•ISTANBUL UNIVERSITY FACULTY OF LAW

BASIC CONCEPTS OF LAW

PP Presentation for the 1. Lecture

Kutluhan Bozkurt Dr. Iur.LL.M. Eur. (Munich)

Copyright© K. Bozkurt, PP. Presentation, Istanbul University, Faculty of Law. All rights reserved.

GENERAL FRAME

Exchange of general and mutual expectations concerning our lecture

Content of the lecture Methodology General and specific aims Literature Tips for a better use of legal and/or business English

Introduction to the 1st lecture

FIRST TOPIC: LAW

STRUCTURE OF THE 1. LECTURE Vocabulary Definitions Law systems in the World

Common law –Civil Law Legal system of Turkey Sources of law Branches of law:

private –public and international law dimensions and distinctions

© Basic Concept of Law, University of Istanbul, Faculty of Law, PP presentation by K. Bozkurt

Literature for the 1st lecture

T. Ansay & D. Wallece, Introduction to Turkish law, Kluwer 2011 , K. Güven, General principles of Turkish law, Bilge 2007, K. Gözler, Hukukun Temel Kavramları, Ekin 2011, K. Gözler, Hukuk Başlangıcı, Ekin 2001, B. Sözer, Legal Environment of Business, Beta 2001, A. Güriz, Hukuk Başlangıcı, Siyasal 2009,

http://en.wikipedia.org/wiki/Positive_law http://en.wikipedia.org/wiki/Natural_law http://en.wikipedia.org/wiki/Law

Vocabulary list part 1 :

fundamental concepts of law, literary sources of law, legislation, rules of law, legal rules, order- commandment, prohibition, sanction, coercion, religious rules, moral rules, customary rules, usages, habits, custom, normativity of law, rules of social order, roman law, written sources of law,

Vocabulary list part 2:

unwritten sources, primary sources of law, auxiliary sources of law, doctrine, case law, jurisdiction, enacted law (legislation), unified decisions of supreme courts, judicial decisions, civil law, common law, religious law,

Vocabulary list part 3:

private law, public law, jurisprudence, understanding, positive law, natural law, positive law school, nature law school, human nature, moral behavior, dimension, distinction, classification of law, obligation, law of obligation,

Vocabulary list part 4:

Continental Europe, codification, lacunae, coherence, hierarchy of norms, the rule of law, ethic, constitution, constitutional law, code(s)/statute(s), statutory decrees – ordinance(s), international treaties, regulations, by-laws, braches of the law,

Vocabulary list part 5:

commercial, commercial law, administrative, administrative system and law, civil justice, military justice, administrative justice, natural person, legal person, private legal person, international law, public international law, public international private law, EU, EU-law, supranational systems, supranational law, criminal law, tax and tax law, harmonization, harmonization packages, accession negotiations.

EXPLANATIONS AND DEFINITIONS:

The law has evolved and continues to evolve from different sources which are historical and material sources: morality, behaviors, custom, religion and old laws etc.

The law is a result of historical development procedure and it covers social order rules which are norms, regulating human behaviors and societies

EXPLANATIONS AND DEFINITIONS:

The law primarily came from the need for law because people or societies began feeling the need for some kinds of rules to regulate and to organize the life in their societies.

The early ages of human being’s history in which law has not been yet issued, customs and tradition were the basic and fundamental regulations which are called the early rules or the anonym rules of law.

EXPLANATIONS AND DEFINITIONS:

• After that, written sources of law have taken the place of customs and tradition.

• The history of law has undergone much more different details and developments

• Basically the history of law may be considered to begin with organization and establishment of state because law needs legislative power or authority.

EXPLANATIONS AND DEFINITIONS:

There is an important relation between governmental system of the state and qualifications of the codes.

The law is a system of rules and regulations which are enforced via social institution to govern behavior.

EXPLANATIONS AND DEFINITONS

• The law has also different meanings in our daily life. It can be said that law is the plural form of the concept of the right.

• The law has many relations with other sciences, such as history, economy- politic, sociology, public, and international relations and etc. The law also has a meaning of jurisprudence.

LAW SYSTEMS:

• Worldwide there are different legal systems. The legal systems can be divided into the countries adapting a

civil law system and those adapting a common law system. The legal systems in the worldwide are following:

1-Civil law, 2-Common law, 3-Customary law, 4-Religious law, 5-Common and Civil law and finally 6-Unknown or others.

• see Figure 1.:

LAW SYSTEMS:(source: Guide on Intellectual Property Rights in the EU, ASO Ankara 2009)

Different Legal Systems

Common law is the legal system developed among Anglophones such as in England, the United State, Australia etc.

Civil law is the legal system developed among European in the Continental Europe’s countries.

The original difference between the common and civil law is that historically, common law was developed by custom, before there were any written laws.

Differences between civil-and common law

After that there when there were written laws, the courts continued to apply the laws of custom too. On the other hand Civil law has developed out of the Romanic –Roman law.

There are others differences between civil law and common law regarding methodological approach to codes and statutes.

Differences between civil-and common law

In civil law countries legislation is seen as the primary source of law. And courts base their judgments on the provisions of codes and statutes.

Therefore courts have to reason extensively on the basis of general rules and principles of the codes, often drawing analogies from statutory provisions to fill lacuna and to achieve coherence.

Differences between civil-and common law

By contrast, in the common law system, cases are the primary source of law, while statutes are only seen as incursions into the common law and therefore interpreted narrowly. The court will thus base their judgment on previous case law.

Codification is a common point between common and civil law. Codification is an important method for both of them.

Turkish Legal System:

It has been wholly integrated with the civil law or rather within the continental European system.

Turkish law system has been modified by incorporating elements of various European countries.

Turkish law system is a part of civil law or rather continental law system. Turkish law system is not a part of common law.

Turkish Legal System

Our commercial and civil laws and codes are based on mainly German and Swiss system.

The administrative system and law are based on French system. The ex-penal code had similarities with Italian System but the new code has similarities with Austrian counterpart.

Because of accession negotiations with the EU, Turkish law system is now under effects of EU –Law.

Turkish Legal System

• More than 12 harmonization packages have been accepted by Turkey which include codes, regulations, directives etc. and have been transposed/integrated into the Turkish system.

• In the Turkish legal system civil, administrative, constitutional and military justice are regulated separately.

SOURCES OF LAW:

The written sources are following: 1- Constitution 2- Law/act/code 3- Statutory decrees, 4- International treaties, 5- Regulations and 6- By-Laws

The unwritten sources are being formed by customs or rather customary law.

see Figure 2

SOURCES OF LAW:

The kind of sources can be divided into two groups which are basic (premier) sources and auxiliary (secondary) sources of the law.

The basic (premier) sources of law consist of two different sub-sources: Written and Unwritten sources of law.

The auxiliary (secondary) sources of law consist of two sub-sources as well: Doctrine and judicial decisions “case law”.

Figure 2 (source: K. Gözler, Hukuk Temel Kavramlari, Ekin, 2011, p.31.)

HIERARCY OF NORMS:

Hierarchy of norms is a basic principle of a law system and it is also an important element of the rule of law.

The principle of hierarchy of norms occurs in the written sources as well, which are 1-Constitution 2 law/act/code3- Statutory decrees – ordinance(s), 4-International treaties, 5-Regualtions and 6-By-Laws.

HIERARCY OF NORMS:

The structure of the principle hierarchy of norms looks like a pyramid structure and on the top of the pyramid there is the constitution and its rules

They are directly followed at second level of the pyramid by statutes/codes.

Thirdly we see statutory decrees

HIERARCY OF NORMS: Followed by the fourth degree which are the

international treaties. According to the Constitution, international treaties are valuated as domestic rules or rather as like domestic statutes/codes.

On the fifth level, there are regulations in the principle of hierarchy of norms. Regulations are important for statutes /codes.

Finally the last level in the principle hierarchy of norms belongs to by-laws.

See Figure 3.

HIERARCY OF NORMS: figure 3(source : K. Gözler, Hukukun Temel Kavramlari, Ekin 2011, p.32.)

BRANCHES OF THE LAW

One of the definitions of law, can be understood as “positive law” which is the term generally used to describe man-made laws. Positive law has created its school and its reasoning.

The opposite of positive law can be seen as natural law. So natural law is a system of the law that is purportedly determined by nature, not by manmade –laws.

BRANCHES OF THE LAW

Classically, nature law refers to the use of reason to describe and to analyze human nature and deduce binding moral rules and moral behaviors.

Natural law also has created its school and its reasoning/philosophy.

So the two important schools are positive and nature law schools.

BRANCHES OF THE LAW

Our basic term is the positive law for this lesson. The positive law is divided mainly into two groups/ branches (classification of law): Private and Public law. In addition, international law can also be added into these two branches.

Private law consists of rules which are applied to the disputes between persons (natural and private legal persons).

BRANCHES OF THE LAW

Branches and examples of the private law can be summarized as civil law, law of obligation, commercial law.

Public law regulates opposite areas of private law branches. Public law regulates the constitution, administration of state and organization of also state.

Public law organizes also relations between state and the citizens.

BRANCHES OF THE LAW Under the public law we can count organized

constitutional law, criminal law, administrative law, tax law etc.

International law is wholly different area from private and public laws.

International law consists of international rules, regulations and treaties. The areas of international law are international law, public international law, and public international private law.

BRANCHES OF THE LAW

Today in the law life we se also supranational system and its law structure, which is called supranational law: such as the EU and EU-Law.

Supranational law is a new definition and a new area.

The concept expresses high level of understanding.

In the next lecture we will go into details on this topic.

Repetition of the vocabulary 1

• fundamental concepts of law, literary sources of law, legislation, rules of law, legal rules, order- commandment, prohibition, sanction, coercion, religious rules, moral rules, customary rules, usages, habits, custom, normativity of law, rules of social order, roman law, written sources of law, unwritten sources, primary sources of law, auxiliary sources of law, doctrine, case law, jurisdiction, enacted law (legislation), unified decisions of supreme courts, judicial decisions, civil law, common law, religious law,

Repetition of the vocabulary 2

• Continental Europe, codification, lacunae, coherence, hierarchy of norms, the rule of law, ethic, constitution, constitutional law, code(s)/statute(s), statutory decrees – ordinance(s), international treaties, regulations, by-laws, braches of the law, private law, public law, jurisprudence, understanding, positive law, natural law, positive law school, nature law school, human nature, moral behavior, dimension, distinction, classification of law, obligation, law of obligation,

Repetition of the vocabulary 3

• commercial, commercial law, administrative, administrative system and law, civil justice, military justice, administrative justice, natural person, legal person, private legal person, international law, public international law, public international private law, EU, EU-law, supranational systems, supranational law, criminal law, tax and tax law, harmonization, harmonization packages, accession negotiations.

CONCLUSION

• ANY QUESTION(S)???

• YOUR COMMENTS

• THANK YOU FOR YOUR ATTENTION!!

• SEE YOU AT THE NEXT LECTURE