders (Hukuk Kurallar) Moral Rules (Ahlk Kurallar) Religious Rules (Din Kurallar) Rules of Good Manners (grg kurallar)

Legal Order or Law Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 11 Definition: All rules and principles that regulate and limit the conduct of individuals in a society, Order, that is composed of legal rules and by goverment agency

Legal Order Continue Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 12 The most important and effective order, that regulates the society Regulates attitute and behaviour in the society and enforcement of legal rules realised through State.

Legal Order Continue Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 13 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

Concept of Law and Right Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 14 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.

Concept of Law and Right Continue Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 15 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

What is law? Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 16

Definition of Law Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 17 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.

Other Rules Regulating Society Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 18 Moral Rules (Ahlk kurallar) Religious Rules (Din Kurallar) Rules of Good Manners (grg kurallar)

Different Legal Systems Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 19 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.

What are these main law systems? Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 20

Different Legal Systems Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 21 Civil Law Common Law Islamic Law Socialist Law

Civil Law Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 22 Roman Law Roman Law was the law that was in effect through out the age of antiquity in the City of Rome and later in the territories of Roman Empire The Roman rules became written through the efforts of Emperor Justinianus (called Corpus Iuris Civilis) In the eleventh century in Italy, Roman law started a new life in the hands of Italien Professors of law of who taught students coming from various parts of Europe (It should be noted that in this process, Roman rules were amended to suit the domestic conditions and sometimes amalgated with existing traditional rules)

Civil Law Continue Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 23 In this system, at the begining the purpose of law system to regulate the affairs between citizens Thats 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

Which countries apply Civil Law System? Examples? Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 24

Civil Law System Countries-Examples Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 25 Continental Europe Latin American Countries Japon

Common Law Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 26 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

Which countries apply Common Law System? Examples? Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 27

The Common Law System Countries- Examples Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 28 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

Islamic Law Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 29 Sources of Islamic law is Quran attitude and statement of prophet(called hadith-hadis) Rules compounded by Islamic Scholars Comparision (Kyas) Applied in Islamic Countries Based on religious principles Called as ilm-i fkh

Socialist Law Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 30 Applied in Cuba, North Korea

What about Turkey? Which legal System is applied in Turkey? Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 31

Turkish Law System Dr. zlem D erlio lu I ksungur Source: Aybay,R. Introduction to Law 2011; Gzbyk, . Hukuka Giri 2010 32 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

Moral Law

Moral order(rule) Also called ethics Definition: Principles or standarts concerning right or wrong conduct Example: to be honest, not to tell lies Define the principles, standarts, and ideas which apply when judging human conduct 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 persons conduct or character is in conformity with the generally accepted standarts of goodness or rightness Dr.zlem D erlio lu I IKSUNGUR Source: Aybay, R. Introduction to Law, 2011; Gzbyk, . Hukuka Giri , 2010 34

Relations 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) Dr.zlem D erlio lu I IKSUNGUR Source: Aybay, R. Introduction to Law, 2011; Gzbyk, . Hukuka Giri , 2010 35

Relations Between Moral and Legal Rules- examples EXAMPLE 1: To rescue a person injured in an accident Moral duty Legal duty- Article 98 of Turkish Criminal Code (Trk 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) Ya , hastal veya yaralanmas dolaysyla ya da ba ka herhangi bir nedenle kendini idare edemeyecek durumda olan kimseye hl ve ko ullarn elverdi i lde yardm etmeyen ya da durumu derhl ilgili makamlara bildirmeyen ki i, bir yla kadar hapis veya adl para cezas ile cezalandrlr. (2) Yardm veya bildirim ykmll nn yerine getirilmemesi dolaysyla ki inin lmesi durumunda, bir yldan yla kadar hapis cezasna hkmolunur. According to above mentioned Article failure to provide such assistance would constitute a criminal offence punishable by imprisonment (hapis cezas) or a fine (para cezas) Dr.zlem D erlio lu I IKSUNGUR Source: Aybay, R. Introduction to Law, 2011; Gzbyk, . Hukuka Giri , 2010 36

Relations Between Moral and Legal Rules- examples EXAMPLE 2: Good Faith (Drstlk-Objektif yi Niyet) A moral principle Fundamental principle of law by Civil Code Law makes direct reference to moral Article 2 of the Turkish Civil Code (Trk 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 haklarn kullanrken ve borlarn yerine getirirken drstlk kuralna uymak zorundadr Dr.zlem D erlio lu I IKSUNGUR Source: Aybay, R. Introduction to Law, 2011; Gzbyk, . Hukuka Giri , 2010 37

RelATIONS BETWEEN MORAL AND LEGAL RULES- examples Requires that every person act truthfully in his/her relations with others Every person is expected to act reasonable, honest human being bound by moral principles when exercising his/her rights and performing his/her duties Fulfill = perform Obligations= duty Dr.zlem D erlio lu I IKSUNGUR Source: Aybay, R. Introduction to Law, 2011; Gzbyk, . Hukuka Giri , 2010 38

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: stsoy ve altsoy Madde 364: Herkes yardm etmedi i takdirde yoksullu a d ecek olan stsoyu ve altsoyu ile karde lerine nafaka vermekle ykmldr. Dr.zlem D erlio lu I IKSUNGUR Source: Aybay, R. Introduction to Law, 2011; Gzbyk, . Hukuka Giri , 2010 39

RelATIONS BETWEEN MORAL AND LEGAL RULES- examples EXAMPLE 4: Contradiction to good morals (Ahlak- adaba aykrlk) 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: hkmsz- batl Madde 20: Bir akdin mevzuu gayri mmkn veya gayri muhik yahut ahlka (daba) mugayir olursa o akit btldr This kind of contracts have no legal effect Dr.zlem D erlio lu I IKSUNGUR Source: Aybay, R. Introduction to Law, 2011; Gzbyk, . Hukuka Giri , 2010 40

Relations 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: E ler, ergin olmayan vey ocuklarna da zen ve ilgi gstermekle ykmldrler. Kendi ocu u zerinde velayeti kullanan e e di er e uygun bir ekilde yardmc olur; durum ve ko ullar zorunlu kld lde ocu un ihtiyalar iin onu temsil eder. Dr.zlem D erlio lu I IKSUNGUR Source: Aybay, R. Introduction to Law, 2011; Gzbyk, . Hukuka Giri , 2010 41

Relations Between Moral and Legal Rules- examples EXAMPLE 6: Contract to testify ( ahitlik yapmak) falsely in court Void in terms of moral law- contradiction to good morals Void in terms of law---- constitutes criminal offence (su) IMPORTANT! An immoral contract is not always constitutes criminal offence but these kind of contracts rendered void and unenforceable. The entire contract is in valid (promise to pay- legal but the entire contract is invalid) Dr.zlem D erlio lu I IKSUNGUR Source: Aybay, R. Introduction to Law, 2011; Gzbyk, . Hukuka Giri , 2010 42

Relations Between Moral and Legal Rules- Important! If the contracts objective is to achieve an immoral purpose it will be considered void under the law Dr.zlem D erlio lu I IKSUNGUR Source: Aybay, R. Introduction to Law, 2011; Gzbyk, . Hukuka Giri , 2010 43

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. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 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. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 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 Religion controls the law- Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 2010

SEPERATION OF LAW FROM RELIGION- TURKEY EXAMPLE Seperation of law from religion is called secularism State religion of the Ottoman Empire was Islam- (In written in the first written Constitution of Empire-1876-Kanuni Esasi) Sultan protector of Islam and he is called as Caliph(Halife) 20 January 1921- the first constitution promulgated (yrrl e konmak-ilan edilmek)by the National Assembly. 20 April 1924- second Constitution, state religion is Islam Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 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 inan, d nce ve kanaatlerini aklamaya veya de i tirmeye zorlayan ya da bunlar aklamaktan, yaymaktan meneden ki i, bir yldan yla kadar hapis cezas ile cezalandrlr.) 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. (ocu un dini e itimini belirleme hakk ana ve babaya aittir. Ana ve babay bu konudaki snrlayacak her trl szle me geersizdir.Ergin dinini semekte zgrdr) Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 2010

The place of relIGION IN TURKISH 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- smr Sentiment- d nce, 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. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 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: herkese 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. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 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- lisansn geri alnmas An injuction ( yrtmenin durdurulmas; tedbir karar)may also be regarded as a sanction ( It is an order of the court restraining a person from doing something injurious to anothers interst or commanding something to be done for the protection of anothers 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 kovu turma) 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 (Hkmszlk) First category: an act that is contary to a certain statory provision is absolutely inopertative (without effect) from the begining (kesin hkmsz;batl). 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 hkmsz,batl). 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 i lem ;hukuki muamele) Example :if one of the parties to an agreement has been induced by error(hata,yanlma) or fraud(hile aldatma) or threat (ikrah,korkutma),the aggrieved party may void such a contract by a unilateral (tek yanl) 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 63 Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 2010

resolutION OF LEGAL CONFLICT Ascertaining the applicable rules Determining the relevant facts (olgu, vaka) Application of relevant provisions of law 64 Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 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 (Davac) 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. 65 Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 2010

determINING THE FACTS The facts, Example: 1- In DIVORCE case, the first fact which must be proven is that there is legal marriage 2-In eviction (tahliye) case, the plaintiff must prove that he is the owner of the property in question 66 Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 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 67 Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 2010

METHODS IN REACHING THE JUDGMENT(verdICT) 1- Syllogism: -Logical reasoning - Act of thought by which from two given promises(nerme) we proceed to a third premise. - Example: - Majority(R t) 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: 68 Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 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: 69 Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 2010

METHODS IN REACHING THE JUDGMENT(verdICT) 3- Analogy (rnekseme): - a gap in the law is filled through the application of a rule used in similar cases. Example: The law concerning surnames (Soyad 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. 70 Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 2010

BURDEN OF PROOF

BURDEN OF PROOF (ISPAT YK) 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 72 Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 2010

BURDEN OF PROOF (ISPAT YK) Example: A alleges that B agreed to buy As 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. 73 Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 2010

BURDEN OF PROOF (ISPAT YK) WHO MUST PROVE F RST? 74 Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 2010

BURDEN OF PROOF (ISPAT YK) 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)) 75 Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 2010

BURDEN OF PROOF (ISPAT YK) 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 hkm bulunmadka, taraflardan her biri, hakkn dayandrd olgularn varl n ispatla ykmldr. 76 Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 2010

BURDEN OF PROOF (ISPAT YK) 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. 77 Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 2010

BURDEN OF PROOF (ISPAT YK) Sometimes it may be not easy to determine which party has the burden of proof Example: A alleges that he donated(ba ta 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 78 Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 2010

BURDEN OF PROOF (ISPAT YK) 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 (yargcn 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. 79 Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 2010

PRESUMPTION

presumptION Definition: The assumption of the truth of a fact without direct proof Eg. Incompatibility (geimsizlik) between the spouses Effective procedural device for shifting the burden of proof Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 2010 81

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 82 Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 2010

STATUtory(legal) presumptION- KANUN KARNE 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 olgularn do rulu una kant olu turur. 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. Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 2010 83

Rebuttable presumptION (AD KARNE) Presumptions whose inaccuracy may be proven Presumption of Innocence (masumiyet karinesi) Presumption of Good Faith Presumption of Ownership Presumption of Paternity Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 2010 84

PresumptION OF INNOCENCE A person accused of a crime is innocent until proved quilty 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 Sululu u hkmen sabit oluncaya kadar, kimse sulu saylamaz. 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.Convention for the Protection of Human Rights and Fundamental FreedomsCouncil of EuropetreatyEuropean UnionCharter of Fundamental Rights of the European Union Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 2010 85

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 hukuk bir sonu ba lad durumlarda, asl olan iyiniyetin varl dr. Ancak, durumun gereklerine gre kendisinden beklenen zeni gstermeyen kimse iyiniyet iddiasnda bulunamaz. Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 2010 86

PresumptION OF OWNERSHIP- MLKYET KARNES Civil Code Article 898 The person in possession of a movable property is presumed to be its owner Ta nrn zilyeti onun maliki saylr. Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 2010 87

PresumPtION OF PATERNITY Civil Code Article 302/I Defendant is the father of child where it is proved that he cohabited with the childs mother in the period between the three hunderedth and the one hundered and eightieth day before its birth Davalnn, ocu un do umundan nceki yznc gn ile yzsekseninci gn arasnda ana ile cinsel ili kide bulunmu olmas, babal a karine saylr. Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 2010 88

Irrebuttable (Conclusive) Presumption A fact that the law does not allow to be rebutted It can not be refuted (rtmek) by evidence Example: Article 104 of Criminal Code Cebir, tehdit ve hile olmakszn, onbe ya n bitirmi olan ocukla cinsel ili kide bulunan ki i, ikyet zerine, alt aydan iki yla kadar hapis cezas ile cezalandrlr. 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 kayd bilmedi ini ileri sremez. Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 2010 89

INTERPRETATION OF LEGAL RULES

INTERPRETATION OF LEGAL RULES Why Do WE NEED INTERPRETATION? Ambiguous(mu lak), 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 judges 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. 91 Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 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 Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 2010 92

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 Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 2010 93

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 Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 2010 94

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 Dr. zlem D erlio lu I IKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gzbyk, .Hukuka Giri 2010 95

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 Binding Sources of Law Written Sources The Constitution Statutes (Kanunlar) International Treaties Decrees with the effect of law (KHK) Regulations (Tzkler) By Law (Ynetmelik) 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 (Tzkler) By Law (Ynetmelik) Laws shall not be contrary to the previous rules. Example: The statutes should not be contrary to constitution

CONSTITUTION Constitution regulates, structure, organization,polity (ynetim biimi) 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) Written proposal from 1/3 of whole number of the members in the Grand Assembly Acceptance of the written proposal by 3/5 of whole number of the members in the Grand Assembly (secret vote) Presedent may send the statutes concerning constitutional amendment to the Grand Assembly (Grand Assembly may adopt at least 2/3 of members) The Presedent may submit this amendment to the referendum (to submit to the referendum rule came into force with 1982 Constitution). But If Presedent send the Constitutional amendment that is accepted with less than 2/3 to the Grand Assembly, submission to the referendum is mandatory For adoption of amendment, in the referendum more than of eligible votes is necessary.

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 of Turkey and it is untransferable. Subject of Statutes: The legislative body may determine the subject of statutes freely on condition that they should be in compatible with the Constitution.

STATUTES-CODES Proposing authority: Council of Ministers and The National Grand Assembly Council of Ministers---bill (tasar) 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 Hkmnde 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.

CUSTOMARY LAW Three conditions to became a legal rule Continuity: application for a long period General belief: general belief State Support:

JUDGE-MADE LAW(ICTIHAT HUKUKU) Unified decisions of supreme courts DOCTRINE

PUBLICATIONS WHERE WRITTEN SOURCES TAKE PLACE Official Gazette Codes of Laws (dsturlar) Complete Collection of codes being in force( yrrlkteki kanunlar klliyat) Record Review(tutanak dergisi) Codes Review(Kanunlar Dergisi) Resmi Dergiler(Official Periodicals) Private Publications(zel Yaynlar)

WRITTEN LAW RULES WITH RESPECT TO APPLICATION Binding Law Complementary Law Interpretative Law (Yorumlayc) Definitive Law (Tanmlayc) Authoritative Law(Yetki verici)

BRANCHES OF LAW

Continental Europe, classification according to the subject matter and the nature of rules applied by law Public Law Regulates relations between private individuals and the State Ascertains the extent of State authority and regulates the relationship of the various State organs with each other and with public Private Law Regulates relationship between private person

Some other types of classIFICATION Domestic Law-International Law Domestic Law: Body of rules, regulations that organize and dictate the internal affairs of a State Example: Turkish law, French law Subdivision :Public Law-Private Law International Law: Law which regulates and organizes legal relations between and amongst states. Subdivision :Public Law-Private Law

Some other types of classIFICATION Substantive Law (Maddi hukuk)- Procedural Law(Usul Hukuku) Substantive Law: The body of legal rules that create,grant, recognize and determine rights and impose obligations and duties Example: rules of civil law Procedural Law: The legal rules which provide the method for the enforcement of rights and for the prosecution and punishment of violations of criminal provisions Example: Law of Civil Procedure(Medeni Usul K.) Law of Criminal Procedure (Ceza Usul K.)

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