General Introduction

General Introduction

- Human beings need a social environment to live. They have always lived in communities. This is natural and necessary for survival of humankind.

- Impossible to survive in nature alone: Robinson Crusoe is fictional character. Even there...

- A poem: “No man is an island, entire of itself; everyman is a piece of continent.”

- Living in a society, no matter how primitive, (social life) requires an “order” . Order is needed to prevent chaos and anarchy.

- Thomas Hobbes: Prior to natural contractsurrender our natural freedom for order

Law is part of our life

- Because of the principle “homo homini lupus” (man is a wolf to man), a society without an order means insecurity for every individual.

- Self-helpihkak-ı hak- Law is a precondition for an order of

society.----without law or without adherence to law there can be no social order.

- Step on a busimlied contract to pay the fareBus involves in an accidentliability etc...

Legal Order

Law and adherence to law

Order

Social life

Peace

Definition of “Law” as a concept

Law can be defined as “codes of conduct” or “set of rules”.

These set of rules are for the creation of a kind of balance between interests of different individuals and society in general:

Example: Conditions of “Expropriation": public interest (strike a balance between individual interest and public interest)

In Arabic and Turkish languages the word “law” is the plural version of the concept “right”. Simply because law includes rights of persons: (“Hukuk” and “Hak”).

The Genesis of Law

Existed in the form of customeven before the advent of writing!

First written codes «Code of Hammurabi» (Babylonian empire)1760bc

– On black stone slab– Rights and duties of his people (false witness/liability issues)

Athens Solon 6th century bc (extensive laws on economy politics marriage crime punishment)

Romans450bc Twelve Tablets rules... 1088University of Bologna (first in the Western world)students

were taught Justinian’s law and canon law (Byzantine Roman emperorcodification and revision of Roman Law)

Different approaches to lawPositive/Natural Law

Positive Law:– Within a given period-------written legal rules in force are called as

“positive law”.---like “criminal code” (ceza kanunu) or “civil code”-(Medeni kanun).

– Positive law says, “what the law is”. Therefore function of a judge is mechanical----(judges speak the law, they don’t create it)

Natural Law: – Tries to show what the law should be----it has a moral

dimension: it criticizes acts which are legally correct but morally or in the sense of justice problematic.

Exp: Civil disobedience movements in USA in 1960s.– Southern states had laws of “racial segregation”– First act of civil disobedience: Rosa Parks (Black woman)----Alabama---to

sit at the back of the bus.– Legally incorrect, but morally/in the sense of justice justified

Broad Definition of Law

1. Distinction between legal rules and other (moral &religious) rules

2. Sanction and law3. Changing structure of law****************************************************************************

1- Distinction between legal rules and other rules• There are different kind of rules other than legal rules

contributing preservation of social order. Social order is not merely composed of “legal rules”: religious rules and moral rules.

• In every society there exist general moral principles: people have always made distiction between “what is right” and “what is wrong” or between “good” and bad” in human conduct.

• Some moral rules/values: To be honest; To offer your seat to pregnant Not to tell lies A husband should be faithful to his wife and vice versa...(fidelity)

• Such values and legal rules are related: There may be some overlapping rules. Moral values may be transformed into legal rules----moral duty turn into legal obligation:

Exp: to rescue a person injured in an accident is a moral duty. Also a legal duty under Turkish Criminal Code (Failure to provide this assistance would constitute a criminal offence punishable by imprisonment)

Exp: Code of Obligations (Borçlar Kanunu): “contracts which are contrary to good morals are void-they have no legal effect-their validity is not recognized”

– Exp: Contracts to bribe (rüşvet) or to testify falsely in court are void because they are contrary to good morals.

• But, an “immoral” contract is not always a criminal one: Exp: contract between A and B----A promises sexual intercourse with B

if he buys her an expensive ring! This is a consensual sexual intercourse between an unmarried adult woman and man----so it is not a crime, the only sanction is that such a contract is void and no obligation can derive from it. Neither A nor B can rely on it.

Law does not protect interests of any side because it was based on immoral contract. But there shall be no punishment.

• Sometimes there exist divergence between law and morals: Exp: Prostitution is not morally acceptable in one society but the law in

force there permits and regulates “licensed prostitution”. Exp: Homosexuality is condemned in some societies but “homosexual

conduct between adults may not be prohibited as long as there is no element of violence” or in a way disturbing the society.

What makes different the legal rules from the other rules contributing creation and maintenance of social order?

A- Legal rules are the most effective ones simply because they are “legally binding” and “compulsory” for whole the community. Moral and religious rules are not legally binding.

Exp: to wear a hat or to salute someone may have different consequences when done in the military or in the society.

• It’s not correct to underestimate the value of the moral rules. Because Law reflects the moral values of a community at a given time. In order to understand the reasons of a given legal rule within a society----you need to take into consideration the moral values of that community.

Exp: Adultery Exp: Right to marry for persons from the same gender

(Netherlands)

Different societies have different moral values and law often reflects the moral values.----attitude towards homosexuality + prostitution + suicide-----has changed dramatically over recent years and their legal rules (law) have changed to reflect these changes.

– Exp: Moral values of Europe under the jurisprudence of the European Court of Human Rights

Moreover----different societies have different religious values and law also reflects the religious values of a community.---- But if it is a secular country religious values are not reflected in its law. In mainly Catholic countries divorce is very difficult primarily because of religious values.---also abortion----Ireland-Lisbon Treaty

B- Unlike other rules-----legal rules are binding on the whole community. It applies equally to all members of the society.

C-Religious rules rest on the “will of the God”---therefore they can hardly be altered-----Law, on the other hand, is a “flexible” instrument of social order depending upon changing needs of the society----Exp: through a bill from the parliament.

2- Sanction and Law

Legal rules are enforceable by sanctions. If a person does not obey or adhere legal rules---he/she would be punished/sanctioned by the state.

There are different types of sanctions: We can enumerate some:– Punishment: like imprisonment + death penalty (capital) + other

penalties.----it has preventive nature.– Coercive Sanction: executive body enforces rules by physical

coercion---property may be confiscated and sold or someone may be arrested and may be forced to join the army.

– Compensation: In some cases----a person violating a rule and causing damage (harm) may be considered liable for this damage. And pays a sum of compensation. (Exp: Traffic accident)

– Accepting as invalid: attaching no legal consequence to it: Exp: Inappropriate marriages or contracts where there is no equality or contracts done under duress

– Annulment: Some administrative acts contrary to legal rules may be annulled by administrative courts. This is called annulment and this is a kind of sanction against the state (administration/executive) itself.

Exp: “Expropriation”:

- Public interest

- Non-discrimination

- Due notification

- Due compensation

3- Changing Nature of Law

– Legal rules are dynamic.-----technological changes and innovations that cause new rules on traffic.

Exp: Speed cameras (law of evidence)--maximum speed limits and regulations on alcohol level.

New style transportation means-----not motorbike or bicycle

Criminal lawinternet/social media new types of crime

2- What are the aims of law or aims of legal order

A stable legal order provides: a- peace within a society (by balancing

interests and precluding conflict); b- security (by preventing the destruction of

weak by the strong); c- equality; d-freedom----legal rules are called as

“prerequisite (precondition) for freedom”

Aims of Law

a- to provide justice– Justice requires more than just laws:– impartial/independent judicial system– Procedural justice is necessary for a just system– Fair trial (access to legal advice + representation + translation +defence right)– “just decisions”, “unjust but lawful, legally correct decisions”

b- to protect the rights of individuals in their private life– Marriage + divorce + bigamy + adoption of a children + protection of basic

social unit: family + foster-parents c- to protect rights of individuals in their professional life

– (rights and duties of) Employees and employers + dispute settlement procedures

d- to define the system of government– Components of a government, their functions and duties

Branches of Law

1- Public Law2- Private Law*************************************************Public Law: Public law regulates (governs) legal relationships between state and its citizens +

between different organs of state + and between one state and other.

a- Constitutional lawb- Administrative lawc- Criminal lawd- Public international lawPrivate Law: It is related with rights and duties of individuals towards each other

a- Civil lawb- Commercial lawc- Private international lawd- civil procedure

Constitutional Law

Related to the Constitution—supreme law of the land.

It determines the form of government + political structure of the state + structures and functions of legislative, executive and judicial organs of the state + basic rights and freedoms of individuals.

Administrative Law

It contains rules and principles which regulate and control the organs of state which administer the legislative provisions.

It also regulates relations between state officials and citizens + procedure in which citizens can object the official decisions (like expropriation ----property + tax issues)

It also deals with relations between different organs of government and ministries.

Criminal Law

some offenses called crime and considered to be performed/committed against the Community.

Individuals who commit these kind of acts are prosecuted and punished by a system----organized and administered by the State.---This is criminal law

investigation procedure + Detention + arrest +punishment + ways of prosecution + allocation of sentences + ways of carrying out sentences

Public International Law

“International Law” “law among nations” It regulates relations between states----It has

some sources like-inter. Treaties + customary rules + general principles of law-------territorial waters + treaties on Cyprus conflict----they are all within the domain of international law.

Private Law

It is related with rights and duties of individuals towards each other

– Exp: a rent contract for a house and move in----you promise to pay the rent---if you fail to fulfill your obligation...

– Normally private law issues are not considered to be against the society. And they are not criminal offenses

– A level of state involvement: State enacts legal rules, designed to regulate conduct between individuals + it also administers public courts to hear disputes between individuals + and execution of court decisions are also regulated by the state----private law cases are called “civil cases”.

Private law/criminal law distinction

How can we make a distinction between private law and criminal law cases? There is a criterion:

– In criminal cases-----state brings the action before the court and administers the punishment.----------In civil cases: individuals starts the action.

– Exp: If a person does not pay the rent (rent contract) and the owner of house does not complain against him/her---there is nothing to do--------required initiative is not compulsory but voluntary.

– But if a man kills the other----you don’t need an action taken by the relatives of the man murdered-----police or advocate starts the action, prepare the file on this case and brings the case before the court to be heart. This is a criminal case.

Civil Law (medeni hukuk)

Law of Persons (related with beginning and termination of personality + legal and real persons)

Family law (deals with marriage + divorce + bigamy-monogamy + adoption)

Law of Succession (regulates will of persons and their heritance)

Law of Property (acquisition of a property + loss of a property + transfer of a property)

Law of Obligations (there are three kinds of obligations: obligations arising from contract + obligations of tort origin + obligations arising from unjust enrichment)

Commercial Law

it regulates commercial activities + rights, duties and status of merchants + trade names– Exp: a t-shirt Lacostte----normally other

companies cannot use this name, if it was registered.

Private International Law

private disputes having international character----means;

– legal disputes between persons having different citizenship or;

– private disputes between persons having same nationality occurred in a foreign country.

Exp: marriage contract in Turkey between two Italian or a divorce case in Italy between a Turkish citizen and an Italian citizen

Aims at determining the “applicable law” and “competent court”.

Civil Procedure

it deals with the procedure to be followed in order to bring a lawsuit before a court-----like----to bring a case you need to supply a copy of your ID, you should apply within let say 30 days following the act committed against you.

These are procedural issues and if you don’t obey you would lose your right to bring a case or protect your interest before a court.