BASIC CONCEPTS OF LAW /

TEMEL HUKUK(İNGİLİZCE)

Ankara Medipol University

2022-2023 Academic Year
Fall Semester

International Trade and Finance / Uluslararası Ticaret ve Finansman (İngilizce)

Political Sciences and International Relations / Siyaset Bilimi ve Uluslararası İlişkiler (İngilizce)

Instructor: Assist. Prof. Derya Yakupoğlu

 RECOMMENDED BOOKS

• Rona Aybay, An Introduction to Law, 2022, 14. Edition, Der Yayınları (the most recommended)
• Tuğrul Ansay/ Don Wallace, Jr/Işık Önay (Ed.), Introduction to Turkish Law, 2020, 7. Edition, Seçkin Yayıncılık
• Şebnem Akipek/ Tuğçe Oral, Introduction to Turkish Civil Law and Law of Persons, 2022, Yetkin Yayınları
• Kudret Güven, General Principles of Turkish Law, 2020, 5. Edition, Savaş Yayınevi
• Aydın Aybay/Rona Aybay/Ali Pehlivan, Hukuka Giriş, 2021, Der Yayınları
• Şeref Gözübüyük, Hukuka Giriş ve Hukukun Temel Kavramları, 2020, 40. Baskı, Turhan Kitabevi
• Adnan Güriz, Hukuk Başlangıcı, 2019, 19. Baskı, Siyasal Kitabevi
• Kemal Gözler, Hukukun Temel Kavramları, 2021, 19. Baskı, Ekin Basım Yayın
• Kemal Gözler, Hukuka Giriş, 2021, 18. Baskı, Ekin Basım Yayın
• Kemal Gözler, Genel Hukuk Bilgisi, 2022, 21. Baskı, Ekin Basım Yayın
• Muhammet Özekes, Temel Hukuk Bilgisi, 2021, 11. Baskı, On İki Levha Yayıncılık
• Şebnem Akipek Öcal/ Süleyman Yılmaz, Uygulamalı Hukuka Giriş, 2013, Yetkin Yayınları
• Halil Kalabalık, Temel Hukuk Bilgisi, 2022, 12. Baskı, Seçkin Yayıncılık
 REFERENCES

• The reference books of these slides:

• Rona Aybay, An Introduction to Law, 2022, 14. Edition, Der Yayınları (the main reference)
• Şebnem Akipek/ Tuğçe Oral, Introduction to Turkish Civil Law and Law of Persons, 2022, Yetkin Yayınları
 PLAN

• Law and Other Rules of Social Conduct / Hukuk Kuralları ve Diğer Toplumsal Düzen Kuralları
• Characteristics of Legal Rules / Hukuk Kurallarının Özellikleri
• Legal Systems, Sources of Law / Hukuk Sistemleri, Hukukun Kaynakları
• Application of Legal Rules / Hukukun Uygulanması
• Interpretation of Legal Rules / Hukuk Kurallarının Yorumlanması
• The Separation of Private Law - Public Law / Özel Hukuk-Kamu Hukuku Ayrımı
• The Branches of Law / Hukukun Dalları
• The Branches and Basic Concepts of Private Law / Özel Hukukun Dalları ve Temel Kavramları
• The Branches and Basic Concepts of Public Law / Kamu Hukukunun Dalları ve Temel Kavramları
• Turkish Judicial System / Türk Yargı Sistemi
 LAW AND OTHER RULES OF SOCIAL CONDUCT

Legal Order

Requires Religious Order

Living in ORDER to
society regulate
relations among Moral Order
its members

Rules of good
manners

Customs
 RELATIONS BETWEEN MORAL AND LEGAL RULES

Moral Order

 Principles or standards concerning right or wrong conduct, which is also called ethics.
 The accepted, desirable or idealistic standards of human conduct.
 Public morality and private morality may be in conflict.
 There are many legal rules, that are derived from morality, such as murder or theft.
 In some cases, a legal rule makes a reference to morals.
 Some examples:
 Turkish Civil Code Art. 2
 Turkish Civil Code Art. 364
 Turkish Code of Obligation Art. 27
 Turkish Civil Code Art. 578
 RELATIONS BETWEEN MORAL AND LEGAL RULES

• Turkish Civil Code Art. 2 Acting in Good Faith / Dürüst Davranma

Everyone must act in good faith in the exercise of his or her rights and in the performance of
his or her obligations. / Herkes, haklarını kullanırken ve borçlarını yerine getirirken dürüstlük
kurallarına uymak zorundadır.

• Turkish Civil Code Art. 364 Alimony obligators / Nafaka yükümlüleri

Everyone shall be obliged to pay alimony to one’s ascendants, descendants and siblings who
may be driven to poverty without help. / Herkes, yardım etmediği takdirde yoksulluğa düşecek
olan üstsoyu ve altsoyu ile kardeşlerine nafaka vermekle yükümlüdür.
 RELATIONS BETWEEN MORAL AND LEGAL RULES

• According to Turkish Code of Obligation Art. 27, contracts which are contrary to the mandatory
provisions of the law, morality, public order, personality rights or whose subject is impossible are
absolutely null and void. / Kanunun emredici hükümlerine, ahlaka, kamu düzenine, kişilik haklarına aykırı
veya konusu imkansız olan sözleşmeler kesin olarak hükümsüzdür.
• Another example: According to Turkish Civil Code Art. 578, a person who has killed or attempted to kill
the deceased is disinherited by law. / Mirasbırakanı kasten ve hukuka aykırı olarak öldüren veya öldürmeye
teşebbüs edenler mirasçı olamayacakları gibi, ölüme bağlı tasarrufla herhangi bir hak da edinemez.
 LAW AND OTHER RULES OF SOCIAL CONDUCT

Religious Order

 The relations between law and religion have evolved through different phases in the history.
 In ancient times, the law was integrated into religion, leading to a theocratic system, where religious rules
are directly applied to worldly affairs.
 Law is a flexible instrument of social order, however religious rules in principle can hardly be changed.
 Legal rules can be adapted in accordance with the changing social relations and technological
developments.
 In modern times, most western countries have accepted the principle of secularism (laiklik).
 According to the principle of secularism, the law and religion is separate from each other.
 Secularization of Turkish Law
 Turkish law is also based on the principle of secularism, which is regarded as one of the
fundamental characteristics of the Turkish Republic ( Turkish Constitution Art. 2, Art. 4)
 Turkish Constitution Art. 24- Freedom of conscience, religion and opinion
 Also, Turkish Criminal Code Art. 115 protects freedom of belief.
 LAW AND OTHER RULES OF SOCIAL CONDUCT

Rules of good manners (Courtesy)

 In every society there are socially acceptable ways of behaving in public.

 These rules are widely accepted and applicable but have minor significance. For example,
table manners.
 In principle, the rules of good manners are not legal rules. But in some cases, they can be
included in legal rules, as an example, not disturbing neighbours.
 Some diplomatic protocol rules, governing diplomatic manners and courtesy, are
regarded as rules of Public International Law.
 These rules do not have binding force technically, but are important for the
diplomatic relations and mutual respect between states.
 Turkish Constitution Art. 92 refers to the rules of international courtesy
 LAW AND OTHER RULES OF SOCIAL CONDUCT

Customs

 In ancient times customary observances played a significant role in regulating social life and
were accepted as an important source of law.
 Customs are generally and strictly observed ways of conduct for a long period of time.
 With the evolution of primitive societies, the importance of customs as a source of law has
dramatically decreased.
 In modern law systems, customs may have a legal validity under some conditions.
 If and when the law recognizes some customs as a part of law, then it is accepted as unwritten
source of law and called customary law. Conditions to be accepted as customary law:
 Antiquity
 Continuity
 Recognized as being obligatory and binding by the general public
 State Sanction
 Not opposed to the written law and general principles of the law system
 LEGAL ORDER

 The purpose of law is justice

 The concept of justice

 Distributive justice
 Corrective justice

 In modern legal systems slavery is prohibited and equality is provided,

irrespective of gender, ethnic origin, race, religion, possessions, etc.
 LEGAL ORDER
 The jurisprudential views regarding the nature of law:
 Legal Positivism (positive law/enacted law)
 Natural Law Theory (natural law)
 Legal Positivism
 A view of law from a perspective of a positive science.
 Law is considered on an objective and empirical basis.
 The question is not what the law ought to be, but rather what the law in force is.
 The function of a judge is simply to apply the enacted law (mechanical function).
 Natural Law Theory
 defines the law not as it is, but how it ought to be.
 has a moral point of view, a sense of justice.
 According to this theory, if enacted legal rules conflict with natural law, the conflict should be
solved according to natural law.
 CHARACTERISTICS OF LEGAL RULES

These are the characteristics which distinguish legal rules from other rules of social conduct.

When they are

violated, the Compliance with the
Legal rules are mandatory. necessary moral rules, religious
measures are rules, rules of good
taken by the
manners and customs
State
(not customary law) is
Legal rules are a matter of choice.
enforced by the Violation of these
State rules causes to be
condemned in society
or a matter of
conscience.
 CHARACTERISTICS OF LEGAL RULES

The measures
Legal rules are mandatory. taken by the State
to make people
comply with legal
rules are called
sanctions
(yaptırım).

Legal rules are

enforced by the
State
State’s power of
sanction

If a person violates a legal rule, the State applies sanctions to this non-compliance.
 CHARACTERISTICS OF LEGAL RULES

Types of
Sanctions

Criminal Sanctions Administrative Sanctions

Civil Sanctions
 TYPES OF SANCTIONS

Criminal Sanctions

Punishments Security Measures (Güvenlik

Tedbirleri)
These are the measures prescribed
Fine Imprisonment (Hapis against dangerous behaviours for
(Adli Para Cezası) Cezası) the society with the aim of
A penalty that requires the rehabilitation.
The restraint of a person’s
convicted person to pay a sum liberty.
of money after an offence has
been committed.

Criminal sanctions are imposed on those, who commit crimes. Crimes are the acts, which are
specified as crimes in codes. Crimes and punishments must be clearly stated in codes (The Principle
of Legality of Crimes and Punishments)
 TYPES OF SANCTIONS - CRIMINAL SANCTIONS
The Principle of Legality of Crimes and Punishments in Turkish Law (Suçların ve cezaların kanuniliği ilkesi): If an act is not
determined as a crime by the legislative organ, then there is no crime and no punishment. In such a case, a person cannot be held
criminally responsible for this action and cannot be punished.

Turkish Constitution Art. 38- No one may be punished for any act which does not constitute a criminal offence under the
codes (statutes) in force at the time committed; no one may be given a heavier penalty for an offence other than the penalty
applicable at the time when the offence was committed. (…) Penalties and security measures in lieu of penalties, shall be
prescribed only by codes. /Anayasa Madde 38 – Kimse, işlendiği zaman yürürlükte bulunan kanunun suç saymadığı bir
fiilden dolayı cezalandırılamaz; kimseye suçu işlediği zaman kanunda o suç için konulmuş olan cezadan daha ağır bir ceza
verilemez. (…) Ceza ve ceza yerine geçen güvenlik tedbirleri ancak kanunla konulur.

Turkish Criminal Code, The Principle of Legality of Crime and Punishment- Art. 2 (1) Nobody may be subject to penalty
or security measure for an act which is not clearly prescribed by codes as a criminal offence. A penalty or security measure
shall not be imposed if it is not prescribed by codes. (2) No criminal punishment may be imposed based on regulatory
transactions of the administration. (3) In the application of the codes containing criminal offences and penalties, the use of
analogy shall not be permitted. Provisions regarding to criminal offences and penalties shall not be interpreted widely so as to
lead to the use of analogy./ Türk Ceza Kanunu, Suçta ve cezada kanunilik ilkesi Madde 2- (1) Kanunun açıkça suç saymadığı
bir fiil için kimseye ceza verilemez ve güvenlik tedbiri uygulanamaz. Kanunda yazılı cezalardan ve güvenlik tedbirlerinden
başka bir ceza ve güvenlik tedbirine hükmolunamaz. (2) İdarenin düzenleyici işlemleriyle suç ve ceza konulamaz. (3)
Kanunların suç ve ceza içeren hükümlerinin uygulanmasında kıyas yapılamaz. Suç ve ceza içeren hükümler, kıyasa yol
açacak biçimde geniş yorumlanamaz.
 TYPES OF SANCTIONS - CIVIL SANCTIONS

Civil Sanctions

Compensation (Tazminat) Execution (Cebrî İcra) Invalidity (Hükümsüzlük)

If a person with his wrongful act The act of making a court decision When a legal transaction violates the
causes a damage to another effective by compelling the defendant to requirements of law and thus the law denies
person, he is obliged to pay or to do what court has ordered. For the effect intended by the parties, the legal
example, when a debtor or wrongdoer is transaction is accepted as ineffective.
compensate this damage by a  Non-existence (yokluk)
ordered by a court to pay his debt or to
court decision. The damage can pay the damages, he caused, and he insists  Absolute Nullity (ineffective from the
be either material or immaterial. on not to pay, then his goods can be sold beginning/kesin hükümsüzlük)
The compensation is in by the force of the State to pay the debt.  Relative Nullity/Voidability (not
monetary form. Execution is carried out by the competent automatically ineffective from the
organs of the State. beginning, but up to the parties)
(iptal edilebilirlik)
 TYPES OF SANCTIONS - CIVIL SANCTIONS

Administrative Sanctions

Sanctions against private persons Sanctions against administration

Unilateral decision-making power of In the cases where an administrative act
administration in the cases where violates law, administrative courts can
individuals violate law. decide for non-existence or annulment
• Example: Revocation of licence, of this act and compensation of the
administrative fines (including damage (if there is also damage).
traffic fines)
 LEGAL SYSTEMS IN THE WORLD

Common Law Religious Law Customary

System System Law System

Civil Law Socialist Law Hybrid

System System Systems
 LEGAL SYSTEMS IN THE WORLD

Common Law System Civil Law System

(Anglo-American Law) (Continental European Law)

- originated in England in the early Middle Ages - derives from the Latin ius civile, the law applicable to Roman
- judge-made law: binding judicial decisions citizens (Roman Law)
- rediscovered and made the basis of legal education in eleventh-
(precedent- the principle of stare decisis) as a
century Italy and then spread throughout Europe
source of law regarding their legal basis - codified legislative acts are the primary source of law –
- generally uncodified, limited content of statute law
comprehensive, continuously updated legal codes
- customary rules as a primary source of law - judicial decisions are generally not binding for third parties
- no distinction between private law and public law (except some constitutional and administrative court decisions
- the role of the judge is less active and unification decisions of conflicting judgements)
- examples: UK (except Scotland), US (except - judge applies legal provisions of the applicable code on the
Louisiana), Canada (except Quebec), Australia, dispute before the court.
New Zealand, India, Singapore - customary rules become a part of law, only if the law refers to
them
- distinction between private law and public law
- the role of the judge is more active and involved
- examples: Continental Europe, Latin American countries,
Turkey, Japan, China
 LEGAL SYSTEMS IN THE WORLD

Religious Law System

• Islamic Law
• Saudi Arabia, Sudan, İran, Yemen
…
• Mostly hybrid systems in many Socialist Law System
other muslim countries like Qatar,
Egypt, Lebanon … Private property on the means of
• Jewish Law production is not allowed.
• Christian Canon Law • former Soviet Union and other
socialist bloc countries
The legal system in Israel is influenced • Cuba (hybrid with civil law system,
both by common law and civil law which is adapted to the socialist
systems. However, jewish law, islamic law system), North Korea
and christian canon law are also applied
in religious courts for each community
regarding some family law matters.
 SOURCES OF LAW

Where the legal rules are found?

The collection of contemporary legal rules, the positive law, the product resulting from law-making
activities

• The late eighteenth and the beginning of nineteenth century, many Continental European countries codified much of their law-
the movement of codification
• In common law countries, the majority of legal rules are derived from customary principles and court decisions (precedents),
however, there are also statutes.
• Turkey has followed the Continental European law system and at the beginning of the Republic codified various areas of law,
through reception of many European codes.
• Examples: The reception of Turkish Civil Code and Code of Obligations from Switzerland , Turkish Commercial Code from Germany,
Turkish Criminal Code from Italy.

Sources of law may differ for each country,

however, there are common concepts such as
constitution, statute, judicial precedent,
customary law
 SOURCES OF TURKISH LAW

Primary Sources Secondary Sources

Written Sources
1. Constitution
Legal
2. Statutes (Codes) Unwritten Source Scholarship Judicial
3. International
(Academic Precedents
Treaties Customary Law Writings)
4. Presidential Decrees
5. By-Laws
 SOURCES OF TURKISH LAW

Written Sources
The constitutional amendment of 2017 (came into effect on 9. July
1. Constitution (Anayasa) 2018) brought important changes regarding the constitutional
2. Statutes (Codes) (Kanun) system of the country:
3. International Treaties • The Prime Minister’s Office and the Council of Ministers were
(Uluslararası Sözleşmeler) abolished. Instead, Presidential Cabinet is established.
4. Presidential decrees • The constitutional position of the President of Republic changed
(Cumhurbaşkanlığı and was given the sole executive power and an important portion
Kararnameleri) of the legislative power:
5. By-Laws (Yönetmelikler) • »Presidential decrees»
• «Decrees with the effect of law» (kanun hükmünde kararname)
and «regulations» (tüzükler) cannot be issued anymore after the
constitutional amendment. However, the decrees with the effect
Decrees with the effect of law and regulations, of law and the regulations, which had been issued before remain
which had been issued before the
constitutional amendment of 2017 remain in
in force. Before the constitutional amendment, the Council of
force. Therefore, they are also included Ministers had the power to issue decrees with the effect of law
within the written sources of law. (upon authorization of the Parliament) and regulations.
 SOURCES OF TURKISH LAW

Constitution

In the hierarchy of enacted laws, the Constitution comes at first place. Constitution defines the form, the
principles and the organs of the state, the rights and duties of individuals, relationship between individuals
and the state.
The judicial control of the legislative acts regarding their conformity with the constitution is provided by
the Constitutional Court. The procedure to make an amendment in constitution is specified within the
constitution and is harder than to make an amendment in a code.

Turkish Constitution
XI. The Supremacy and Bindingness of the Constitution
Article 11 – Provisions of the Constitution are fundamental legal rules which are binding for all legislative, executive and
judicial organs, and administrative authorities and other agencies and individuals.
Statutes may not be in conflict with the Constitution.
XI. Anayasanın bağlayıcılığı ve üstünlüğü
Madde 11 – Anayasa hükümleri, yasama, yürütme ve yargı organlarını, idare makamlarını ve diğer kuruluş ve kişileri
bağlayan temel hukuk kurallarıdır.
Kanunlar Anayasaya aykırı olamaz.
 SOURCES OF TURKISH LAW
Statutes (Codes)
• are enacted by the legislative organ: Parliament (Turkish Grand National Assembly)
• come into effect after their publication in the Official Gazette.
• the judicial control regarding their conformity with the constitution is provided by the Constitutional
Court.
• have various scopes. Ex: Turkish Civil Code, Turkish Criminal Code, etc.

International Treaties
• Each country has different process of ratification and legislative approval of international treaties and the
place of the international treaties in their domestic laws also varies (dualist view vs. monist view).
• International treaties to which Turkey is a party are approved by the Parliament, by enactment of a statute.
Treaties, which are duly put into effect, have equal rank with the statutes, however, they are not subject to
the judicial review of constitutionality by the Constitutional Court.
• An international treaty will take precedence (priority), if its provisions regarding fundamental rights and
freedoms are in conflict with statutes (Turkish Constitution Art. 90).
 SOURCES OF TURKISH LAW

Presidential decrees (Constitution Art. 104)

• are issued by the President on the matters regarding executive power.

• come into effect after their publication in the Official Gazette.
• can be stated to have equal rank with statutes. However, if there is a conflict between a
presidential decree and a statute, the statute will be applied, therefore it can also be
expressed that presidential decrees have a rank below the statutes in the hierarcy of
norms.
• cannot be issued in the fields of fundamental rights and freedoms specified under the
Constitution Art. 104.
• cannot be issued on the matters explicitly regulated by statutes.
• will become null and void if the Parliament enacts a statute on the same matter.
• the judicial control is provided by the Constitutional Court.
 SOURCES OF TURKISH LAW

Presidential decrees issued under the state of emergency (Constitution Art. 119)

• are issued on the matters necessitated by the state of emergency, also including
fundamental rights and freedoms.
• have equal rank with the statutes (clearly stated in Art. 119)
• should be submitted to the Parliament for approval and if not approved within 3 months,
lose validity automatically.
• are exempted from the judicial review of the Constitutional Court.

By-Laws (Constitution Art. 124) are issued by the President, Ministries, public corporate bodies relating to
their jurisdiction with the purpose of ensuring the application of statutes and presidential decrees, and should
be in conformity with these statutes and presidential decrees. By-Laws are under the judicial review of
administrative courts.
 H I ER A R C Y O F N O R M S
( I N TU R K I S H L AW )

Decrees with the effect of law and regulations, which

are issued before 2018, also included within the written
sources of law. Decrees with the effect of law have
equal rank with statutes. Regulations have a rank just
above by-laws. Since 2018, it is not possible to issue Constitution
decrees with the effect of law and regulations.
International treaties regarding fundamental rights
and freedoms

Decrees with the effect • Statutes

of law issued before • International treaties
2018 • Presidential decrees issued under the
state of emergency

Presidential decrees
Regulations issued
before 2018
By-laws
 SOURCES OF TURKISH LAW
 Unwritten Source - Customary Law
 If the law recognizes some customs as a part of law, then it is accepted as unwritten source of law and called customary law. Conditions
to be accepted as customary law:
 Antiquity Turkish Commercial Code Art. 1/II states that where
there is no commercial provision applicable to the
 Continuity
concrete case before the court, the judge will decide in
 Recognized as being obligatory and binding by the general public accordance with the commercial custom. The general
provisions of written law will then be applied only
 State Sanction when there is no commercial custom.
 Not opposed to the written law and general principles of the law system

Turkish Civil Code

A. The Application and Sources of Law

Article 1 – The law must be applied to all matters which come within the letter or the spirit of any of its provisions.
If there is no applicable provision in law, the judge decides according to the customary law. When there is also no customary rule applicable, the judge decide
according to the rules, which he would lay down if he had to act as a legislator.
The judge benefits from scientific opinions and judicial decisions.

A. Hukukun uygulanması ve kaynakları

Madde 1 - Kanun, sözüyle ve özüyle değindiği bütün konularda uygulanır.
Kanunda uygulanabilir bir hüküm yoksa, hakim, örf ve âdet hukukuna göre, bu da yoksa kendisi kanun koyucu olsaydı nasıl bir kural koyacak idiyse ona
göre karar verir.
Hâkim, karar verirken bilimsel görüşlerden ve yargı kararlarından yararlanır.
 SOURCES OF TURKISH LAW

Secondary Sources

Judicial
Legal Precedents
Scholarship do not have binding
effect for third parties in
(Academic
principle. Exception:
Writings) Unification decisions of
conflicting judgements
 APPLICATION OF LEGAL RULES

Application regarding territory

Principle of Principle of
Territoriality Nationality

 The application of the legal rules for all  The application of a legal rule depending on the
people within the territories of that state, nationality of the person.
independent of being a citizen or not.  Where this principle applies, the national law of the
 This principle is the rule in branches of person is applied on the concrete matter of dispute.
public law, especially in criminal law.  This application is generally observed in the field of
 This principle stems from the sovereignty civil law, especially regarding law of persons, family
of the state. law, inheritance law.
 The branch of international private law focuses on
this subject.
 APPLICATION OF LEGAL RULES

Application regarding time

As a rule, because of the principle of legal
reliability, the legal rules have in principle
an immediate applicability and does not
Validity is not have a retroactive application. However,
Cease to have
the same with there can be some exceptions:
effect
effectiveness. For example, in criminal law, if the new
enacted statute brings a favorable change
 The application of a legal rule  If a statute has an application of for the offender, this favorable rule will
starts with the time of limited time, after that period of time, be applied retroactively.
effectiveness of it. it ceases to have an effect. Turkish Criminal Code Art. 7:
 When a date is not specifically  If a new statute is enacted regarding «If there is a difference between the law
determined, a legal rule enters the same subject (repeal/abrogation). in force at the time a criminal offence was
into effect starting from the  If the Constitional Court gives a committed and a provision subsequently
day it is published on the decision of annulment. brought into force, then the law which is
Official Gazette. more favourable to the offender is applied
and enforced.»
 APPLICATION OF LEGAL RULES

General
Provisions of
Law (legal Application of the legal rules
rules) to the actual conflict before
Abstract the court
 Determining the
applicable legal rules
 Determining the relevant
facts and eliminating the
irrelevant ones
 Reaching a judgement
Actual Legal
Concrete
Conflict
 APPLICATION OF LEGAL RULES

The Methods of Reasoning to Reach a Judgement (Decision)

SYLLOGISM
(tasım, tümdengelim) All men are mortal. (Major Premise – Büyük Önerme)
The act of logical
reasoning by which Aristotle is a man. (Minor Premise – Küçük Önerme)
from two given
premises to proceed Therefore Aristotle is mortal. (Conclusion- Hüküm/Vargı)
to a third premise

Example:

Majority (Erginlik) is attained by reaching the age of 18 years. (Major Premise - Legal Rule –Turkish Civil Code Art. 11)

X is18 years old. (Minor Premise – Fact)

Therefore X has attained majority (Conclusion – Judgement – Decision)

 APPLICATION OF LEGAL RULES

The Methods of Reasoning to Reach a Judgement (Decision)

Argumentum a Contrario
Example:
 An argument derived from
the opposite of the
According to Turkish Civil Code Art. 11, apart from reaching the age of 18
meaning of a legal rule.
years, majority is also attained by marriage. (legal rule)
 This method narrows the
application of a legal rule.
Majority cannot be attained by engagement. (legal rule derived through the
 This reasoning cannot be
method of argumentum a contrario)
applied always. It can be
applied, when the legal
Y is 17 years old and is engaged. (fact)
rule has a limitative
meaning.
Y has not attained majority. (judgement)
 In criminal law, this
principle is applied.
 APPLICATION OF LEGAL RULES

The Methods of Reasoning to Reach a Judgement (Decision)

ANALOGY When smoking cigarettes in train is prohibited by law, however there is no legal rule regarding pipe
(Örnekseme/Kıyas) smoking. The legal rule prohibiting smoking cigarettes can be applied to smoking pipes by the way of
A gap in the law is filled analogy.
through the application
It should be determined, if the same intention is also valid for the similar case.
of a rule used in similar
cases. The application of a legal rule becomes wider by analogy.

In criminal law, analogy is strictly forbidden because of the principle of legality of crimes and
punishments.

Turkish Criminal Code

Article 2/III- In the application of the codes containing criminal offences and penalties, the use of analogy shall not be
permitted. Provisions regarding to criminal offences and penalties shall not be interpreted widely so as to lead to the use of
analogy.
Madde 2/III- Kanunların suç ve ceza içeren hükümlerinin uygulanmasında kıyas yapılamaz. Suç ve ceza içeren hükümler,
kıyasa yol açacak biçimde geniş yorumlanamaz.
 APPLICATION OF LEGAL RULES

I N T E R P R E TAT I O N O F L EG A L R U L E S

The correct application The letter of the law

The spirit of the law
When the wording of a
of a legal rule requires to The wording in its legal rule does not directly
and clearly refer to the
determine the meaning formulation should concrete case, the judge
be firstly taken into will determine the purpose
of it. consideration and principles underlying
the law as a whole.

Turkish Civil Code

A.The Application and Sources of Law
Article 1/1 – The law must be applied to all matters which come within the letter or the spirit of any of its
provisions.
Hukukun uygulanması ve kaynakları
Madde 1/1 - Kanun, sözüyle ve özüyle değindiği bütün konularda uygulanır.
 APPLICATION OF LEGAL RULES

I N T E R P R E TAT I O N O F L EG A L R U L E S

The legal rules are general and abstract. A legal rule is formulated to
regulate all cases falling within a certain category. However, the
The wording of a legal realities of life are variable. Therefore, the judge should apply a general
rule is not always and abstract legal rule to a concrete case by determining the correct
sufficiently clear. meaning and purpose of the legal provision. This process requires the
activity of interpretation (yorum) of legal rules.
 APPLICATION OF LEGAL RULES

I N T E R P R E TAT I O N O F L EG A L R U L E S

Methods of
Interpretation
 Textual/Literal/Grammatical Interpretation
The methods of
 Historical Interpretation
determining the correct
 Logical Interpretation
meaning of a legal rule
 Teleological Interpretation
for the purpose of
 Free Interpretation
applying it to a concrete
case
 APPLICATION OF LEGAL RULES

I N T E R P R E TAT I O N O F L EG A L R U L E S

Textual/Literal/Grammatical Logical Interpretation

Interpretation Historical Interpretation  This method is applied where the
 To determine the meaning of a law is ambigious, silent or when
legal rule by examining the words  To determine the meaning of a there are conflicting rules
and sentences in it. legal rule by researching the applicable.
 This method is only sufficient history of the drafting and  This method takes the law as a
when the meaning of the words are adopting processes, the meaning whole into consideration to
clear enough to be directly applied given to the legal rule by the law- determine the meaning of a single
legal rule in it.
to the concrete case. maker, the intent of the law-maker  By this way, the judge determines
 However, because the wording of a (legislative history). the spirit of law and the true
legal rule is not always clear  However, the meaning of a legal intention of the legislature as a
enough, this method is not always rule, which is given to it by the whole.
sufficient. But the starting point of parliament, cannot solve many of  In the cases where there is no
interpretation is always a textual the actual problems and needs of directly applicable legal rule, the
interpretation. today. judge applies the methods of
reasoning like analogy.
 APPLICATION OF LEGAL RULES

I N T E R P R E TAT I O N O F L EG A L R U L E S

Teleological Interpretation (objective

theory)
Free (Unrestricted) Interpretation
 According to this method, «the purpose of
the legislator (legislative intent)» and «the
 The method interprets the legal rules
purpose of the law» is not the same.
according to the actual needs and
 The original purpose of the legislator
conditions of that time without any
cannot determine the future application of
reliance on the written text.
the law in concrete cases and therefore a
 This method is criticized because of the
legal rule should be interpreted independent
risk of arbitrary applications of law,
of its legislative process.
against legal stability and reliability .
 Therefore, it is important to determine the
purpose of a legal rule (ratio legis) and to
consider the necessities of today.
 APPLICATION OF LEGAL RULES

I N T E R P R E TAT I O N O F L EG A L R U L E S

Because of the
principle of legal
security and
Interpretation is seperation of powers,
Judge interprets the
Judge applies the necessary, if the judge should not
legal rule in order to
legal rules to the meaning of the legal create a legal rule, in
apply it to the
concrete dispute rule is not clear
concrete dispute. principle.
enough
The only task of the
judge is to apply the
legal rule enacted by
the legislative organ
to the concrete dispute
before the court.
 APPLICATION OF LEGAL RULES

I N T E R P R E TAT I O N O F L EG A L R U L E S

In order to provide an objective

way of interpretation, which
does not differ from person to
person, some general principles
General Principles of Interpretation
of interpretation is needed.
 APPLICATION OF LEGAL RULES

I N T E R P R E TAT I O N O F L EG A L R U L E S

General Principles of Interpretation

Interpretation is needed,
Interpretation should be
when the meaning is not General rules should be
made within the limits of
clear already from the interpreted widely.
wording of the legal rule.
wording.

When there is a limitative list of applicable A fact, which is contrary to

Exceptions should be matters (numerus clausus/limitative the normal course of life,
interpreted narrowly. enumeration), this rule cannot be applied to need to be proven by the
other similar cases (analogy is forbidden). party, who claims it.
 APPLICATION OF LEGAL RULES

B U R D E N O F P R O O F ( İ S PAT Y Ü K Ü )

During a trial, the parties of the

The evidence brought by the parties
dispute before the court need to
which proves the facts is called
prove the facts, which they are
proof.
depending on.

Usually the plaintiff However, in some cases,

has to prove the facts Plaintiff Defendant the defendant also raises
on which he/she (Davacı) (Davalı) new facts. Then he/she
depends on. needs to prove these facts.
 APPLICATION OF LEGAL RULES

BURDEN OF PROOF

Art. 6 is understood as
The burden of proof may Turkish Civil follows:
shift from one party to the Code In principle, the burden of
other as the claims and Art. 6 – Burden proof falls on the party,
counter claims go back and of Proof who depends his/her claim
forth between the parties. on an exceptional/unusual
facts. A fact is exceptional,
when it is contrary to the
normal course of life.

In criminal law, the elements of a crime, which the

defendant is accused of, must be proven by the
Prosecution.
 APPLICATION OF LEGAL RULES

BURDEN OF PROOF

Some examples of legal presumtions:

Presumptions
 Rebuttable Presumptions (adî karine)
(Karine)
 Presumption of Innocence
(Shift the
 Presumption of Good Faith
burden of
 Presumption of Ownership
Proof)
 Presumption of Paternity

 Irrebuttable Presumption (kesin karine)

 APPL ICAT ION OF L E GAL RULE S

TYPES OF LEGAL RULES

Imperative Provisions
Dispositive Provisions
(mandatory/compulsory)  These are the norms, which apply, when the parties do not
 It is compulsory to obey these rules.
determine differently.
 It is not possible for the parties to determine the contrary.  These are the rules mostly seen in private law, especially
 Regarding these provisions, there is no place for freedom of
in contract law. In this branch, the rule is freedom of will
will of the parties.
and freedom of contract.
 Legal rules of public law have in principle imperative
nature. Ex. Criminal law provisions
 Legal rules of private law are generally dispositive.
However, there can also be imperative provisions in private Interpretative provisions interprets some unclear phrases,
law. For example, it is forbidden to marry before the age of which are commonly used. For ex: In what way should it be
17. Another example: It is forbidden to have polygamy understood, when we say «the middle of the month»
/plural marriage. (Turkish Code of Obligation Art. 91)
 The reason of such imperative provisions in
private law is generally public order, public Definitive provisions defines the concepts, which are used
morality and protection of weak party. within the code as a terminology. For ex: The definition
 The sanction of not obeying these rules in private regarding, who is called as consumer (Code on Consumer
law is generally non-existence or absolute nullity. Protection Art. 3).
 B RANCHE S OF LAW

Law consists of
legal rules These rules belong to various branches of law.
enforced by State.

In general, branches Different

of law are classified branches of law
according to their have different
nature and scope of nature and
application. functions.
 B RANCHE S OF LAW

T Y P E S O F C L A S S I F I C AT I O N

Public Law (kamu hukuku) vs. Private Law (özel hukuk)

This classification is traditionally accepted in Continental European countries (civil law system).
We also follow this common classification in our lectures.

In principle, private law contains legal

In principle, public law contains legal rules,
rules, which regulate:
which regulate:
 the relationship between private persons.
 the relations between private persons (both
In this relation, private persons have equal
natural and legal) and the State. In this
position.
relation, State has a dominant position.
 In some cases, the State may act in the
 the structure and operation of State, the
capacity of a private person. Ex: When a
relationship of State organs with each other
public body purchases a good or rents a
and with the public.
house.
 B RANCHE S OF LAW

T Y P E S O F C L A S S I F I C AT I O N

Domestic (National) Law (iç hukuk) vs. International Law (uluslararası hukuk)
 Domestic law regulates the legal matters within the jurisdiction of a particular State. Ex. Turkish law, Swiss law, French
law, etc.
 International law regulates the legal matters among the States (and other members of the international community such
as international organisations).
 Regarding the relationship between domestic law and international law, there are two theories:
 Dualistic theory: Domestic law and international law are equal, independent and separate systems. Ex: UK, Canada,
Australia
 Monistic theory: Domestic law and international law are parts of one legal system. Ex: Turkey, continental
European countries, Latin American countries)

Substantive Law (maddi hukuk) vs. Procedural Law (usul hukuku)

 Substantive law regulates the rules which create, grant, recognize the rights and impose obligations and duties and
determines their contents. Ex. Civil law, criminal law, law of obligations, etc.
 Procedural law regulates the methods for the enforcement of rights (law of civil procedure) and for the prosecution and
punishment of violations of criminal rules (law of criminal procedure).
 B RANCHE S OF LAW

P U B L I C L AW V S . P R I VAT E L AW

Legal rules are classified and systematized according to the nature of relationship.

Character of interest protected (interest-

theory)
public interest or private interest
Criticism: Not easy to distinguish these two interests
Private law regulates the relationship
between private persons (natural or legal Character of the parties involved
persons). (subject-theory)
Criticism: The State does not act always in its
Public law regulates the relationship sovereign capaciy. Sometimes the State acts in a
between private persons and the State. capacity of a private person (the example of State as a
Public law regulates also the organisation tenant and private person as a landlord)
of the State.  The State acts in its sovereign capacity, when it
performs proper functions as sovereign power,
according to the constitutional law.
 B RANCHE S OF LAW

B R A N C H E S O F P U B L I C L AW

Constitutional Law Administrative Law Tax Law

(Anayasa Hukuku) (İdare Hukuku) (Vergi Hukuku)

Public International
Law of Criminal
Criminal Law Law
Procedure
(Ceza Hukuku) (Uluslararası Kamu
(Ceza Usul Hukuku)
Hukuku)
 B RANCHE S OF LAW

B R A N C H E S O F P R I VAT E L AW

Civil Law (Medeni Hukuk)

Commercial Law
(including Law of (Ticaret Hukuku)
Obligations)

Civil Procedure (Medeni Private International Law

Usul Hukuku) (Uluslararası Özel Hukuk)
 B RANCHE S OF LAW

S O M E E X A M P L E S O F T H E B R A N C H E S O F L AW W H E R E
P U B L I C A N D P R I VAT E C H A R A C T E R I S T I C S A R E M I X E D

Labour Law Environmental Law Competition Law

(İş Hukuku) (Çevre Hukuku) (Rekabet Hukuku)
 B R A N C H E S O F L AW - B A S I C C O N C E P T S O F P U B L I C L AW
Despite various differences in its definition, the concept of State has 3 main elements in itself:
 Territory
 Population
STATE
 Sovereignty
As a general definition: «State is a political organisation possessing the ultimate authority to govern its own population within its territory»
(Rona Aybay, p. 67)
Sovereignty
Territory Population (spiritual element)
 In history, sovereignty described the absolute and unrestrained power of
(physical element) (human element) the monarch. In modern times, this meaning has changed on the
 Territory is the sphere where that State has  Population gives a State its living character, grounds of the principle of the rule of law (hukuk devleti) and
the exclusive competence to enforce its which is effected by economic, cultural and democracy.
laws. historical character of the community.  According to the principle of the rule of law, all powers of the State is
 State’s territory includes not only an area  The legal relationship between an individual limited by law.
 In international law, between the States there is a principle of sovereign
of surface land, but also territorial seas and and a State is citizenship (nationality). equality.
the airspace. These issues become often a Depending on the discretion of a State, not  Two components of sovereignty:
subject of conflicting interest between only real persons (humanbeings) and legal  Internal sovereignty means the power to of a State to determine
States. persons (ex. corporations) have citizenship, its own internal policy regarding internal affairs.
 There are unitary States and federal States. but also «things» (ships, airplanes) may have  External (international) sovereignty means the power of a State
Turkey is unitary State, where a central a citizenship. to determine its foreign policy independently.
 After World War II, the protection of human rights against the abusive
government has the sole authority over the  There are some internationally
practice of States gained more awareness and therefore human rights
territory. accepted standards of citizenship in issues are no more considered as within exclusively internal affairs of a
 In federal States, there are regional international law. State.
units (cantons, lands) having certain  Nationality of parents  In republican regimes, an elected leader does not possess the
constitutional power to make laws  Place of birth sovereignty, rather acts as the representative of the people of that State.
within their regional area. Generally  Citizenship is a reciprocal relationship  Turkish Constitution Art. 6 declares that «sovereignty belongs
federal law has superiority in the unconditionally and without any restriction to the Nation. The
between an individual and a State, consisting nation exercises its sovereignty through authorised agencies in
cases where federal law and regional of mutual duties, obligations and accordance with the principles laid down in the Constitution.
law has conflict. responsibilities. The right to exercise sovereignty shall not be delated to any
individiual, group or class.»
 B R A N C H E S O F L AW

B A S I C C O N C E P T S O F P U B L I C L AW

 Constitutional law defines the structure of the State and its constitutional functions.
Constitution grants specific powers to the State under certain limitations.
Constitutional
Law
 distribution of powers (legislative, executive and judicial powers)
(Anayasa  fundamental rights and freedoms
Hukuku)  basic principles for other branches of law
 Constitution is the written fundamental text. As the origin of modern constitution is
recognised the English Magna Carta of 1215, bringing some limitations on the power of
the king and granting rights to his subjects.
 Turkish Constitution of 1982 is in effect today, with certain amendments.
 By the amendment of 2017, the Council of Ministers was abolished and the
President of Republic became the sole holder of the executive power.
 In Turkish law, constitution has a superior position regarding the hierarcy of norms
(Art. 11).
 Constitutional Court reviews the legislative acts, if they are in conformity with the
Constitution. If not, then the Constitutional Court has the power to declare that
statute null and void.
Constitutional
Law B R A N C H E S O F L AW
(Anayasa
Hukuku) B A S I C C O N C E P T S O F P U B L I C L AW

 Turkish Constitution contains some basic principles, defining the characteristics of the Turkish Republic (Art. 2):
 The rule of law:
 Every action of government must be in conformity with law and thus legal security must be provided for individuals.
 The Constitutional Court reviews the constitutionality of the legislative acts and the Supreme Administrative Court
(Danıştay) and the other administrative courts review the administrative acts and actions, if they are in conformity
with law. (judicial review)
 The rule of law requires the existence of democracy, respect for human rights, equality, judicial review of legislative
and administrative acts and independence of the judiciary power.
 Secularism:
 The principle of separation of religion and law.
 In 1937, by an amendment to the Constitution of 1924, secularism was declared as one of the main constitutional
principles of the Turkish Republic.
 Freedom of religion is granted by Constitution Art. 24.
 Respect for human rights:
 Turkey is among the original members of UN and voted in favor of the Universal Declaration of Human Rights
(1948).
 The European Convention on Human Rights was ratified by Turkey in 1954.
 Turkish Constitution states that if a statute has a conflict with an international treaty relating to to fundamental rights
and freedoms, the international treaty will take precedence (Art. 90).
 If a person claims that his/her fundamental rights and freedoms were violated by State, it is possible directly apply to
the Constitutional Court by means of a «constitutional complaint».
 B R A N C H E S O F L AW
B A S IC C O N C E P T S O F P U B L IC L A W

 Turkish Constitution contains some basic principles, defining the characteristics of the Turkish Republic (Art. 2):
 Democracy:
 in line with the principles of European Convention on Human Rights, the right to free elections (Art. 3 of the First Protocol)
 Citizens have right to vote, to be elected, to engage in political activities independently or in a political party (Constitution Art.
67).
 Free elections
Constitutional  Secret ballot
Law  Free expression of the opinion of the people
(Anayasa  Counting of ballots is open to public
Hukuku)  Elections and referendums are subject to the direction and supervision of the judiciary.
 Proportional representation with a threshold of ten percent.
 Right to form a political party is recognized as a constitutional right (pluralistic democracy).
 National State:
 Turkey is a unitary State.
 Administration acts in accordance with the principle of unity and indivisibility (in terms of organisation and functions,
Art. 112).
 The departments and units of administration constitute the same body of Administration.
 The units of regional administration are subject to the control of the central administration (the power of tutelage
(idari vesayet)).
 Social State:
 National solidarity and justice (Art. 2)
 Social and economic rights, Turkish Constitution Chapter 3
 Protection of the family, right to organise labour unions, collective bargaining, right to strike, guarantee of a fair wage,
right to housing, etc.
 The right to social security: The State should take necessary measures to provide a system of social security.
 B R A N C H E S O F L AW

B A S I C C O N C E P T S O F P U B L I C L AW

Judicial Review by the Constitutional Court

 Judicial control of legislative acts

1) Action for Annulment (İptal Davası)
Constitutional 2) Constitutional Objection (Anayasaya Aykırılık İtirazı)
Law
3) Constitutional Complaint (Anayasa Şikayeti)
(Anayasa
Hukuku)
 Not only statutes are subject to the judicial review of the Constitutional Court, but also presidential
decrees (except the presidential decrees issued under the state of emergency (Constitution Art. 119))
and decrees with the effect of law and parliamentary by-laws.

 The Constitutional Court acts also as a supreme criminal court, where a high-ranking public figure
commits a crime regarding his/her functions (Art. 148/6,7).

 The cases regarding the dissolution of political parties and waiver of the immunity of members of
the parliament are also within the jurisdiction of the Constitutional Court.
 Constitutional
Law B R A N C H E S O F L AW- B A S I C C O N C E P T S O F P U B L I C L AW
(Anayasa
Hukuku) Judicial Review by the Constitutional Court

Constitutional Complaint (Anayasa

Action for Annulment (İptal Davası) Constitutional Objection (Anayasaya Aykırılık Şikayeti)
 involves abstract review of legislative İtirazı)  this action is brought by the constitutional
acts through an action brought directly  involves a concrete review of legislative acts through an amendment of 2010 (Art 148/3) (origin
before the Constitutional court (Art. 150). action brought either by a lower court or by one of the German law).
 The constitutionality of a statute can be parties to a case before a lower court (Art. 152) regarding a  an action against public authority that allows
brought before the Court as soon as the question of constitutionality. any individual to apply directly to the
statute is published in the Official Gazette,  Where a party wants to bring the case before the Constitutional Court to complain a breach of
within 60 days following the publication Constitutional Court, this part is required to convince the any fundamental rights, which are guaranteed
(even before it is applied in any concrete lower court that his/her constitutional objection based on both in Constitution and in European
case). serious grounds. Convention of Human Rights (Art 148/3).
 However, only a restricted group of people  If a court considers a statute, which is not in conformity  it is required to have exhausted all regular
may bring such a case before the with the Constitution, then this court should bring the case remedies available before applying to the
Constitutional Court (Art. 150 - President, before the Constitutional Court. This lower court should Constitutional Court by constitutional
parliamentary groups of the party in have sufficient grounds for its claim of unconstitutionality. complaint.
power and the main opposition party, and  Differently to the action for annulment, there is no time
a minimum of 1/5 of the total members of limit to bring the case before the Constitutional Court.
the Parliament)  The Constitutional Court reviews the case within 5
 Constitutionality of the constitutional months. During this period of time, the case before the
amendments can be only reviewed lower court will be suspended. If the Constitutional Court
regarding the conformity with the formal does not decide within 5 months, then the lower court will
requirements (Art. 148). continue the case with the existing provisions.
 If the Constitutional Court rejects the case on the merits, it
is not possible to bring the same issue again before the
Constitutional Court for ten years.
 B R A N C H E S O F L AW- B A S I C C O N C E P T S O F P U B L I C L AW

 Administrative law contains rules, which

 govern the relationship between administrative authorities and private
Administrative Law individuals,
(İdare Hukuku)  determine the legal status of civil servants (public officials),
 define the rights and liabilities of individuals in their relationship with civil
servants.
 regulate administrative actions and decisions.
 determine the methods and procedures of regulatory measures.
 In modern times, a State does not have just traditional roles regarding order and security,
but has also various other functions in economy, education, health, communication, etc.
Today, the concept of public service has gained an increasingly important role.
 Public services are provided by civil servants, who have discretionary authority (takdir
yetkisi) regarding their functions.
 State provides public services through taxes and revenues.
 This field of law does not have a fundamental code, which applies to all administrative
issues as a whole, rather almost every statute have some administrative provisions since
each statute requires some administrative measures to be taken.
 B R A N C H E S O F L AW- B A S I C C O N C E P T S O F P U B L I C L AW

 Because of the principle of rule of law, the individuals need to be protected against the
illegal or arbitrary actions of the State. Therefore, administrative actions and decisions
Administrative Law are under the judicial supervision of administrative courts.
(İdare Hukuku)  Turkish Constitution Art 125 – «Judicial review may be sought for all acts and
actions of the Administration», meaning that it is possible to bring a case
against the State for the acts and actions of its officials, which violate
individual rights or interests.
 The protection of individuals against the illegal or arbitrary actions of the
State is one of the main subject area of administrative law.
 Administrative courts have the jurisdiction over over disputes between
individuals and administrative authorities.
 The Council of State (Danıştay) is the highest court among the administrative
courts. It functions primarily as a court of appeals for the lower administrative
courts.
 However, for certain cases, it also functions as the first instance
court.
 B R A N C H E S O F L AW- B A S I C C O N C E P T S O F P U B L I C L AW

Administrative Organisation of Turkey

Administrative Law
(İdare Hukuku)
 The administrative organisation of Turkey is based on the Central Administration
(merkezi idare) and has also subsidiary units, which are designed depending on the
principle of decentralization (yerinden yönetim).
 The Central Administration is responsible for the most important functions of the State
and has also provincial branches.
 Ministries and certain consultative and auxiliary organs are parts of the Central
Administration.
 In terms of the central administrative organisation, the country is divided into
provinces (iller) and provinces are divided into sub-provinces (ilçeler). These units
have are headed by local representatives of the Central Administration.
 Municipalities (belediye) are responsible for the organisation of the public services
regarding their local area.
 B R A N C H E S O F L AW- B A S I C C O N C E P T S O F P U B L I C L AW

Judicial Review of Administrative Courts

Administrative Law
(İdare Hukuku)
(1) Action for Annulment (İptal Davası)
 An individual or legal person can bring an action for annulment against an illegal
administrative act, if this act has an actual or potential direct adverse effect on that
individual’s interest.
 The administrative court cannot modify an administrative act, but reviews the legality of
it and if it is found to be illegal, then the court decides for annulment of this
administrative act.
(1) Action for Full Remedy (Tam Yargı Davası)
 If an individual claims that his/her right violated by an illegal act or action of the
administration, he/she may bring an action for full remedy before the administrative
court. With this action, it is aimed to have a recovery of the damages given by the
administration.
 B R A N C H E S O F L AW- B A S I C C O N C E P T S O F P U B L I C L AW

 No one may punish wrongdoers by himself. The State applies the necessary sanctions
against the wrongdoer through law.
 Because of the public concerns, certain behaviours are determined as crimes because
Criminal Law
they are not just personal issues between individuals, but rather crimes against society.
(Ceza Hukuku)
 Criminal law consists of legal provisions, which
 determine the acts which are considered as crime within the Criminal Code.
 determine the necessary sanctions regarding each crime.
 Modern criminal law does not aim only to punish the wrongdoer, but also to prevent
crimes and to rehabilitate the wrongdoer.
 The main source of criminal law in Turkey is the Turkish Criminal Code.
 Criminal courts have the jurisdiction to decide on criminal cases.
 Criminal law is a field of public law. State is also a party in criminal cases, because the
society is also protected.
 Except some minor crimes, the State initiates criminal proceedings on behalf of
both the victim of the crime and the general community.
 The State is obliged to prosecute a person accused of committing a crime
independent of the choice of the victim.
 A prison sentence is only possible within the criminal law.
 B R A N C H E S O F L AW- B A S I C C O N C E P T S O F P U B L I C L AW

 Two main subject area of criminal law:

 Definition of Crimes
 Punishment
Criminal Law
Definition of Crimes
(Ceza Hukuku)

 A criminal act has 3 elements:

1. The act or omission to act: The act of the crime.
2. The requisite intention (guilty mind): Criminal intent or recklessness of the
wrongdoer.
3. Illegality: The act should be illegal, not permitted or excused by law.

 A fundamental principle of modern criminal law: A crime must be defined specifically

by the law (within the codes) currently in force, no crime without law.
 Turkish Constitution Art. 38, Turkish Criminal Code Art. 2, European Convention
on Human Rights Art. 7.
 The Principle of Non-retroactivity of Criminal Provisions
 Exception: The criminal provisions may have a retroactive effect, if they are
in favor of the person to whom they are applied to (Criminal Code Art.7)
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Punishment

Criminal Law  Punishments must also be specified by law (in the meaning of statute/code).
(Ceza Hukuku)  No punishment without law.
 This principle protects individuals against arbitrary punishment.
 Regarding the aims of the punishment there are various theories.
 The idea that the wrongdoer may be rehabilitated and reintegrated into society was
introduced in 18. Century.
 Modern criminal law has two main aims:
 To prevent the particular offender from future criminal conduct (special
prevention)
 To prevent others who might be tempted to commit crime (general prevention)
 In a court decision, the punishment given is also specified and the judges have some
discretion depending on the particular circumstances of each case within the limits and
conditions determined by law.
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Criminal Procedure
(Ceza Usul Hukuku)  This field of law determines the investigation, prosecution, trial and punishment of
crimes. It shows the method and procedures how people accused of committing a crime
will be prosecuted.
 No one can be convicted, if it is not proven in a court of law that he/she is guilty.
 Turkish Constitution Art. 38/4, Universal Declaration of Human Rights Art. 11/1,
European Convention on Human Rights Art. 6/2.
 No one can be punished for a criminal act committed by another person.
 The main source of Turkish criminal procedure is the Code of Criminal Procedure.
 In criminal cases, one party is the public, represented by the Public Prosecutor
(Cumhuriyet Savcısı) and the other party is the defendant, who is accused of committing
a crime.
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 This branch of law determines the relations of the members of the international
community
 relations between states
 other members of the international community, such as international
Public International organisations, which are increased in number and importance after World War
Law II
 individuals have become increasingly recognised as participants and subjects
(Uluslararası Kamu
Hukuku) of international law, primarily in the field of human rights law
 Some international organisations are universal, such as United Nations (UN), and some
are regional such as Council of Europe.
 Important differences between domestic law and international law:
1) Sanction is a controversial question in the field of international law.
 This field has its own special type of sanctions, which have a different
nature in comparison with sanctions of domestic law. Such as, limiting or
ceasing diplomatic relations or imposing an embargo upon trade with a
particular state, etc.
2) In international law, there is no central supranational authority of law-maker
and there is no centralized mandatory court.
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 It is generally accepted that the main sources of public international law are defined in
Public International
Article 38(1) of the Statute of the International Court of Justice (Uluslararası Adalet
Law
Divanı Statüsü):
(Uluslararası Kamu
 Primary Sources
Hukuku)
 International treaties
 written agreements between states, can be also called as pacts, charters,
protocols, etc.
 can be bilateral or multilateral
 they are binding for the involved parties, created by the voluntary and
The list of sources of mutual agreement. (not imposed by a supranational legislative body-
international law is not an such a body does not exist in international law)
exhaustive list. It is accepted
that there are also peremptory  Customary international law is also binding, if these criteria fulfilled:
norms (jus cogens), certain  Objective element: Continuous practice of States
rules of customary international  Mental element: Accepted as binding by the community of the States
law, which are considered as
fundamental and superior. Such
(opinio juris)
as, prohibition of slave trade,  General principles of law recognized by civilized nations
torture, genocide.  For ex. Not abusing rights
 Secondary Sources
 Judicial precedents
 Legal scholarship
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 Private law regulates the relations and conflicts between private persons (natural person or legal person)
(between equals)
 Even the State itself is not in a superior position regarding its relations within the scope of private law. Such
as renting a building from a private person.
 In the field of private law, guilt or innocence is not the issue.
 Branches of private law
 Civil law (including Law of Obligations)
 Commercial Law
 Law of Civil Procedure
 Private International Law
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 Turkish Civil Code and Turkish Code of Obligations was adopted from Switzerland in
1926. In years, it has changed a lot, and in 2002 and 2012, new versions of these
Codes were enacted. However, the main characteristics of the Swiss Code are still
preserved.
 Turkish Civil Code consists of a Preliminary Chapter and 4 Books:
 Law of Persons
Civil Law  Family Law
(Medeni Hukuk)  Law of Succession
 Law of Property
 Although the Turkish Code of Obligations is another code, it is regarded as an integral
part of the Civil Code. Therefore, the law of obligations is accepted as a sub-branch of
Civil Law.
 Civil law is the most compherensive branch of private law since it determines the
legal status and relationships of individuals from their birth until death.

For detailed information regarding Civil Law and especially Law of Persons see: Şebnem Akipek/ Tuğçe Oral, Introduction to Turkish Civil
Law and Law of Persons, 2022, Yetkin Yayınları
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 The Preliminary Chapter of the Turkish Civil Code serves as general principles in 7
Articles:
Civil Law
(Medeni Hukuk)  Art. 1- the order of the application of legal rules
 written rules, customary law, judge-made law
 Art. 1 and 4 - discretion and law-making function of the judge
 Art. 2 – Objective good faith
 Art. 3- Subjective good faith
 Art. 6 and 7 - basic rules regarding the burden of proof and evidence
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 The Preliminary Chapter of the Turkish Civil Code serves as general principles in 7
Articles:

 Art. 2 – Objective good faith (bona fides)

Art. 2- «Every person must act in good faith in the exercise of his/her rights and in
the performance of his/her obligations.
The manifest abuse of a right is not protected by law.»

Civil Law «Dürüst davranma

(Medeni Hukuk) Madde 2 - Herkes, haklarını kullanırken ve borçlarını yerine getirirken dürüstlük kurallarına
uymak zorundadır.
Bir hakkın açıkça kötüye kullanılmasını hukuk düzeni korumaz.»

In two respects is the objective good faith can be understood:

1) The principle of respect when exercising rights and fulfilling obligations

2) The prohibition of abuse of rights
The objective good faith brings a universal morality into the civil law with an
umbrella rule of reasonable behaviour based on trust.
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 The Preliminary Chapter of the Turkish Civil Code serves as general principles in 7
Articles:

 Art. 3 – Subjective good faith

«Where the code provides a legal effect conditionally to the subjective good faith of
a person, there shall be a presumption of good faith.
However, no person invoke the presumption of good faith, if he/she has failed to
Civil Law exercise the diligence required by the circumstances.»
(Medeni Hukuk)
«İyiniyet Madde 3- Kanunun iyiniyete hukukî bir sonuç bağladığı durumlarda, asıl olan iyiniyetin
varlığıdır.
Ancak, durumun gereklerine göre kendisinden beklenen özeni göstermeyen kimse iyiniyet
iddiasında bulunamaz.»
 Subjective good faith is based on a subjective situation, if a person knows or does
not know a situation. It is an excusable lack of knowledge of a person about the
existence of a situation, which prevents arising of a right.
 Subjective good faith is mostly important for the acquisition of rights.
 The subjective good faith is protected by law, only if the codes determine such a
legal effect.
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 Book 1 (Part I)- Law of Persons (Art. 8-117)

 natural and legal persons
 legal personality
 legal capacity
 personality rights
 the protection of personality rights
 Person is the subject, who is able to have rights and duties.

 Two categories of persons, both have personality:

 Natural (real) persons: human beings
Civil Law  Legal persons (juristic persons): a group of persons or assets, which are allocated for the
(Medeni Hukuk) accomplishment of a certain and continuous purpose.
 These are the entities created by law. Ex: Corporations, foundations, associations.
 Legal persons are also subjects of law, entitled to have rights and duties. However,
they have differences in comparison with human beings. For ex: They cannot create
family relations.
 The law of persons determines the rules regarding the formation, legal capacity,
administration and the scope of activities of the legal persons.

 The Content of Personality:

 Legal Capacity and Capacity to Act
 Personality Rights
 Civil Status
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 Book 1 (Part I)- Law of Persons (Art. 8-117)

 Natural Persons
 All human beings have natural personality.
 Personality begins at birth and ends with death (Art. 28).
 Between conception and birth the child is accepted to have legal capacity
conditionally, if he/she born alive.
Civil Law Art 28- «Personality begins at the completed birth of the living child and ends at his/her death.
(Medeni Hukuk) A child acquires legal capacity with the conception on condition that he/she is born alive.»

«C. Kişiliğin başlangıcı ve sonu

I. Doğum ve ölüm
Madde 28- Kişilik, çocuğun sağ olarak tamamıyla doğduğu anda başlar ve ölümle sona erer.
Çocuk hak ehliyetini, sağ doğmak koşuluyla, ana rahmine düştüğü andan başlayarak elde eder.»

 Completed birth is complete separation from the mother.

 The child should be alive at the completed birth. Only one breath taken is enough to
gain the personality. This is important especially for the inheritance law.
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 Book 1 (Part I)- Law of Persons (Art. 8-117)

 Legal Capacity (Hak ehliyeti)
 Capacity to have rights and duties.
 Every human being has legal capacity (Art. 8). Every human being can be subject to rights under
modern legal systems without any discrimination.
 Capacity to Act (Fiil Ehliyeti)
 Every human being does not have the capacity to act. Under certain requirements, the law recognizes
that the acts of a person have a legal effect.
 Requirements:
Civil Law 1) Capacity of judgement (Art. 13) (Ayırt etme gücü)
(Medeni Hukuk) 2) Majority (Art. 11) (Erginlik)
3) Not being under guardianship (Art. 405)(Kısıtlı olmama/Vesayet altında olmama)
 Capacity to act has different aspects:
1) Capacity to enter into legal transactions personally.
 Legal transaction is a legal act, consisting of declaration of intention aiming to a
legal result. For example: A person who does not have capacity to act, is not entitled
to enter into contractual relations. If he/she attempts to do so, the contract will be
void or voidable.
2) Capacity to dispose: Being capable of making direct effect on own rights with own
actions.
3) Capacity to be liable from torts
4) Capacity to bring an action (before a court)
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 Book 2 (Part 2)- Family Law (Art. 118- 495)

 Family is a unit of society, which is entitled to be protected by law (Turkish Constitution
Civil Law
Art. 41, Universal Delaration of Human Rights Art. 16).
(Medeni Hukuk)
 regulates the relationships among persons within a family.
 Such as engagement, marriage, divorce, paternity, parent-child relations, child
custody, adoption, guardianship (vesayet)
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 Book 3 (Part 3)- Law of Inheritance (Succession) (Art. 495-683)

 Even after death, the law continues to regulate the relationships with the material world.
 The person is called deceased (miras bırakan) after death and the total property is called
estate (tereke).
 This field of law determines the rules regarding the estate of the deceased, who will inherit
the property and how it will be divided between heirs (mirasçı).
 Turkish law accepts two types of heirs:
 Statutory heirs (yasal mirasçılar):
Civil Law  Statutory heirs and their inheritance rights are determined by the Civil Code.
(Medeni Hukuk)  Descendants (altsoy) are the first in line, and if there is no descendant of the
deceased, parents are the second in line.
 Appointed heirs (iradi mirasçılar):
 Appointed heirs are expressly specified by the deceased (before death) in a
testament or contract of inheritance.
 By this way, a person can choose freely his/her heirs and method of distribution
of the estate already his/her lifetime.
 However, in Turkish law, some statutory heirs are protected by law through
reserved (compulsory) portions. Therefore, the testamentary freedom of the
deceased is limited by the rules regarding reserved portions of certain heirs.
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 Book 4 (Part 4)- Law of Property (starting with Art. 683)

 The right to have property is protected by law.
 Universal Delaration of Human Rights Art. 17, European Convention on Human
Rights Protocol No.1.
 Turkish Constitution Art. 35 (the right of property and inheritance):
«Everyone has the right to own and inherit property. These limits rights may be
limited by law only in view of public interest.
The exercise of the right to own property shall not be in contravention of the public
interest.»
Civil Law  According to Turkish Civil Code Art. 683:
(Medeni Hukuk) «The owner of property has the right, within the limits of the law, to enjoy and
dispose of it at will.
He/she has the right to demand it back from anyone who wrongfully possesses it
through legal action (rei vindicatio) and to take measures to prevent any unlawful
interference with the use and enjoyment of the property.»
 Law of Property determines the rules regarding
 acquisition and loss of property rights,
 the content and limits of rights over movable (taşınır) and immovable (taşınmaz)
things,
 the registration and transfer of property and mortgages (rehin, ipotek)
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 Law of Obligations (Borçlar Hukuku)

 Turkish Code of Obligations is the fundamental code and is regarded as an integral part of
the Turkish Civil Code.
 Obligation means anything a person is legally bound to do or not to do.
Civil Law  Obligations are divided into three categories according to their origin:
(Medeni Hukuk) 1) Obligations of contractual origin (sözleşme)
2) Obligations in tort (haksız fiil)
3) Obligations arising from unjust enrichment (sebepsiz zenginleşme)
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(Medeni Hukuk)
Law of Obligations

1) Obligations of contractual origin

The elements of a valid contract:
(sözleşme)
 A contract is a legally binding
1) Mutual consent of the parties must be free of any
agreement, which creates rights and
defects (error, fraud, threat).
duties between parties.
2) The parties of the contract should have capacity to act
 The formation of a contract occurs
3) The subject matter of the contract should not be
through offer and acceptance (mutual
contrary to the imperative provisions, morality, public
consent of the parties).
order, personality rights or should not be impossible
 Ex: A proposes to sell his car for
(Turkish Code of Obligation Art. 27)
500.000 TL and B agrees to buy it for
4) The contract should be in accordance with form
this price. Then A is under the
requirements, if it is required by law. In principle (the
obligation to transfer the ownership of
freedom of form), contracts are valid without any
the car and B is under the obligation to
special form, but in some cases a special form is
pay the price. If one of the parties fails
required by law. This means as a rule, a verbal
to fulfil this duty, then the contract will
agreement also creates a legally binding contract.
be enforced by a court upon an action
of the other party.
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Civil Law B R A N C H E S O F P R I V A T E L A W

(Medeni Hukuk)
Law of Obligations

The most important principle of  The principle of freedom of contract is one of the main
Law of Obligations is the freedom principles of the Law of Obligations.
of contract.  Turkish Code of Obligations Art. 26 states that the parties may
freely determine the content of the contract within the limits of
the law.
 According to this principle, within the limits of the law, persons
are free
 to conclude a contract or not to conclude a contract
Limits of the principle of freedom of contract
 with whom to conclude a contract
(Turkish Code of Obligations Art. 27)
 to determine the content of the contract
A contract should not be contrary to these, otherwise
 to determine the form of the contract
such a contract will be void:
 to determine the type of the contract. The parties do not
1. imperative (mandatory) provisions
need to select one of the contract types, which are
2. morality
regulated in the Turkish Code of Obligation and free to
3. public order
create their own contract within the limits of the law.
4. personality rights
5. the subject of the contract should not be
impossible
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(Medeni Hukuk)
Law of Obligations

2) Obligations in tort (haksız fiil) 2) Obligations arising from unjust

Tort is not based on a voluntary agreement enrichment (sebepsiz zenginleşme)
between parties. On contrary, it is an A person who is unjustly enriched at the
obligation imposed by law, when a person expense of another is required to pay it
causes damage to personal or property back.
rights of another person. Ex: If A pays his debt for the second time,
Ex: A reckless driver A, drives very fast B is enriched unjustly. In such a case, A
and hits into the car of B and gives him may demand from B that he pays the
damage. According to law, in such a case, amount back.
A has to pay this damage, he caused as a
result of recklessly driving.
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 Because of the special interests of the commercial life, there is a need for special rules.
 Commercial law is the branch of law applicable to the commercial relations and the main code
for this branch is the Turkish Commercial Code.
 This code has an Introductory Chapter as general principles and six Books:
 (1) Commercial Enterprise (Ticari işletme)
 (2) Corporate Law (Commercial Partnerships) (Ticaret şirketleri)
Commercial Law  (3) Negotiable Instruments (Kıymetli Evrak)
(Ticaret Hukuku)  (4) Transport Business (Taşıma İşleri)
 (5) Maritime Law (Deniz ticareti)
 (6) Insurance Law (Sigorta hukuku)
 Commercial enterprise (ticari işletme) is an enterprise, which aims at making profits
exceeding the limits of a small scale trader (esnaf). This limit between commercial enterprise
and small scale trader is determined by law.
 There are two types of merchants (tacir) under Turkish law.
 Individual merchant (gerçek kişi tacir)
 Legal person merchant (tüzelkişi tacir)
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 Commercial Partnerships
 Corporations (Sermaye şirketleri): Capital is more important than partners, meaning that
the liability for the corporation’s debts and obligations is limited by the amount of its
capital, no personal liability for the individual partners.
Commercial Law  Joint Stock Companies (Anonim şirketler)
(Ticaret Hukuku)  Partnerships with limited liability (Limited şirketler)
 Limited (commandité) partnership whose capital is divided into shares (sermayesi
paylara bölünmüş komandit şirket)
 Partnerships, which the partners are more important than the capital (şahıs şirketleri),
meaning that there is personal liabiliy of the individual partners.
 General partnerships (kollektif şirket)
 Limited (commandité) partnerships (adi komandit şirket)
 Co-operative partnership: This type of partnership has its own statute (Kooperatifler
Kanunu)
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 This branch of law deals with the problems arising from conflict of laws, where
there is an international element within the dispute.
 The aim is not to solve the dispute, but to determine, which state’s law is applicable
to the dispute. This process has two aspects:
Private International Law  Which state’s court has jurisdiction to decide the case (the legal power to hear
(Uluslararası Özel Hukuk) the case)
 Which state’s law will be applied to the case, ex. Turkish law, German law,
Swiss law…
 The fundamental code is Turkish Code of Private International Law.
 This branch of law also deals with the law of nationality and law of aliens.
 Citizenship can be acquired either by
 Blood relations, through parents (primarily applied in Turkey)
 Being born in a certain country (ex. USA)
 Being conferred with citizenship upon an application (naturalization)
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Civil Procedure  This branch of law regulates the enforcement of civil claims through private actions
(Medeni Usul Hukuku) before courts of law.
 Public interest is not the main concern.
 The court is bound by the claims of the parties and cannot decide for amounts more
that demanded.
 The fundamental code of this branch is Code of Civil Procedure.