INTRODUCTION TO LAW

Summary of the 1st chapter

Social Order Rules

Introduction
Wherever there is a society, there is law. Law occurs along with society. Think Robinson Crusue
and his friend Friday. Before Friday reached the island, Robinson could do whatever he wanted.
However, after Friday’s arrival, the need for the law became required.

Society and Order

- Rules are created to assure harmony and avoid chaos among people who live together. Without
any order, society can’t serve its purpose and chaos emerged. These rules may be called social order
rules.
- Human is a socio-political animal. Surviving in nature entirely alone is almost impossible for
them. To meet their need and to be protected from the dangers of the natural environment, people
should live in a society.

Social Order Rules

Social order rules are composed of religious rules, customary rules, and moral rules, legal rules.

Religious rules
It includes not only the rules found in sacred texts, but also the more practical rules developed by
religious groups themselves.
They are hardly altered or changed.
Its sanctions will be applied after death.
Its principles are single-sided.

Customary rules
If habits (daily behavior of people) become antique, compulsory, consistent, and continuous; they
are considered as custom.
Sanctions of custom may be expressed by social pressure imposed on individuals (e.g.
condemnation, linch)
Custom doesn’t change fast.
It compels everybody to act in a definite way.

Moral rules
Moral rules are generally accepted standards of goodness and rightness.
They are single-sided rules and don’t have any compulsory sanctions.
They don’t generally confer bilateral rights and obligations.

Legal rules
The state is the sources of law. In case of non-compliance, it implements the rule by force.

The Relationship Among Social Order Rules

- They are often in harmony. Moreover, they often affect each other. Marriage is an example of the
way in which social rules are often in harmony.

The relationship between law and religious rules

- Similar rules could be seen sometimes in legal and religious rules.
- There could be no relation between legal and religious rules (secularism)

The relationship between law and moral rules

- Similar rules could be seen sometimes in legal and moral rules. (e.g. to rescue a person injured in
an accident)
- The law could make direct reference to moral rules in some cases (e.g. good faith)
- Some moral rules are not regulated as legal rules or in contrary, some legal rules are irrelevant to
moral order. (e.g. selfishness is contrary to good moral but lawful)

The relationship between law and customary rules

- Judges may be allowed to apply customary rules when the statues are silent.
- A custom contrary to statutory law can never be legally valid.

Definition of Law
There is no generally agreed definition, though many legal writers have attempted to define law.
Dictionary definition: a rule or set of rules, enforceable by the court, regulating the government of
the state the relationship between the organs of the government and the subjects of the state and the
relationship or conduct of subject towards each other.
The word of law comes from Arabic in a single form (right = hukuk).

Main Objectives of Law

The main objective of law is to provide justice.

noun: law; noun: the law

1.
the system of rules which a particular country or community recognizes as regulating the actions of its
members and which it may enforce by the imposition of penalties.
"shooting the birds is against the law"
Similar: rules and regulations , system of laws, body of laws, constitution, legislation, code, legal code,
charter, jurisprudence
Opposite: anarchy
an individual rule as part of a system of law.
plural noun: laws
"a new law was passed to make divorce easier and simpler"
Similar: regulation, statute, enactment, act, bill, decree, edict, rule, ruling, resolution, promulgation,
measure, motion, dictum, command, order, stipulation, commandment ,directive ,pronouncement,
ratification, proclamation, dictate, diktat, fiat, covenant, demand, by-law, ordinance, ukase,
pronunciamento
systems of law as a subject of study or as the basis of the legal profession.
"he was still practising law"
Similar: the legal profession, the bar
statute law and the common law.
something regarded as having binding force or effect.
"he had supreme control—what he said was law"
the police.
"he'd never been in trouble with the law in his life"
Similar: the poliçe, the officers of the law, the forces of law and order, law-enforcement officers, police
officers, policemen, , policewomen, the police force, the constabulary, the cops, the fuzz, the boys in
blue, the long arm of the law, the (Old) Bill, , the bobbies, the busies, the bizzies, the coppers, the
rozzers, the force, plod, PC Plod, the heat, the pigs, the filth, Babylon,
 Main Types of legal Sanctions

Characteristics of
legal rules

- Legal rules are

common and general; objective and non-personal; abstract and steady

Legal Sanctions
By the court: Imprisonment, fine, compensation, revocation, probation, nullity, void,
annulment

By the administrative organs: Disciplinary, fine, withdrawal, revocation, prohibition,

suspension, tax penalty

Sources of Law

Hierarchy of law

The hierarchy between rules is also a result of the legal order established. Each rule takes its legal
content and feature from the rule above itself.
Mahmoud
Almoalem
LAW 251
Legal Systems

Systems of Laws (Summary of Chapter 2)

Legal system: Operating set of legal institutions, procedures and rules.

Legal systems in the world fall into one of four categories:

1- Common law (England).

2- Civil law (Europe).
3- Religious law.

4- Socialist law (Note: this kind of law system was mentioned in the slides but the book did not talk
about it at all).
In fact, these divisions are not as clear-cut as they might seem. Therefore, there are so-called
“Mixed” or “Hybrid” systems. Mixed systems are basically those countries which use a mix of
features from common and civil law systems.

The features of each legal system:

1- Common Law System:
- Other names of common law (case law, judge-malde law, Anglo-Saxon law and Anglo-American
law).

- Common law is the term used indicating courts as a focal point in the common law method, process
and tradition.

- The UK is more familiar with common law system.

- Common law roots go back to the middle ages (system of writs, courts of law and courts of equity)
until this system was abolished in mid-19th century.

- While common law relies on some scattered statutes (legislative decisions), it is largely based on
precedent. Precedent means the judicial decision that has been made previously in similar cases.

- Common law was developed by custom. Later when there will be written laws, the courts continued
to use the laws of customs too.

● The main features of common law:

a- It does not always have a written constitution.

b- It is generally uncodified(there is no comprehensive compilation of legal rules and statutes).
c- The significance role of presiding judge in determining precedents to be applied in the decision
of each new case.
d- It functions as an adversarial system (contest between two opposing parties: jury and jury).
e- The native role of lawyers in legal proceedings.
f- Extensive freedom of contract
g- Everything is permitted as far as it is not prohibited by law.

2- Civil Law System:

- Other names of civil law (Continental European law or Roman law system). - Civil law roots go
back to the time of Roman empire.
● The main features of Civil Law:

a- There is generally a written constitution based on specific codes. So, civil law is codified.
b- The role of a judge's decision is less crucial than in common law. The role of the judge in civil
law is to establish the facts of the case and to apply the provisions of the codes. In civil law judges
are always described as investigators.
c-Lawyers have less central role than in common law. Their role basically is to advise their clients
on points of law and to prepare legal pleadings for filling with the courts.
d- There are specific courts to the underlying codes (EX: constitutional court, administrative court
and civil court systems).
e- Less freedom of contract.
f- Legislation (written sources) is the primary source of law.
g- Courts have to operate extensively on the basis of general rules and principles of the codes.

3- Religious Law System:

• - It is that legal system which uses religious system or document as legal source.
• - There are four main religious law systems:

1- Canon Law (Christianity): Law of the Roman Catholic church and it uses bible as source
of law.

2- Jewish Law: Torah and Telmod as main sources of law.

3- Hindu Law: Vedic literature, the law of Manu, Dahrama as main sources of law. This law
is going to be replaced in the colonial period by Anglo-Sexan law which was made by
British.

4- Islamic Law: Quran, Sunnah, Quiyas and Ijma as main sources of law.
__________________________________________________________________________
_

Several concepts:
Justice: The correct outcome of legal dispute.
Law: The system of binding rules
The purpose of every law must be to uphold justice and that is why they say “Justice under
the law”.
__________________
Legal Positivism:
The question of law is not what the law ought to be, but rather what the law actually
considered as law.

Legal positivism is a school of jurisprudence whose advocates believe that the only legitimate
sources of law are those written rules, regulations, and principles that have been expressly enacted,
adopted, or recognized by a governmental entity or political institution, including administrative,
executive, legislative, and judicial bodies. It is a view that law is a social construction.
Therefore, from a positivist perspective, it can be said that “legal rules or laws are valid not
because they are rooted in moral or natural law, but because they are enacted by
legitimate authority and are accepted by the society as such”.
According to this view, laws shall be implemented as long as they are in effect and as long as they
are not amended (changed) regardless of whether these laws achieve justice or not.
Natural Law:

It has a moral dimension. They seek to define law not simply as it is, but also how it ought
to be. They believe that law has its ideal values such as justice, equity and fairness.
According to this view when laws fail to comply with natural law (natural justice), they are
unjust law and need to be disobeyed.

__________________
Domestic Law (internal affairs of a state):
The rules applying to legal issues within the jurisdiction of a particular state. It comes from
legislature and custom.Other names: National law, Internal law, municipal law.
International law:
The rules which organize the legal relations between and amongst states and other members
of the international community. It consists of treaties and customs.
The relationship between domestic and international law:
1- Dualism (pluralism): The rules of international law and domestic law exist independently
and separately. So, they do not affect each other and they do not constitute a unified system
of law. Positivists usually uphold dualism in the relationship between domestic and
international law.
2- Monism: Domestic and international law are part of the same legal system. So, they both
constitute a unified law system.
________________
Substantial law (Statutory law): The body of legal rules that determine rights and impose
duties and obligations.
Procedural law: the rules which provide the method for enforcement of rights.

For Example:
A law that makes burglary a crime is a substantive law and the law that gives anyone accused of
burglary the right to a fair trial is procedural law.
Introduction to Law - LAW251
2020-2021 / Fall
Zehra Badak
Summary of 3rd Chapter
Application Of Legal Rules
Methods of Reasoning
Provisions of laws two components: letter and spirit.
Letter of law: Law’s literal meaning.
Spirit of law: General meaning or purpose of law, as opposed to its literal content, in other
words the intention of law.
Why do we need to interpret legal rules?
1. The letter and spirit of a law might differ. Sometimes following the letter of law might
mean that we don’t follow the spirit of law or vice versa.
2. The vague and uncertain nature of legal rules gives the opportunity to interpret.
3. Texts cannot carry all possible details of a rule, they contain the basics. In order to reach a
conclusion for a detailed condition, interpretation is needed.

1. APPLICATION OF LEGAL RULES

(The process will be explained by an example in which a student is found with a textbook during an
exam)
1.1. Ascertaining the Applicable Rules (Claim): Legal rules in force at a given time may be
various forms such as laws, regulations, by laws, customs, etc. You need to find the applicable rule
for the specific situation you want to apply a rule, in order to start the process of application. (Exam
instructions to be controlled)
1.2. Determining Facts (Evidence): The facts that will effect the application process should be
determined. (Is the person caught a student? Is the book found a relevant book to the exam in
process?) However, some facts don’t need to be proven such as:
- Facts commonly known
- Facts known to the organ ex officio
- Facts acknowledged by the other party.
In a private court, the plaintiff needs to provide the court with the proof.
In a criminal court, the prosecution needs to provide the court with the proof.
1.3. Applying the Relevant Provisions of Rule (Reasoning)
The court reaches the legal conclusion by applying the relevant portions of law and taking all the
evidences and arguments into consideration. By three methods:
 1. Syllogism (Mukayese): The conclusion is reached by using two different facts and
comparing them.
2. Argumantum a Contrario: Proving something by its contrary situation. If something is
stated to be legal in the rule, all other situations that is left outside is illegal. For instance,
the rule tells the people who can marry each other. With an argumantatum a contrario, we
can make an inference that those who weren’t mentioned cannot be married.
3. Analogy (Kıyas) : Using an similar -but not same- regular condition to make a conclusion
for your case. It is for the times when there is a gap in law. For example there is a law for
surnames not to be ridiculous words, but for the names there is no such rule. By analogy, we
can also say that names also should not be repugnant or ridiculous words.
- Nullum crimen sine lege = no crime, no punishment without a written law.
- Iura novit curia = the court knows the law
- da mihi factum dabo tibi jus = Give me the facts, I will give you law
- A fortiori in Latin literally means "from the stronger (argument)". The term is used
when drawing a conclusion that's even more obvious or convincing than the one
just drawn.

2. BURDEN OF PROOF
2.1. Burden of Proof In Civil And Criminal Cases
The one that is presenting the claim should prove its claim to be true. It is the prosecutor in the
criminal cases and plaintiff in the private cases.
Plaintiff: The party that initiates the law sue. Carries the burden of proof.
Defendant: The party who defends themselves in front of the court. He also has the burden
of proof to prove the plaintiff wrong.
(Plaintiff carries the burden of proof in the first place. When he proves, the defendant must
bring proof to defend himself. So, burden of proof changes hands.)
Prosecutor: is like a lawyer of public. In criminal cases the claim is done by the prosecutor.

3. PRESUMPTIONS (Karine)
There are some presumptions that is accepted by the court without any evident.
1. Statutory (Legal) Assumptions: Assumptions made by the law. For example father of a child
that was born in a marriage is the husband. The husband doesn’t need to prove that he is the
father, this is already accepted by law. Whoever claims otherwise, they should prove it (the
claimer). Statutory assumptions can be both rebuttable or irrebuttable
2. A Rebuttable Example: A merchant’s all interactions are accepted to be commercial (statutory
assumption). But he can prove otherwise by showing that he bought a car for his son which is
not a commercial reason.
3. An Irrebuttable Example: A sexual interaction with a child younger than 15 is crime. Even if
the parties claim the 14 years old was willing to, this cannot be proven otherwise and the crime
is done.
Note: A presumption cannot be issued by a directive or a regulation, it has to be done by law.

4. INTERPRETATION OF LEGAL RULES

Why interpretation is needed was mentioned at the beginning. Now,
Interpretation Methods:
Textual Interpretation: Grammatical interp. the ranking of the rules, the words used etc
examined.
Historical Interpretation: To check what happened before about the same question. How
these legal rules were prepared before.
Logical Interpretation: When there is a gap of a law’s provision, that is to be filled by logical
interpretation, the judge analyzes the law in logical manner and corrects the errors and fills
the gap.
Teleologic Interpretation: Necessities of the current time. Not the causes but the outcomes of
the law are examined.
Unrestricted Interpretation: Interpreting the law according to the actual event and the needs
created by the conditions. Difference between teleological and this is in the fact that the
proponents of the unrestricted method argue against any reliance on the written word of the
law.
Systematic Interpretation: Rules have a systematic way to be written. Alongside its content,
its systematical shape is also important. This is also examined and interpreted.
Conceptual Interpretation: Rule to be interpreted just as a concept, regardless from the
realities of society and time.
Interest Interpretation: The balance of the interests and for whose advantage these
regulations are done.
Chapter 4 by Yusuf burak

Introduction to Law (Branches of Law).

- Public law is the law that concerns the position of the Roman State,
- Private law is the law that concerns the interest of the individual citizens. (ULPİAN, Roman
Scholar)
Corpus Iuris Civilis (famous codes of law from ancient’s Rome)
When Justinian became an emperor of the Byzantine Empire in 527 he had three ambitions
1-) He wanted to re-conquer the former West-Roman Empire
2-) He wanted to restore unity in the church
3-) He wanted to get things organized in the legal field.
*The legislation project started in 528 and he established a committee in order to make a new
collection of imperial constitution.
*The commission finished the Codex Iustianus. The Codex was a practical handbook for judges,
officials and litigators that contained empire’s most important law in one place.
*The next step was to remove the remaining uncertainties about classical law. Therefore, they
published a collection of fifty constitutions and it is called ‘’quinquaginta decisiones’’
*After that, the second law of commission finished their project after three years and it was
published and the name of Digesta.
*At the beginning of 534 Justinian decided that a new edition of the Code was needed for some
reasons.
-The first Code was no longer up-to-date.
-During the copying of the first Code abbreviations and figures had been used and because of that
the text was not quite reliable.

Criteria For the division of Public-Private Law

1-) Public or Private Interest: Private Law would apply to legal relationship between individuals
who seek to protect their own benefit such as a contract of sale or an employment contract and
public law would regulate relations between individuals and State or between public authorities
which seek to protect public interest themselves.
*Public Law norms directly or indirectly protect the general interests of the community as such
(public interest), the norms of private law aim to protect the individual interests of its subjects.
*In the modern day, there are many developments so it is not easy to distinguish public interests
from private interests.

2-) Free-will Criterion: In private law, the parties of legal relations act with their own free will;
that means to act as one desire. However, in public law, individuals do not have the freedom to
regulate the conditions of the legal relations in which they take part.

3-) Sovereignty Criterion: This criterion is based upon the idea of state authority. The advocates of
this criterion accept the opinion of that the relations in public law are regulated by the sovereignty
of the state which is the supreme political authority imposing everybody to act in accordance.
4-) Equality Criterion: In private law, the accession of the contracting parties has equal powers.
No one has a privilege against the other party and inferior-exterior relationship with each other.

On the other hand, whatever criteria are used there always are a large section of legal rules which
cannot be put in one category or the other without any objection.

Extra Notes about them (This part is not included in book but the slide has it) Comparison between
Private-Public Law
1-) Precedence: It is possible to argue that private law has a lower rank from public law
2-) Mandatory Regulations: All of the public law rules are mandatory but the private law does not
have mandatory rules as much as public law.
3-) Public-Private benefits: Public benefits are more dominant than private benefits.
4-) Duality/Singularity: There is duality in private law but there is not it in public law.
5-) Execution: In public law, authorities have the right of execution but in private law people do not
have.
6-) Compliance with law: At the beginning, you have to accept that the action of public authority is
right. You have to obey it. In the public law, after the court order that you look it comply or not
comply with the law.
7-) Ex-officio application: The public law rules will be applied directly.
8-) Authorized court: For instance, Tax disputes will be solved in Tax court or criminal disputes
will be solved in Criminal court. However, the private law that the disputes will be solved within
the civil courts.
9-) Development: private law is more developed than public law.

Public law comprises constitutional law, administrative law, tax law and criminal law, as
well as all procedural law. (Laws concerning relationships between individuals belong to
private law.)
YILMAZ ACAR
*If you detect any missing or inaccurate information please let me know.
*The following questions are answered on the first page;
-Why does humankind need a constitution?
-What does the constitution mean?

5-CONSTITUTIONAL LAW
Unit-1: Meaning of constitution.
Unit-2: Types of constitution
Unit-3: Constitutionalism in the world and Turkey

GLOSSARY
-Constitution: is the fundamental political principles on which a state is governed, especially when considered as embodying the
rights of the subjects of that state. Therefore we can say a constitution is a body of law that attributes power to public authorities, that
regulates the fundamental relations between public authorities and that regulates the fundamental relations between the public authority
and the individual itself. Constitution is actually the mother of all laws. So no law can be against the constitution therefore it is
fundamental and supreme. In addition to that the constitution can be either written or unwritten. The constitution also refers to the
composition of the government.
-Government: is the executive policy-making body of a political unit, community, etc; ministry or administration.
-Republic is a state or nation in which the supreme power rests in all the citizens entitled to vote (the electorate) and is exercised by
representatives elected, directly or indirectly, by them and responsible to them.
-Freedom. is the quality, especially of the will or the individual, of not being totally constrained; able to choose between alternative
actions in identical circumstances
-Article: is a clause or section in a written document such as a treaty, contract, statute etc.

Main attributes of constitutions:

-Fundamental law (mother of all laws)
-Can be written or unwritten
-Composition of government
-Rights of citizens
-Relationship between government and citizens
-Supreme

The constitutional law therefore can be divided into two branches;

1- Institutional law
2- Human rights.

In a modern constitutional literature therefore it has three distinctive meanings;

1- It is the act of constituting which means making a constitution
2- It refers to the system of rules for the limitation of governmental power more to the institutional law.
3- It is more about sovereignty. The sovereignty of the state.

Content
Topics of Constitution:
-Organization and form of administration
-Functions of different organs
-Fundamental rights of citizens
-Relationship of the government with people
-Procedure of the governmental transactions

There are specific parts within a constitution;

1-Preliminary
2-General principles
3-Institutions of state
4-Fundamental rights and freedoms
5-Effectiveness and changing
These are the topics actually referred to under the constitution of Turkish republic. These topics are mainly accepted in most of
the written constitutions of the countries. Not only in a constitution but if you look at for instance the Turkish code of obligations
or if you look at the Turkish Civil Code or Turkish Criminal Code. This is a very standard way of lawmaking.
We can always see a preliminary part sometimes it is very short. You will have the general principles. After that you'll have as the final
part the temporary articles or the effective date of these articles and in between you'll see the specific topics given as one chapter after
another for that specific law. Just like your book, your book will have an introduction and then it starts giving all the issues one chapter
after another. It is very similar to that kind of separation.

1-In Preliminary chapter which is also called a preamble. Wan see the main ideology of that state. The ideology means the approach of
that state to the political rights or fundamental rights or the thinking and the social rights of its citizens. It generally explains why this
constitution is made. Some constitutions sometimes do not have a preliminary part. Some preambles are very small and very summarized
and some preambles are very long. The Turkish constitution is an example for a long preliminary. It explains the approach of the
constitution to the sovereignty of the nation, the ideas and the fundamental rights of its citizens.
It is also um discussed and argued whether this preliminary part is actually included within the constitution. However in our general
principles this preliminary is referred within the article and made a part of our constitution.

2-The General principles chapter; mainly explains whether that state is a unitary or a federal state, a monarchy or a republic state, a
secular or religious state. The capital city of the state, the original language and the symbol of the state, the flag and the owner of the
sovereignty.
According to our constitution;
Article 1; Shows us the form of the state. It says “the state of Turkey is a republic.
Article 2; Sets the characteristics of the republic it says “the republic of Turkey is a democratic, secular and social state governed by rule
of law within the notions of public peace national solidarity and justice respecting human rights, loyal to the nationalism of Atatürk and
based on the fundamental tenets set forth in the preamble”. As you see by directly referring to the preamble within article 2 our
constitution makes the preamble at the indistinctive part of the constitution. So then we are trying to interpret the regulations within the
constitution, we not only take the articles into consideration but also the preamble itself.
Article 3; The integrity, official language, flag, national anthem and capital of the state is regulated as follows; “ The state of Turkey with
its territory and nation is an indivisible entity. Its language is Turkish. Its flag, the form of which is prescribed by the relevant law, is
composed of a white crescent and star on a red background. Its national anthem is the “Independence March”. Its capital is Ankara.
There is an additional article here on the Turkish constitution as irrevocable provisions.
Article 4; The provisions of article 1, 2, 3 are accepted as that they cannot be amended or proposed to be amended.
So the constitution has set forth the main political and main ideology of the state within its general principles and it is very similar to most
of the states that have a written constitution.

3-Institution of state chapter; It mainly regulates the constitution of how do you constitute a state, what are their organs, what are their
authority and how are they related to each other. As you see it includes;
-The division of powers among various departments.
-Organization of particular agencies through which state manifests itself.
-The extent and duration of their authority.
-The modes of appointment or election of public functionaries.
-The constitution of the electorate.
We should mention here the Montesquieu's division of power theory. According to Montesquieu; the authority of legislation, the authority
of administration and the authority of jurisdiction must be separated from each other. These theories affected for a very long time the
modern legal systems. Although nowadays it is discussed however still it has a very distinctive power on legal theory.
As you can see our constitution with the general principles has accepted this division of powers. The legislative authority is regulated
under seven article 7, executive administrative authority and governing authority regulated under article 8, and the judicial authority is
regulated under article 9 of our constitution.
As for the article 7 8 and 9; The Grand National Assembly of Turkey is decided as the legislative power and it cannot delegate its power
to a third party.
The executive power is given to the president of the republic and the council of ministers. (we do not have that council we have the
president of the republic) and
The judicial power is given to the independent and impartial courts of the Turkish nation.
We also have some relevant regulations about the freedom of legislative power. It says that; “no other authority can impose any kind of
decision or any kind of suggestion on the judicial power”.
“Legislative and executive organs and administration shall comply with all the court decisions; and they have to respect all the decisions
and cannot delay the execution of the decisions.

Fundamental rights and freedoms chapter; It is related to the human rights law of the constitution law. Fundamental rights and freedoms
are not only regulated as the rights for the citizens but also as a duty for the state. Fundamental rights are all protected by the constitution,
they cannot be limited, they cannot be taken away. However they are not also absolute. All of the constitutions have some limitations on
these fundamental rights but there is a greater interest of the public and the state especially during a kind of terrorist or a kind of condition
that will lead to anarchy. This is also to protect benefits of the public and other fundamental rights of the other individuals.
Under Turkish constitution you can see the personal inviolability, corporeal and spiritual existence of the individual, the forced labor,
personal liberty and secular security, the privacy and private life, freedom of religion and conscience, freedom of residence and
movement, freedom of communication, freedom of thought and opinion freedom of expression, freedom of science and arts, freedom of
praise, the rights on the collective label labor, the the freedom to work, the freedom to contract, the social and economic rights, the
protection of the family the right to property. Those are all definite fundamental rights that are protected under the law.
Also there are some duties like; the duty to pay taxes, duty for national services right to vote (it is a right and also a duty). Those are all
regulated under the fundamental rights and freedom part of the institution.
What do you mean when you say spiritual existence of the individual? Kişinin dokunulmazlığı, maddi ve manevi varlığı. Personal
inviolability corporeal and spiritual existence of the individual. So you are protected not only in material way but also in your spiritual
sense.
These are generally regulated very similar in most of the continental countries and also you can say in united states and so. Because
fundamental rights are very similar. The general principles are mainly reflects if it is a federal state if it is a republic or if it is a secular
state or an islamic state or those are all given generally under just similar topics.

Effectiveness and changing chapter; Generally the constitution making, governments are the institutional governments, they constitute the
state. So the main constitution of a state a country should not be easy to alter should not be easy to amend. But if you close all the ways to
amend it then that constitution will fall back from the current developments. Therefore there has to be a balance for the protection of these
rules and also there has to be a way to amend all these rules.
Under this effectiveness and changing chapter we see all these constitutions, all these regulations; how we apply these rules regulated
under the constitution, why will they come into force and how can we amend them. This will give you the procedures and the quora-
quorum it means the percentage that you need to amend an article for the constitution. They are all regulated under this final chapter in
the effectiveness and changing.

The essentials for a good constitution

Clarity
Brevity
Comprehensiveness
Flexibility
Declaration of rights
Independence of judiciary
Directive Principles of State Policy
-Clarity; which means the articles of a constitution must be clear for a regular ordinary citizen to understand. If you make a very complex
and very high language constitution then an ordinary citizen may not be able to understand. Only the legal scholars or some people that or
maybe even the experts can only understand. However a constitution is as you see actually about the very relationship of the citizen and
the state and the duties of the state and the freedoms and the rights of the citizens and the duties of the citizens. So it should be easy for an
ordinary citizen to understand.
-Brevity; The constitution should not be too long or too short. It should be on a point that covers the necessary ,essential topics like
politics, philosophy, the organization of the state, the duties and the relationship between the state and the freedom of the rights of the
citizens. It should cover all those issues. It should not leave any open part to interpret. However it should not be too long trying to cover
all of the issues. All relevant topics can be covered by the law or any other bylaws directives and so on but it should be short enough to be
able to understood but long enough to cover necessary points.
-Comprehensive; which means it should be applicable to all of the state. If there's a federation then the federation should be governed
with this constitution by giving the relevant references to the relevant federative legislation.
-Flexible; which means it should be able to amended and applied to any necessity any necessary condition and could be amended when
needed.
-Declaration of rights; the fundamental rights of the citizens must be declared within a good constitution.
-Independence of Judiciary; There has to be the respect to the independence of the judiciary if you want to have a modern and good
constitution.
-The Directive principles of the state policy; must be regulated and the constitution should give some directives to the governors while
applying while using their authority over the citizens. So it should also protect the rights of the citizens.

The classification of constitutions

Here we should refer to Aristotle. He is the one that classifies constitutions with a scientific method. According to his method, the
constitution can be divided into different classifications by looking at the rule ruling way, pure form of seeking the common welfare and
perverted or distorted form of common welfare.
The very first classification of these constitutions were done by aristotle. But aristotle's perspective was more of a political
approach therefore it is also called political constitutionalism.
According to this classification if the state is ruled by only one the pure form will be the monarchy and the distorted form will be a
tyranny. If the state is ruled by a few the pure form will be aristocracy and the distorted form will be oligarchy. If the state is ruled by the
many the perform will be the polity which everyone just joins to the governance directly all of the parties and the distorted form will be
the democracy. This explains actually why democracy is called the best out of all the worst. Because if you want a ruling by many you
cannot in our society in this number of citizens you cannot allow everybody to join in the ruling. Therefore you have to have a voting
system and a democracy. However this approach is misplaced by a more modern approach.
However in the modern system the constitutions are clear classified in a different way;
Classification
IN TERMS OF CONTENT: written / unwritten
IN TERMS OF PROCEDURE: soft / rigid
IN TERMS OF METHOD: frame & regulator

1-Written and Unwritten Constitution

When we look into them we can see that the unwritten constitutions in other words traditional constitutions are all seen under the
common law. As for the common law we said that we were mentioning they do not have a solid and definite constitution.
However they have lots of documents that that all together forms one constitution. In that respect there the constitution was a
concept that regulates all these states organs, institutions, fundamental rights of the citizens and everything that the written
constitution. Therefore unwritten constitutions are considered as a body of constitutional law. British constitution in that respect
is a very well-known unwritten traditional constitution which actually consists of magna carta, petition of rights, bill of rights,
parliament acts, citizenship act, human rights act, and political practices of British nations.
The Advantages and Disadvantages of a unwritten constitution;
The Advantages/merits of an unwritten constitution
1. They are quite easily adaptable to changing circumstances. Law can be added as and when required. There is no limitation of
any pre- documented constitutional law. Thus, they are progressive.
2-They are flexible and people can bring about changes without undertaking revolutions. As these constitutions evolve
themselves with the changing time, public opinion finds a suitable place in the constitution and it terminates the possibility of
revolution.
3-Unwritten constitution can_undergo changes, without the basic framework being sidelined. This is useful especially in case of
unforeseen situations.
4- Historically they seem to stand the test of times and keep up the traditions of a nation state as it is said about the British
constitution that it has an unbroken history. It's A continuous process of development.

The disadvantages/demerits of an unwritten constitution

1- The serious defect of an unwritten constitution is that it is vague and indefinite. Common man may not understand the
constitutional system of the country. He cannot refer to any document in which he can find all that he requires to understand the
structure of the ‘government of his country. An unwritten constitution requires a very high degree of political consciousness
among the people to ‘understand its spirit, and ordinarily that is not easy to find,
2- Sometimes unwritten constitutions are quite unstable,
3- The judiciary may play more role than is warranted. It becomes the playthings of judicial tribunals. The judiciary can interpret
the ‘unwritten laws as it suited to its desire and will.
4-It also contended that an unwritten constitution is not suited to democracies. The massed need # well-defined document under
which they have to live. They may be suited for aristocratic societies but not for democracies.
The flexibility brings some disadvantages. This adaptability to the changing actually comes from their work and indefinite
language. In a good constitution we need clarity and definiteness and brevity in a good constitution. However these kind of
traditional constitutions, unwritten constitutions actually include lots of sentences, regulations that do not match the language of
time as well as terms that an ordinary person and a commoner cannot understand. Therefore it is not a good constitution for the
citizens. The the concepts of this constitution may not be understood by a commoner but it requires a professional. In addition to
that this flexibility also brings an instability. The human kind requires a suitability and a harmonization only after that they can
reach the justice and feel that justice. Therefore this unstable nature also becomes a disadvantage for unwritten constitutions. In
unwritten constitutions the judges will have more of authority than they are desired. Here the judges will become the lawmaker.
The constitutions are made by the state owners. Constitutions were considered as a source of law because they were done by the
very founders of that state. If you give all the authority to interpret all the regulations of the constitution to the judges, the judges
will became the fundamental forefathers of that state. However it shouldn't be possible. There has to be one founder and the rest
must be the ones that obeys interprets and sometimes they should be able to amend the constitution but they should not be able to
amend the very soul of that state. This is also an unwanted conclusion.
Another disadvantage is that these unwritten constitutions are not considered as suitable to democracies because they are not
definite and they are not clear.

The Advantages and Disadvantages of a written constitution;

The written constitution is the form that you clearly and definitely write all the constitutional rules in one single document.
These written constitutions gives states an opportunity for the fresh start. All these written constitutions are inserted by the
founders of the country and they all become the source of the law. The first written constitution in human history we see as the
american constitution. The very first constitution in the meaning that we understand is accepted as the american constitution.
And then the french and poland constitutions follow it. Our constitution Turkey's constitution is also a form of written
constitution.

The Advantages/merits of a written constitution

1-The most important merit of a written constitution is that it is very definite. There is no uncertainty. The constitution provides
all fundamental principles in written and people can refer to it as and when they want. As the powers and organization of the
various organs are well defined there is very little scope for confusion and disputes. If a dispute arises, it can be referred to the
judiciary.
2- As written constitution is drawn with great care and after long deliberation. It means it is the result of experience and
knowledge. There is no place for the temporary emotions and hasty decision.
3- A written constitution protects the rights of the individuals. Rights are incorporated in it making them superior to the ordinary
law and saving them from being changed by different governments as they wished.
4- It checks the constitution from being twisted and turned according to popular whims and emotions thus giving a guarantee of
stability. 5- A written constitution is stable and guides through difficult situations. It is more suitable for emergency periods.
.6- For a federal government written constitution is more suitable because there is provision for the central and state power
separately.

The disadvantages/demerits of a written constitution

1-Generally, written constitutions are difficult to amend, thus Introducing rigidity and conservatism.
2- In a written constitution, judiciary is quite conservative and interpretations are merely to see whether a law conforms to the
constitution or not. This might strangle a nation, which needs to change according to the times
3-It tries to encompass all rules and ideals of a nation, which may not be suitable for all the ages. Thus, the future growth may be
neglected.

-The written constitutions are very hard, very difficult to amend and this will just end up constitutions being very far beyond the
current necessities. In other words some written constitutions cannot answer the requirements of the date and that will result with
the performance of the state not fulfilling the necessary requirements of the citizens.
You should have some articles that allows the constitution to be amended but in a way that also gives it a suitability. It is very
hard to constitute a constitution therefore. That is why we have some regulations specific which can now can be altered and
regulated under a constitution but also some of the fundamental rights application of some fundamental rights or some duties are
just left to the laws cause.
A constitution is the source and main document that governs the state. But it should leave place for laws and codes or acts.
So the constitution should be as clear as definite as short as to protect all these duties and fundamental rights of the community.
But also should be able to regulate all these issues and leave an area to the court to regulate the application and the performance
of that duties and rights.
Therefore we do not see the 150 years old written constitution. Maybe American constitution is something very similar to that
but they also have lots of amendments in it.

2- Soft and Rigid Constitution

This classification in terms of procedure. Soft kinds of constitutions can also be defined as flexible constitutions. They become
effective and they are changed as same as any other law. So there is no specific quora (number of votes/ratio that you required to
make a decision.)
In soft constitutions do in order to make them or change them or to make them effective the quora you need for a constitution is
just same as a law an ordinary law an ordinary code. As you see here it is easier to amend this constitution. However in a
rigid/inflexible constitution you will need a different korea generally a much higher quora to amend the articles of the
constitution than an ordinary law. For instance in Turkish legislation the number of votes that is necessary to accept or to amend
Turkish commercial code is different than the number of votes that you require to amend the constitution. So Turkish
constitution is more of a rigid constitution.
Most of the common law countries, continental law countries have rigid constitutions.

The Merits and Demerits of Soft Constitutions

The merits of a soft constitution;
1- A soft constitution can be amended with the same ease and facility with which ordinary laws are allred. It makes possible the
adjustment of the constitution to the one and the changing ness of the society.
2- A soft constitution can easily adopt the needs of people with the change of time because of ils easily. When the demands of
people are fulfilled by the constitution there is hardly any change of revolution. It is the soft character of the British constitution,
which has saved Bran on so many occasions for the danger of revolution. The transfer from a monarchy to parliamentary system
was also free from violence. Whereas France which tery close to Britain experienced a revolution and 0 ft, five constitutions
have been enacted because of revolutions and odd circumstances,
3- Soft constitution is very useful for developing a country, because it {great expression of its development. It doesn't hinder
progress due to adaptability. At the same time, it protects the basic principles of the constitution. A soft constitution is based on
the sound assumption of some ‘socio-political change and premise that there cannot be «perfect constitution for all times to
tackle the socio-political changes.
4- A soft constitution is moulded by the conventions of national life It represents the historical continuity of the nation's fe and
incorporates within the changes a and when the need arises. A soft constitution ea, thus, claim {to feel the pulse of public
opinion It represents the rind of people

The demerits of a soft constitution;

1- Due to is exible nature the constitution keeps on changing. The constitution may be changed just to satisfy the people who are
in majority ignoring the welfare of the minority. It falls to provide a stable system in administration which results in the poor
performance of the government
2- When the procedure of amendments is simple and easy, it is liable to be seriously affected by ever changing popular pasion.
And popular passions are guided by emotions, not by reasons. decisions, which are based on emotions, not on reasons.
.

Merits and Demerits of Rigid Constitutions

The merits of a soft constitution;
1- A rigid constitution possesses the qualities of stability and performance. A rigid constitution is essentially a written
constitution which is
the creation of experienced and learned people. Thus, it is the symbol of national efficiency. People regard as a sacred document
and they are ready to work according to its provisions.
2- A rigid constitution safeguards legislative encroachment, Constitution should not be a plaything in the hands of legislatures.
3- A rigid constitution safeguards fundamental sights effectively. Fundamental rights are part of the constitution.
4- A rigid constitution ie fee from dangers of temporary popular person, Because of complex amendment procedure the
constitution say not
be swept away by the emotions of the people which in most of the cases are ‘not based on wisdom and renoning.

The demerits of rigid constitution;

1-Sometimes changes in the constitution become inevitable but a rigid constitution cannot be amended easily.
2- The framers of the constitution do not arly foresee the future. a rigid constitution is not suitable for a progressive nation where
changes take place frequently.
3- Under the sgid constitution, the main chance of the judiciary is to see whether the Law conforms to the provisions of the
constitution or not.

The Classification in Terms of Method

The regulator constitutions; They are mainly the constitutions which are caustic methods. The regulatory constitution means that
you need to just regulate everything under a law and generally the totalitarian regimes prefer this kind of regulation because they
want to control everything. Especially in continental Europe is used. This method is not very feasible, of course it has some
advantages as it gives the sovereign authority to control everything but it is also not a very good way for making a constitution
since a human being cannot think about everything. So you cannot cover everything and there will be some gaps if you try to just
regulate everything and in these gaps the state will fall on a point where it cannot decide. If you want the constitution to regulate
everything and if you say that if it is not in the constitution you cannot act then there will be lots of conditions that the state
cannot perform its duty.
However this is a way for the continental constitutionalism. The Austria Brazil India Portugal or Turkish constitutions are more
regulatory constitutions than frame constitutions.
Casuistic method means regulating every single action under the law. If you try to regulate everything under the constitution it
may not be possible for the state to act and to regulate everything.

Frame constitutions; here the name speaks for itself. The frame constitution means the constitution is regulated only in a frame
way. It is very short. In a very frame type of concept regulate all these fundamental rights and duties and actually explain the
necessary regulations. Therefore it is always easier to find a middle way between the frame and regulatory constitution.

CONSTITUTIONALISM
The rule of Law
-Aristotle; mixed system of monarchy, aristocracy and democracy
-Charter of Medina
-Magna Carta
-The Us Constitution: Government san and should legally limited in its powers and its authority or legitimacy depends on
its observing these limitations.
-French Constitution

Corpus juris civilis; Why is it related? The roman law is the very first law that tries to codify. (a collection of fundamental works
in jurisprudence, issued from 529 to 534 by order of Justinian I, Byzantine Emperor.)
(Public law is a new area of law actually. It mainly emerged after the foundation of sovereign states. Of course before that the
public and private law distinctions were made and the scholars were discussing it. But main developments on public law
especially in administrative law are only a couple of hundred years issue.)
In legal history when we look at the main sources especially in legal education we'll all see these digests. Digests regulating the
roman law and roman empire. Before those digests we see there are some constitutions. They were actually the combination of
all legal regulations in the roman empire. Corpus juris civilis Justinian/ıustinian.
Jura which means jurisdiction; these are all latin words.
Before Justinian there are some emperors who requested the scholars to collect all these separate laws and regulations altogether.
They did it and they have “constitutiones”.These were present they are very useful for the law practitioners but only for the law
practitioners and the judges because they were pure law. They were all the norms and legal rules rules but justinian thought that
their law does not only consist of these regulations constitutiones. There are also lots of interpretations, scholars verbs, court
rulings in the legal world. He required make all these constitutiones, regulations, judgments, rulings of the judges and make one
single reference document that will be used within the empire everywhere. So we will have a harmonized legislation, everyone
will know what they will face when they do an act.
In this text they gathered all of them all together leave out the absolute and redundant laws and remove contradictions. With
these all constitutiones and scholars’ reductations and interpretations and judgments they form digests and all these seven digests
consist of these Corpus Juris Civilis. All these regulations within the roman law they all connected all together. They removed all
the irrelevant parts absolut parts, redundant laws, contradictions also removed and they all came together. After that um Justinian
also requested to form them to collect them all together and also add the jurisdiction and make a reference that will be applicable
within the roman empire. They made it and they called it the “seven digest” All of these digests are called the Corpus Juris
Civilis. These digests are used for the legal education throughout Europe within the roman empire. For a time it has been
forgotten however since the empire has the sovereignty and since the kings has the sovereignty the parts regarding the
sovereignty state all silence because the sovereignty does not want to be subject to some legal regulations. So within the corpus
juris civilis there was a distinction between the public and private law. The public law part was more related to sovereignty and
criminal law and the private law part was more related to private relations. Since the kings and empires and the sovereign powers
does not want their sovereignty to be subject to some regulation, mainly the private law part has been discussed and studied by
the legal scholars. However after the emergence of sovereign states so the sovereignty removed from the kings and emperors or
the religious, the church and so on and when it shifted to the people and the state the idea of public law started to be discussed.
The idea of separation of powers all these audits on the state audit on the governing authority has led to the development of
public law in addition to that to constitutionalism. Therefore constitutionalism is more of a recent centuries subject.
Aristotle also had an idea on constitutionalism. But now we are more referring to the legal constitutionalism which is based on
the separation of powers which is mainly discussed by the montesquieu and accepted by the French declaration of rights of men
and citizens.

After the roman empire there are some constitutionalism movements within the islamic civilizations. The charter of Medina
which is also a form of constitution which regulates an agreement and also states the duties and rights of the tribes and families
of Medina including muslims jews and pagans towards each other. This was also an example of constitutionalism throughout
history.

After that we'll see the Magna Carta as the very first example of constitutionalism in a more closer time. However of course after
magna carta it took so much time for people nearly 500 years to regulate more modern constitutions.
Magna carta is accepted as a movement of constitutionalism because in Magna Carta the principle of “habeas corpus” is
accepted. Which means the king cannot imprison, outlaw exile or kill anyone without the due process of law. This means that the
king accepts before i act i'll wait for a due process of law. In other words I accept that the law will prevail in my ruling. This was
a very big step in the forming of sovereign states and in the forming of constitutional monarchies. At first of course magna carta
was an agreement between the nobles and the king however the effects of this step did not state that it just gradually moved
towards the citizens. In the end the reforms result in the shift of the power from monarchy to the house of commons. It was a
very big moment and therefore it is accepted as one of the sources of constitution within the British Empire still in acts.

The very first example of the written constitution is seen in the American Constitution. These are more similar to our modern
understanding of our constitutions. Then comes the french constitution.
The constitutional history of turkey we see the french constitution effect very much. Our very first constitution Kanuni Esasi
dated 23rd december 1876 is actually derived from the french constitution. This constitution is very similar to the french
constitution and then comes the independence war and during the independence war the turkish Grand National Assembly
accepted a constitution dated 1921 which was very related to the foundation of a new country. Therefore the fundamental rights
of the humankind and the main responsibilities of the state were regulated in a very limited way just bearing in mind that there is
a state that is trying to just cure itself and get back on its legs again.
We had a constitution dated 1961 which is actually a source of a military coup. After that we also had another constitution dated
1982 which is also a result of a military coup. Our current constitution is this 1982 constitution however since it is the result of a
military coup this constitution was criticized very heavily by the scholars and all of the public. Therefore it has lots of
amendments. But if you should mention some of its amendments we can refer to the last amendments that has been made to this
constitution.
As for the amendment in 2001 we see that “The findings obtained through illegal methods shall not be considered evidence.
All these amendments that we mentioned here in 2001 2004 2010 and 2016 mainly done by the effect of the European Union
membership candidates and by the change in the parliamentary system.
The amendments in 2009 also includes that “no one shall be deprived his or her liberty merely on the ground of inability to fulfill
a contractual obligation”. “The family is the foundation of the Turkish society and based on the equality between the spouses”.
As you see here the equality between the supposes is introduced to the constitution.
“-Instead of dissolving it permanently in accordance with the above mentioned paragraphs the constitutional court may rule the
concerned party to be deprived of state aid wholly or in part with respect to intensity of the actions brought before the court. “
One of the fundamental rights of a human being is to be represented in the state and to be able to be heard. The state has a duty to
enhance it to enable it. Therefore the state aid given to the political parties is the result of that duty. However here another duty
and another protection for the representation before the national assembly is regulated.
As you see instead of dissolving it permanently the constitutional court may rule the concerned political party to be deprived of
state aid. In other words the constitution says dissolving a political party permanently is actually hindering a fundamental right of
the citizen.
So instead of this dissolving it permanently first you should consider it to be deprived of the state. This was a fundamental
change and amendment in the 2001

Another amendment made in 2014 includes “the removal of the cancellation of capital punishment”. “The immunity of private
life and family”. “In the case of a conflict between international agreements accepting that the provisions of international
agreements will prevail the local law” is also a fundamental amendment.
The amendment of 2010 includes “the right to individual application to the constitutional court”, economic and social council,
precautions taken to protect women that were all introduced in 2014.

In 2016 major amendments were made in the parliamentary system. Judicial power shall be exercised by independent and
impartial courts on behalf of the Turkish nation. In addition to that the grand national assembly of Turkey shall be composed of
600 members. The age for the election also decreased to 18. The dates of the elections were regulated to be held every five years.
Since the parliamentary system has changed the presidential office is introduced to the constitution. The names of the military
court of concession and military high administrative court are all removed from the article. The formation of the council of
judges and prosecutors are all regulated under the amendment so those are all the issues that we shall mention about
constitutions.
İntroduction

• ● At the beginning in the nineteen century tasks of state were limited to maintaining law

and order and defending its territory against attacks from abroad.

• ● After the industrial revolution, the task of the state has expanded. They started to provide
community services and distribution of wealth among citizens. Maintaining

order and provision of public goods and services has added into its tasks as well.

• ● For example administrative bodies have to right raise taxes or stop your car when you
drive fast. When the admins. authorities use their public power to interfere with your

private rights and interests. You also have some rights against admins. as well. 1)The
Concept of Admins.

• ● It is the administrative machinery of government.

• ● Subject of administrative law is “administration” .
• ● Public Administration means the place where public affairs take place.
• ● The organization and functions of the admins. are based on the principles of

centralization and decentralization. 1.1 Division of Public-Private Admins.

• ● Public admins refers to governmental settings.

• ● Private admins refers to non-govt settings.
• ● “Public Admins.”, “Municipal Admins.”, “University Admins.” for public law

whereas “Trust Admins”, “Association Admins.”, “Corporate Admins.” for private

law. When Administration is used alone, it refers to public admins. 1.2 The Differences In
Terms of Establishment

● Public admins. is established by only law or presidency. However, 7 people can establish
private admins. with becoming associations.

1.3 The Differences In Terms of Targets

● While public admins seeks only public interest, private admins may seek its own

interest
1.4 The Differences In Terms of Determination of Activity Areas

● Public admins. law is determined by law while private one is determined by the will of founders.

1.5 The Differences In Terms of Exercise of Public Power

● Public admins have public power such as juristic acts, while private power does not
have that kind of power.
1.6 The Differences in Terms of Priority

● Because of the fact that it seeks public interest, public admins are not equal to other people.
While private admins relationship is based on equality principle.

1.7 The Differences In Terms of Legality

● Principle of legality is one of the main principles of public admins. The principle of freedom is
valid in private law
1.8 The Differences In Terms of Termination

● Public admins. is terminated by law while public one is terminated by will of people.

2)The Systems of Admins. Law

● There are basic differences between Anglo-American and civil law approaches.

1. a) In Anglo-American system, common law system, there is no sharp distinction between

public admins and private admins. They solve their problem in ordinary law courts on the
basis of analogy.
2. b) Civil-law countries have a sharp distinction between public and private admins. They
established different courts for them.

● The features of French type of admins system: ○ Administration

○ Administrative law

• ○ Administrative courts
• ○ Court of the Jurisdictional Disputes

3) Birth of Administrative Law

• ● It was born in the aftermath of French Revolution.

• ● Division of powers doctrine has developed related to this.

4) Birth of Administrative Law in Turkey

● As a result of the reform process that was started by Sultan Mahmud, the Supreme

Council for Judicial Regulations was set up in 1837. Turkish admins law is different from that of
Anglo-American admins law but identical to french Admins Law. İt comprises a wide range of
topics such as; personnel admins, police power , admins acts, rule-making power, actions and
contracts etc.

5) Features of Administrative Law

• ● Since 1872, admins law has been improving but still it is a new branch of public law.
• ● Substantive admins law is not fully codified in a single text.
• ● The fundamental principles of admins laws are not enacted. They derived from

decisions of the admins courts.

 • ● Admins law is an independent branch of law. It has some rules that do not exist in

private law.

• ● Admins law regulates the legal status of people or administrative agencies.

● The disputes in administrative law are solved in administrative courts. 6) The Administrative
Structure of Turkey

There are two principles dominating the Turkish admins structure. They are centralization and
decentralization.
6.1 Centralization

• ● All decisions made by the central government.

• ● There is a single legal personality in a center “state” entity.
• ● State entity has some ministries. They are a body of state.
• ● All decisions and services are concentrated in the hands of the central government.
• ● Incomes and expenses of public services are collected in the central budget.
• ● Provincial officers acting on orders of the central government.
• ● Advantages of Centralization as following
o ○ Uniform performans activities
o ○ It helps ensure civil admins superiority over bureaucracy.
o ○ It ensures more expert staff and financial means for effective public services.
o ○ It ensures equality between regions and more fair distribution.
o ○ More well-planned and logical public services.

○ Financial management is easy bec. they are spending by single authority.

○ Public officers are free from pressure from local powers. ● Disadvantages of Centralization

• ○ Delay in work. It takes a lot of time. Quick decision is not possible.

• ○ Not suitable for democracy.
• ○ No secrecy. (gizlilik)
• ○ No priority of local needs.
• ○ Remote control. Better supervision is not possible under the pressure of the center.
 • ○ Officials may act according to the center's request and pure political purposes rather than
local needs.
• ○ No special attention. All work is done by a single place.
• ○ No loyalty. They have to do what they are asked for to do. 6.2 Decentralization

• ● The features of Decentralized can be list as:

o ○ A separate legal personality. They have legal personalities like states.
o ○ Autonomy: They have autonomy in terms of administration, finance and

personnel.

o ○ Administrative tutelage(himaye): Central govt has a tutelage over the

decentralized govt.

• ● The advantages of decentralization

o ○ İt is a consequence of democratic constitutional state. Participation of people into
ruling.
o ○ It removes disadvantages of centralization like red tape (kağıt işleri).
o ○ More sufficient for public needs.

● The disadvantages of decentralization

• ○ They are not sufficient financial means.

• ○ It prevents balanced use of resources.
• ○ It may lead to political purposes applications.
• ○ It is a thread for unity of the country.
• ○ Financial autonomy may lead to bad administrations.

7) The Integrity of Administrations.

İntegrity of admins so important for unitary countries. They try to provide this with

law. There are three legal tool for this

1. Hierarchy: Arrangement between things represented as being above and below.

Hierarchy is divided into two:

1. Superior position acts on the public servants

i. Those who have the above position have the power to appoint, promote and retire if
it is given by law.
ii. Disciplinary Acts: to power to give disciplinary sanction to the officials.
iii. Distribution of the duty.
iv. To issue an order
2. Superior position acts on the officials
i. Right to audit (denetim) acts of officials in terms of legality and propriety.
ii. Right of remove, change, postpone the acts of official
iii. Those in a superior position cannot use any power given to the official by law. For
example, a power given to the district governor cannot be used by the governor.

2. Administrative Tutelage The feature of it as follows

 1. This is not a two decentralized government relationship. Central one can check, audit
(denetim) decentral one.
2. It is an exceptional right. It ıs usable if law allows.
3. It does not cover issue orders. Maybe “approval-disapproval” and “veto” is possible.
4. It mostly means supervision of legality.

Tutelage is different than the hierarchy as follows:

1. Authority to give permission beforehand.

2. Approval authority: decentralized govt needs to to be approved by authority.
3. Nullity authority (iptal): Sometimes acts of decentralized govt may be null by central

one.

7.3 Devolution of Powers

Devolution of power has two forms:

1. Central government regionalized and decentralized its administration.

2. A unitary government became a federated one.
3. It sometimes refers to a shift of responsibilities and tasks. In Turkey the first one is applied
according to the constitution.

d
Name Mukhammad Zokhir work
Introduction to law Nutshell. Chapter: 7 Summary
Subject: Introduction to law
Year 2/4

Purpose of this chapter

What is tax?
What are the main features of Turkish taxation system?
In this chapter, you will be able to examine basic concepts, sources and principles of tax law, to
explore rights and obligations of taxpayers; and to identify basic concepts and regulations of income
tax, corporate tax and value added tax.

Definitions:
Tax is an amount of money that you have to pay to the government that it can pay for public services.
Valuation is a judgment that someone makes about how much money something is worth.
Tax loss is a loss sustained by a company that can be set against future profits for tax purposes
Invoice is an itemized list of goods shipped or services rendered, stating quantities, prices, fees,
shipping charges etc.
Installment is one of the portions, usually equal, to which a debt is divided for payment at specific
intervals over a fixed period.
Fee is the amount of money that a person or organization is paying for a particular job or services
that they provide.

What is tax? is a pecuniary burden laid upon individuals or property owners to support the
government activities. It is an enforced contribution to legislative authority. To sum up, it is required
payment to the administration not voluntarily.

The tax comprises of ruler’s regulation mutual rights and liabilities arising from tax relationship
between state and citizens.

The source of tax is two parts.

• Binding and Non-binding
4. Binding source of tax is binding on all public authorities, institutions, organizations. All
taxation regulations must be considered accordingly.
According to article everyone under obligation to pay taxes according to his/her financial
resources in order to meet public expenditure.
The president of republic may empower to fix the percentages of exemption, exception
and reductions in taxes within the minimum and maximum limits prescribed by law.
2. Non-binding source of tax
Ministry of treasury and Finance, formal options of tax administration is source of Non-
binding tax.
Turkish Taxation system has two sub-branches Tax procedure. Substantial tax
• Tax procedure concerns the rules laid down in the law as to assessment, enforcement, procedure,
coercive measures administrative and judicial appeal and other such matters.
• in Turkish taxation system; rights, burdens, ways of implementing mandates and varying out
duties, are regulated by Tax Procedures Law, and this law comprises 5 main revenue
administration sections.
- Taxation articles 4-152. Comprises provision about main issues such as; taxpayer, legal
representative, time limits, notifications, payments, errors, corrections, and tax inspection
- Taxpayer Duties articles 153-257. Comprises provision for taxpayer duties, declarations,
books, and records, and documents to be issued.
- Valuation articles 258-330. Comprises provision regulation how tax payers validate his/her
economic assets and wealth, and depreciation.
- Penalty Provision article 331-376. Comprises provision of penalties to be imposed on the
taxpayers who violating the tax low, payment. Also, Regulation conciliation process.
- Tax Cases articles 377-417. Comprises provision about cases which will be brought by
taxpayers and those who are punished with tax penalty.
• Second sub branch is Substantial law is the analysis of the legal provision giving rise to the
charging of a tax.
* In Turkish taxation system examined under two main headings Direct tax system and Indirect
tax system. Direct taxes cannot be transferred to another person while indirect taxes can be collected
from someone other than the person who would normally be responsible for the tax.

Personal Income Tax (PIT) is levied on the income of individuals according to personal income. In
the application of income tax, partnership is not deemed to be separate entities and each partner is
taxed individually on his/her share of profit.
• Direct tax
• Individual income tax elements listed below.
• Business profits: A person must have a permanent establishment in Turkey and income must
result from business carried out in this permanent establishment.
• Agricultural profits: agricultural activities yielding income must take place in Turkey.
• Salaries and wages: services must be rendered or accounted for in turkey. Fees, allocations,
dividends, auditors, and liquidators of the establishment situated in Turkey must be accounted
for in Turkey.
• Income from independent personal services: independent personal services must be
performed or accounted for in Turkey
• Income from immovable property rights (rental income): Immovable must be in Turkey.
Rights considered as immovable must be used or accounted for in Turkey.
• Incomes from capital investment: investment of the capital must be made in Turkey.
• Other incomes and earnings without considering the source of income: The activities or
transactions generating from other income, specified in the PIT law, must be performed or
accounted for in Turkey.
 • Corporate Income tax: is levied on the income and earnings derived by corporations and
corporate bodies. Try to distinguish between CIT and PIT
• Corporations and corporate income tax bodies are listed below
• Capital companies and similar foreign companies
• Cooperatives
• Public enterprises
• Enterprises owned by foundations societies and associations
• Joint ventures
In order to be taxed those corporations must be situated in Turkey.

Indirect taxes
Taxes on Good and Services is
• Turkish taxation system comprises several indirect taxes including; "Value Added Tax(VAT)",
"Special Consumption Tax", "Special Communication Tax", and "Banking and Insurance
Transaction Tax”
• 1) Value Added Tax (VAT) Turkish tax system levies value added tax on supply and
importation of good and services. You pay this tax when you buy something.
• When a person performs commercial, industrial, agricultural or independent profession
activities that we mentioned above with in Turkey
• When goods services are imported to Turkey.
• VAT tax payer are defined In VAT law as those engaged in taxable transactions, irrespective
of their legal status or nature and their position with regards to other taxes. Those people are
responsible to VAT are:
• Supplying goods and services
• Importing goods services
• Required to complete customs formalities in case of transit of good through Turkey
• General Directions of postal services (Telecom, Radio, Telecommunications)
• Organizers of any kind of chance and gambling
• Organizers of shows, concerts, sporting events
• Lessors of good and rights

• 2) Special Consumption Tax is levied only once at one stage of consumption process of the
good with the scope of four lists. These four product groups that are subject to SCT are different
tax amount or rates.

• 1- is related to petroleum products.

• 2- is related to land, air, sea vehicles
• 3- is related to alcoholic beverages, Cola, soda, cigarette etc.
• 4- is related to other consumption goods. (Phone, white goods etc.)
 • Taxpayers of the SCT taxpayers vary by list and transactions as following:
• 1- is manufacturers including refineries or importers of the petroleum products
• 2- traders of Motor vehicles importers.
• 3- manufacturers and importers of the good or sellers of untaxed goods through auction.

Special Communication Tax: Telecommunication services are subject to special communication

tax. Those tax rates are as follows:
• On mobile electronic communication service (including the sales for pre-paid lines) 25%
• The services regarding the transmission of radio and television broadcast on satellite platforms
and cable medium. 15%
• The internet providing services by wired, wireless and mobile 5%
• Electronic communications devices not listed above 15%. Tax payers are the operators who
provide the electronic communication services.

Banking and Insurance Transaction Tax. (BITT) The subject of this tax and taxpayers is
transactions and services performed by banks, bankers, and insurance companies.

Tax on Property In turkey main taxes on property are inheritance and gift tax, property tax, and
motor vehicle tax.
• Both local and foreigners are subject to inheritance and gifts tax on assets located in Turkey.
The items acquired as gift or through inheritance are subject to progressive tax rate ranging from
10% to 30% and 1% from 10% respectively. Inheritance and gift tax are payable over 3 years.
• Motor vehicles tax paid in two equal installments annually in the begging of January and July.
But different class like airplane and helicopters, are paid in the beginning of the year January.
Motor vehicles are classified into three categories in terms of motor vehicle tax:
• List 1: cars, motorcycles, and terrain vehicles etc.
• List 2: minibuses, panel vans, motorized caravans, busses, trucks, etc.
• List 3: planes and helicopters.
And the amount of tax for vehicles determined according to its ages and number of seats, capacity
weight.
But for planes and helicopters, is determined according to its maximum take of weight.

Other Taxes
• Stamp tax, including contracts, agreements, notes payable, letters of credit and guarantee, financial
statements and payrolls.
• Betting Tax, including lotteries and other forms of gambling. Taxation period for gambling tax is
each month of the calendar. Gambling tax in not deductible for income and corporate tax purposes
• Custom Duty tax includes good that imported from abroad, circulation of goods. Registration of
customs declarations, and temporary importation. Tax payer is a person who declare to the customs
office, and customs duties taxes must be paid in 10 days dating from notification.
• Different types of Tax according to Law 492. Including, judgment fees, notary fees tax judgment
fees, Title deed fees, consulate fess, ships, permit of license, passport fees etc.
Enise Özüdoğru-Melike Belkıs Türkmen

TURKISH CIVIL LAW

Civil law: the law that regulates social relationships within the community/Every social and
economic activity within the society.
Under the civil law we have specific laws that regulates specific areas such as Turkish Civil Court
which is the main court that all the civil relationship and civil legal relationship will be referred to
and have Turkish Code of Obligations and Turkish Commercial Code. In Anglo-Saxon law, there is
no separation like that.
Turkish Civil Code is divided four main books:
1.The law of persons
2. Family law
3. Law of succession
4. Law of property
The code of obligations forms the fifth part of the Civil code but has its own separate chapters and
sections for the sake of convenience.

Preliminiary Chapter (Article 1-7)

Preliminiary chapter is the general principles.
Article 1: Application and sources of law. According to the article;
-Judges duty to solve the problem, they must suit every case and give a decision about it
While judges do that they are bounding some rules;
-Hierarchy of laws-The order of application of the sources of law depends on the importance and
power of the rules. (The written sources have priority)
-A regulation having less power should not be contrary to the regulation which are more effectual
than itself -because of the hierarchy among the sources of law-
-Judicial decisions have limited effect for other individual cases.-His judicial decision is not binding
for other judges even the suits are similar.

Concept of Good Faith

Good faith is a state of mind characterized by honesty and sincerity of intention.
Article 2: Acting in good faith, it is also called objective good faith
-A general rule that is applicable for all of the persons.
-You cannot use right you're right by breaching a third party's right the boundaries are limited
Article 3: Subjective good faith
-More related to the person who is using the right i’ll
Comparison of discretion in Art 1 and Art 4
Art 1: no regulation applicable
Art 4: there is regulation applicable

Application of Code of Obligations

Code of obligations has two main parts the first one is the general principles and the second one is
the special prison provisions.
Article 5: The general provisions of Turkish civil code and the general provisions of code of
obligations apply to all private law relations provided that the rule is agreeable with the nature of the
relationship. Regulation will be applied mutadis mutandis-when the necessary changes have been
made.

Burden of Proof
Article 6: Burden of proof, this principle means that every part of the legal dispute is obliged to prove his/her
assertion.
Article 7: Prove by formal documents,

Law of Persons (Book One)

Two main concepts
Person: entities that can legally possess rights and duties. Persons are the main subjects of private law. The
relationships of person in matters such as the creation and termination of personality.
Personality: the legally protected values that are attached to the person
Results of being a person:
-can declare intent
-can carry out legal transactions
-can obtain posession
-can obtain rights
-is liable
-can be plaintiff or defendant

Classification
1. Real person: human beings
2. Legal person: a group of real persons who come together individually or bring their capital or skill for a
common social political and commercial pupose or a property assigned for those kinds of purposes and
acquire personality within the precursors of law.
a. Private Law Person:
i. Community of persons: society (association), commercial companies
ii. Community of property: foundation
b. Public Law Person:
i. Community of persons: public administration (state, private provincial administrations,
municipalities, villages)
ii. Community of property: public institutions (universities,TRT, social security, etc.)

Real Person/Personality
Persons are the main subjects of private law. The relationships of person in matters such as the creation and
termination of personality. When we look at persons we look at how they obtain personality, how they lose
personality and their capacity.
How they obtain/beginning of personality: Personality of a human being starts at the moment birth. The
children are deemed to have legal capacity a certain degree of personality on condition that the child is born
alive.
How they loose personality/ending of personality: The personality of real persons end by means of several
ways. The natural way is death. The other legal ways ending legal personality are absence and death
presumption.
absence: A person may be declared absentee if s/he missing for 5 years and no news from him during
5 years or if s/he has been lost in a dangerous circumstance and has not been found within a year. The property
of the absentee passes to his/her successors contrary to death with a provision of guaranteed period. If the
dismissed person comes back in 15 years(in case of missing at least 5 years) or in 5 years (in case of lost in
dangerous circumstances) they would give the whole property back to owner. The guarantee period ends the
date of the 100 age of absentee in all cases. When applied for absence, judge will Wait 6 month then made the
declaration.

Real Person/Capacity
Capacity to acquire rights (hak ehliyeti): (Art 8) is given all real persons as long as they born alive. Starts
from the moment that they were within the womb of the mother.
Capacity to act (fiil ehliyeti): (Art 9) Capacity to enter into actions/Capacity to be liable for torts/Capacity
to sue
Conditions
i. to attain majority: you are over 18 or with marriage
ii. maturity: to be able to fair judgements, to able to decide what is good or bad and right or wrong.
iii. not to be interdicted (legal incapacity): a person who is under guardianship or mental incapacity is
considered as interdicted therefore they cannot have capacity to act.
*Capacity to act is general because every persons are subjected to the right. All real persons are equal in the
content of acquiring rights and it is passive. You do not have to do anything except being born.

Real Person/Classification according to capacity

to act
Full capacity (tam ehliyetli): (Art 9-13): Those who
have reached majority(18years old) are able to make
mature or fair judgements and not under the
guradianship are fully capable of entering into
transaction.
Limited capacity to act (sınırlı ehliyetli): (Art 16)
their capacity has been limited such as married and
legal supervisors.
Full incapacity (tam ehliyetsiz): (Art 16) Those who
do not have the ability to make fair judgements -
even temporarily- are fully incapable of entering
into transaction. (infants, mental sicness, mental
weakness, drunkenness). They cannot be held liable for their torts and crimes. However, sometimes the judge
can give some kind of compensatory duties like compensation of the loss monitor compensation of the laws if
that full incapable person has the means.
Limited incapacity (sınırlı ehliyetsiz): (Art 15) minors those who are mature but under 18 years old or they
have been accepted as legal incapacity by the court.

Legal Persons
Communities of persons of goods that can obtain rights and duties which have come together in order to realize
a specific purpose.

Legal Persons/Private Law Persons

Characteristics:
 Founded with free intent
Equal with other legal persons and real persons of private law persons
Have specific private purpose
Types:
a. According to formation:
i. Communities of persons
-society (association)
-commercial companies: unlimited company(collective company), partnership in
commendant (comandite company), joint stock company, limited liability company, comandite company with
capital divided into shares, cooperatives. However, simple partnership does not have a legal personality.
ii. Communities of property
-foundations
b. According to purpose: Conduct financial purpose/Conduct ideal purpose
Legal Persons/Public Law Persons
Characteristics:
Founded by state by regulations
Superior to private law entities
Seeks for public benefit
Types :
1. Communities of persons: Public administration: Central government (state, provinces)/Local
government (private provincial administration, municipalities and villages)
2. Communities of property: Public institutions:
Administrative/financial/social/scientific/regularity/occupational

Family Law (Book two)

Family is a union composed of spouses and their children. Family law regulates the relationship among persons
such as engagement, marriage, divorce, parent-child relations, adoption and guardianship.
Filiation (soy bağı/nesep): The natural results of family relation causes lineage affinity relations. Filiation is
the relationship of the family members to each other especially to the father.
Natural filiation is the relationship originated from the blood-relation of the members of family. Person
coming from same blood are assumed to be of natural affinity. This is kinship by blood.
Kinship by birth: a child born during marriage is legitimate. Also, a child born within a period
of 300 days after the divorce, death or absence is a legitimate child from the beginning of birth.
Kinship after birth: out of marriage (legitimize later) (nesebin düzeltilmesi)
Artificial filiation: is established through an adoption or marriage.
Kinship by adoption:a person who does not have any legitimated child and of 30 years old,
may adopt a child. A married person -man and woman- may also adopt. Even unmarried person may adopt a
child.
Conditions of Marriage
- Capacity to marry: it means mental capacity. Only person who have sufficient mental capacity to make
fair judgements are allwed to marry.
Lack of marriage capacity causes invalidity of themarriage: Minimum age of marriage is 17 for man and
woman. Under necessary conditions, a man and a woman of 16 years old may marry with an order of court.
- Absence of consanguinity: The prohibition is in current for the ascendant and descendant and the
collateral kinship, including the third degree. (brothers, sisters, nephews, aunts, uncles.)
- A prior marriage: Turkish civil code is based upon the principle of monogamy.
- Some sickness enumerated in article 123: Hygiene, threatening public order and health of the future
generations.
- Lack of true consent of the parties: If marriage is celebrated without taking the genuine consent of one
or both of the parties or if the consent is given with mistake.
- Period of gestation: A divorced woman or a widow cannot marry within a period 300 days, except she
marries ex-husband or she pregnant or gives birth a child

Conditions of Divorce
Adultery: Any sexual intercourse with a person other than his or her spouse by a married person is defined as
adultery.
Desertion: Cohabitated home without any legal cause.
Attempts against life, extreme cruelty
Felonies and dishonoroble life
Incurable insanity
Disorder of marriage
Two other fundamental grounds:
-If a previous action for divorce on various grounds has been rejected.
-Divorce by mutual agreement

Consequences of Marriage
About nationality, A spouse who demands the nationality of her Turkish husband after 3 years marriage,
acquires Turkish nationality by marriage
About property&assets, During the marriage, parties should cohabitate in a place or home that arrange by
them. With the marriage both of the parties are under the duty of cohabitation, support, asistance and fidelity.
The husband and the wife are free to regulate their pecuniary relations during the marriage within the limits.
About majority, Marriage makes the spouses major
About children, By the marriage, children are legitimized who born during the marriage, even 300 days after
the termination
Law of Succession (Book three)
It is about inheritance. The passage of person’s property rights after his/her death.
Conditions of being a succession:
-Being alive at the date of death of the deceased
-Being one of the legal or testate successor
-Not to be debarred from inheritance
-Not losing the inheritance rights

Interstate Succession
If the deceased has failed to make a will or provide for the distribution of his/her estate at this death, it will be
distributed among his/her next of kin. The first parental consists of the descendants of the deceased, second
parental consists of the ascendants of the deceased and the third parental is grandparents of deceased.
Rules apply to the operation of system of parental:
-As long as one member of parental is living at the death of the deceased, the more removed parental will be
eliminated.
-Children born outside of marriage have the same rights of inheritance from their mother as other children
-Adopted children are treated the same as legitimate natural born children of the deceased
-The surviving spouse shares the estate with living blood relatives of deceased if any.
Reserved portions
-Descendants: Their reserved portion is the half of their statutory share (take 1/2 of share)
-Ascendants: Father and mother have a reserved of one fourth of their statutory share (take 1/4 of share)
-Surviving Spouse: According to co-parental, with whom he or she participates the estate, has changeable
reserved portion. Or three quarters of the statutory portion with inheritince the third parental.
a)Together with the first parental of deceased, surviving spouse takes 1/4
b)Together with second parental of deceased, surviving spouse takes 1/2
c)Together with third parental (grandparents) of deceased, surviving spouse takes 3/4, if there is no
grandmother takes the whole.
-All with first & second parental 3/4 with the rest

Testate Succession & Agreement of Inheritance

The testator can choose the heirs and the method of distribution of estate. Will may be prepared in 3 forms:
-An authentic official will is the last wishes of a person of full capacity. The testator then reads the text and
accepts its contnet by signing it.
-The holographic will is written by testator himself
-Oral will which is called as ‘soldier will’
A testator may, instead of makin will, enter with another person into an agreement of inheritance. The legal
formality of it is an official contract.
Limit of free will
Turkish law of succession imposes certaine restriction on freedom of will disposition. The right of statutory
heirs are protected by law through reserved portion.
Disclaim of inheritance
In Turkish succession law, a successor has right to disclaim the inheritance within 3 months after the
recognition of the death of the deceased or the notice given officially about the will.

Law of Property (Book four)

Rights are classified as real rights and personal rights. Personal right is a right exists only against a certain
person or persons. A real right is a right in property which may be claimed by any person. The law of property
deals with real rights Real rights divided into 2 categories: absolute real rights and limited real rights. Absolute
real rights are the rights which give the right holders the authority to use, to enjoy and dispose of things.
Limited real rights involve limited authorities such as servitudes, usufruct and mortgage.

Property (res)
1. Material of physical asset
2. Economic value
3. Suitability for possession
4. Not related to human body
5. Determinable
Types: Movable/immovable properties
Parts: Principle property/Component part/Accessory

Types of ownership
1. Sole ownership
2. Ownership in common
a. Joint ownership (shares)
b. co-ownership (no shares)
Acquisition
-Original acquisition
-Acquisition by transfer of title/posession

Law of Obligations
Narrower sense, obligation refers to monetary debt and in a broader sense obligation is a duty in a unilateral
relationship that one party will have towards the other party. Subjects will be creditor and debtor. Creditors
have the authority to request some performance from the debtor. Performance is to give, to do or not to do.
Sources (origins) of obligation
1. Contracts
2. Illegal acts (torts)
3. Unjustified enrichments

Legal Transactions
1. Unilateral legal transactions-example: declaration of the will(vasiyetname) there is only one party that
declares the will
2. Multilateral legal transactions
a. Contract: Parties have one way obligation like agreement of inheritance. One party promise to do
something and the other one accepts it. However, sometimes both parties may be under obligation. For
example, in sales agreement one part has the obligation to sell his house and the other has the obligation to
pay.
b. decision: Obligation of parties toward a common point.

1. Contracts
In order to have a valid contract there has to be an offer and acceptance. There are 6 elements required for
contract to be valid enforceable by law
-A valid agreement
-Parties with capacity to contract
-A legal cause
-A legal subject matter
-Based on a real genuine consent
-Made in the form (if required so by law)

Types of Contracts
-for the transfer of the ownership: sale/barter (goods must be similar) /donation
-for the use of property: lease/loan of object for use(the owner will leave the object to the user without payment
and the user will give it back when his necessity has ended)/loan
-for works and services: service/construction/distribution/proxy
-for conservation: bailment (the main object of this agreement is an immovable property, so the bailor will
keep the object in a safe place and the other one will pay)
-for guarantee: suretyship(kefalet)
-for luck and fortune: gambling and betting(obligation in these contracts cannot be enforced, you cannot go to
a court for gambling. If he pays you are lucky, if he does not nothing to do)/life annuity(the time that one party
goes under the obligation to make periodical payments to another party until end of his life)/support for life(the
one party will get payment to support the other’s life but the payment does not need to be periodical)
-of association: company contracts

2. Illegal Acts/Torts
Tort means a civil wrong arising from an act or failure to act independently of any contract. Under Turkish
law different kinds of responsibility are accepted. There is a dual system; concept of liability for something.
And responsibility with something. Illegal acts are usually defined to express the liability for something.
There are four elements of d:
-Damages
-Adequate causality
-Illegality
-Fault: intent/negligence

Results: compensation

3. Unjust Enrichment(Sebepsiz Zenginleşme)

It is also known as restitution. The conditions:
1. Increase in assets of one party (enrichment)
2. Decrease in assets of the other party (injury)
3. Causality
4. No justified ground
Turkish Code of Obligations rejects the concept of unjust enrichment in four cases:
-The execution, performed to realize a moral obligation or duty cannot be used with a request of unjust
enrichment.
-The execution, performed for a purpose of contrary to good morals cannot be claimed as unjust enrichment.
-The debt executed after the lapse of time cannot be taken back with a request of unjust enrichment.
-Payment of a debt by mistake cannot be demanded.

Results of an obligation
In order to say an obligation has fulfilled there has to be a performance. This performance must be carried out
personally. This performance must be carried out fully, partial performance may not be accepted by the other
party and you cannot force anybody to accept a partial performance. The performance must to be made on the
place that has been decided. The performance should be at the same time on the date of the agreement, but
parties may decide to otherwise. You may request a proof of payment from the receiving party.
Plea of non-performance: Both parties have duty toward each other.

As a result of Non-Performance
-You can ask for specific performance that you have decided within the contract
-You may ask action for compensation
-You can request cancellation of contract
Default of debtor: maturity(due date) / caution(kusur)

End of an Obligation
1. Execution
2. Lapse of time
3. Release
4. Barter
5. Renewal (the obligation ends but now there is a new obligation)
6. Objective impossibility (force majeure(act of god like earthquakes etc.)/unexpected case)-if are able to
perform the obligation after wait a time it is not objective impossibility.
CHAPTER: 8-INTERNATIONAL LAW

What is territorial water?

What is citizenship?
What is sovereignty?
In this chapter, you will be able to learn constitutive elements of the state. Also, you will briefly study
doctrine related to the origins of the state.

International law has lots of different areas. It deals with different topics.
The law of war and peace
The law of sea
The law of environment
The law of crime
The law of human rights
The law of international organizations
The law of multinational enterprises
The law of non-governmental organizatiıons
The law of individuals

1-The Concept of the State

State is the power or authority represented by a body of people politically organized under one
government, especially an independent government, within a territory or territories having definite
boundaries.
The modern term state is derived from the word “status”. Machiavelli was the first person to use it in his
writings.
The concept of state is a social contract. There is a guarantee for the social order in exchange for which
the citizens agree to reduce their freedom. In other words people come together while leaving some of
their freedom away, requesting a unitary mechanism to protect their rights and protect them from outer
dangers.
There are different definitions of of state because the concept is try to be defined not only under the law
but also political science.
The law of the state is not only about the domestic law but also about the international law. In that respect
you will see domestic law mainly regulating the inner relationship of the inner organization of a state but
the international law is more about the relationship between the states.

When we look at the state from the point view of political science;

The historical form of state may be referred to maybe the times of Sumers
and Egypt.

We cannot definitely give one specific definition to the state.

Although we do not have a very specific and single definition for the
concept of state, we know that the state has three main elements;

2-The Elements of State

If a gathering has these elements we call it state.

2.1 Territory;
Defined area of surface land + airspace above + territorial sea; earth dimension aerial dimension and the
maritime dimension.
It is the safe place that the state has the competence its law. Within that place the population gave up
some of their freedom in order to be in safety within that space, territory. The state includes not only the
lands the earth itself but also the air above and some of the sea that is coastal to that territory.

Standard: 22,224 km
Territorial sea: sovereign territory of the state
Contiguous zone: from territorial sea 24 NM: can prevent infringement
Exclusive economic zone: from territorial sea 200 NM: control on all the economic resources
Turkey: 6 NM
The territory that is accepted as the 12th nautical miles from
its territorial sea baseline. The territorial baseline and 12
nautical miles from the baseline is the territorial sea of the
state. Within this area (red) the state has all the competence
just as the land itself. Not only the lands but also the air
above and the seabed below. This is called the territorial sea.
Within this territorial sea, within the 12th nautical miles
the states will allow only the innocent passage through it. However it has the ultimate sovereignty.
Additional 12 nautical miles to the first 12 NM; a total off 24 NM is the continuous zone. Within this
continuous zone the state has the ability to prevent or punish any infringement of its customs fiscal
immigration or central laws. So if there is an infringement there within this 24 miles it can prevent or
punish but only 12 nautical miles it has the sovereignty, it has the competent authority.
With the additional 176 miles, a total of 200 nautical miles. It is the exclusive economic zone which means
the coastal nation; the nation that is residing here in this area has the authority to fish, mine, explore oil
or gas and everything within these area. However this coastal state cannot prohibit passage or loitering
from above or below this area if that passage is in accordance with the regulations accepted by the UN
convention. Within this exclusive economic zone the state is able to conduct petroleum or gas drillings or
link submarine cables or pipelines for its continental shelf. All these areas include not only the sea itself
but the airspace above and the sea below. All these regulations are applicable to those conditions.

Of course there are some exemptions because there will be not enough space for these 12 nautical miles
or 200 nautical miles and of course there will be wider spaces okay that is also accepted. If there is a wider
space, you can use further areas but it can never be less than 200 nautical miles. However there will be
very close regions within the sharing neighboring countries just like Greece and Turkey. Then you cannot
use 12 nautical miles because if you accept 12 nautical miles just like in the case of Greece and Turkey
then the Greece will be limiting the free passage of Turkey to the international waters which actually has
its own way by being a coastal state in the Mediterranean sea. Therefore there are conflict between Greece
and Turkey.
The main issue that at the very beginning of these measurements the territorial waters were accepted as
the 2 nautical miles then it become three nautical miles then six nautical miles. Now it is international
accepted as 12 NM. When it was three nautical miles there were no problem and at the end of the WWI
it was three nautical miles but as the time passes the Greece requested 12 nautical miles to be applicable.
However it is impossible for Turkey to accept that because if Turkey accepts if will lose all its passages
from the Aegean Sea to the mediterranean sea.
Therefore Turkey is always requesting let's make an agreement on these seas and on these islands.
However Greece is not somehow accepting this offer. Another problem is about a continental shelf and
another problem is about the demilitarization of the aegean islands. At the end of WWII as a result of
Lozan treaty and Paris treaty, Greece has been given lots of islands although most of them closer to the
Turkey's borders , Turkey's coastline however it is the agreement we accepted. But still the main condition
for this kind of separation was demilitarization. Greece also breaches these agreements and mainly claims
that the Turkish boards and Turkish military are trespassing its lands. Therefore there are lots of conflicts
between two militaries and as also the airspace.
These are the main disputes between two countries.

2.2 Population:
The human element

Nationality: genuine link

Mutual duties, obligations and responsiblities

Population is the human element for the state. The population is the people that is living in the given
territory of the state under the state's authority. Although it is generally tried to be explained according
to the nationality however it is not the only content. The population is generally linked through economic,
cultural spiritual and historical traits of one community but they do not need to be one single nation. Of
course the nation states exist because that idea emerged after Machiavelli and the reform movements and
so on. They are mainly the preparations for the WWI but it is not necessary for the population to be from
one single nation. For instance Switzerland; they are a multicultural country.
When we look at the content of the population within the history we see that some philosophers offers
specific numbers for relevant or applicable population but there are so few. For Plato it was 5040 or for
Jean-jacques Rousseau who suggest that is ten thousand. However it is impossible for the modern states
to stay within these limits. There are millions of people and especially with these health cares and modern
medication and so on now we have hundreds and thousands and millions of people as a population for the
states.

Generally, nationality, citizenship are the links between state and population. We should not understand
the nationality as the nation format but more of a citizenship. Each state offers this citizenship through
specific criteria that it accepts through its constitution or relevant regulations. However in order to
establish that criteria there has to be a genuine link between the person and the state that is granting that
citizenship. This criterions generally refers to the parents nationality or place of birth or sometimes you
may see the land that you own in that specific state. However they are always accepted through some
specific international law principles.
In Turkey the nationality is given through the parents nationality. But in the USA the nationality is given
according to the place of birth; when you are born within USA's borders you are accepted as an american
citizen. However that country may also accept the parents nationality as well. So it doesn't have to be one
single criteria.

Citizenship is not a one-way relationship. It is a responsive relationship between the individual and the
state and it gives mutual duties. For instance a tax duty is the duty of the citizen towards the state but also
providing health care services and protection is a duty of the state towards the individual that is its citizen.
Not only real persons but also legal persons such as companies have nationality wherever their head office
states they have that nationality.
For example just Unilever’s head office was in the Netherlands so they were called they were referred as
a dutch company but they moved their head office to the London then referred as an English a UK
company. The ships or airplanes may also have the nationality according to which flag they carry.

2.3 Sovereignty
Sovereignty is the existence of a political organization that exercises its authority over the territory and
population. The sovereignty means the superior power that has the ability to make laws and rule in
accordance. Sovereignty was actually the Aristotle but also within the French jurists Jean Bodin
mentioned sovereignty in a more modern sense. According to him sovereignty means the supreme power
of the state over citizens and subjects unrestrained by the law. Therefore the sovereign determines who
exercises the power. “The supreme political power vested in him whose acts are not subject to any other
and whose will cannot be overridden is the one with the sovereignty”
Duguit says that the commanding power of the state is the will of the nation organized in the state. It is
the right to give unconditional orders to all individuals in the territory of the state.
Burgess states that original absolute ultimate power over the individual subject and all associations of
objects again it is called as the underived and independent power to command and compel obedience. We
have very different definitions. From the point of Jean Bodin we understand the sovereignty and the state
is more related to the morality. However when we look at the writings of Machiavelli especially to his
“prince” we see Machiavelli takes the sovereignty power in an ultimate level that requires everything is
possible to protect that sovereignty. You will see John luck or Montesquiou try to define the sovereignty.
However all these ideas represents some specific characteristics of the sovereignty. There are six of them;
Absolute
Permanent
Universal
Inalienable
Cannot be divided or shared
Exclusive
1- The sovereignty is absolute. There is no greater power than it.
2- It is permanent. It lasts as long as the state lasts. The change will be to the government who use that
sovereign power it may change but the state has the sovereignty. This is also reflected in the international
law and very related to its characteristics of universal acceptance.
3- The sovereignty of the state is universal. In other words if a state is not accepted as sovereign
internationally then it cannot be accepted as a state. Also no association or group of individuals can have
power within the territory of that state because the sovereignty is absolute and universal. Sovereignty
makes no exception and grants no exemption to anyone.
4- The sovereignty is inalienable also because we cannot separate the state and the sovereignty. If the state
leaves its sovereignty apart then it seems to exist. It has to be a sovereign state. Otherwise it will be just
destroyed.
5- Sovereignty cannot be divided between or shared by a plurality. Therefore there is always only one
single united sovereign.
6- Sovereignty is exclusive. It means that it cannot be shared with any other party.

Week 11
The second part of (State Chapter) Kinds of sovereignty
1- Internal and external:
The internal sovereignty is within the territory and the power of state over its population. And the
external is the ability of state to exercise its authority over other states outside its borders.
2- Real and Nominal: We see such case in the modern monarchies such as UK and Denmark as the
queen is the nominal sovereign while the parliament is the real sovereign. The legal sovereign is always
determinant and definite, you know who he/she is.
3- Legal / political / Popular: Legal is about the ability to enact law and regulations, and he has the
authority to accept or change the rules. The legal sovergnity may reside in one single person(monarch)
or it may be reside in group of people like the democratic people. The legal sovereign should be
organized precise and known to the law(should be legal). The legal sovereign has the power to declare
the terms of the will of the state alone. Disobedience to the legal sovereign entails physical punishment
(imprisonment...etc).
Only legal sovereign is the source of the determining rights and it has the right to amend some of them,
in other words taking them back.
The authority of the legal sovereign is absolute, illimitable and supreme. So, it cannot be commanded by
anyone
4- de Jure (legal sovereignty ) / de Facto(fact): de Jure is the sovereignty taken by legal way while de
Facto is the sovereignty taken by force which means illegal way. But is the sovereignty of de Facto
sovereign took a lot of time then it will turns to de Jure sovereign either by changing the law or by
accepting the sovereignty of the de Facto.

Some important concepts

State and society:
Society is prior to the state because it is formed before it. The state came to existence after the formation
of the state. The scope of state is limited to the territory or the population while the scope of the society
is wider as it includes variety of religious, cultural, political, economic interactions and elements.
Unlike the state, the society does not have definite territory such as the islamic society. The state is
political organisation and has the power to enforce law. The society is social organisation and it has no
power to enforce law. But, society has different power such as moral and cultural rules or what we
called “Mahalle baskısı”.
State and nation:
Nation is defined as the people who share common ideas and naturally linked together by some affinities
and united in that context. The nation usually has different feeling, purposes, tendencies and they share
one history.
For the state to be formed no need to have common history or culture, only the willingness to live
together and respect each other is required to form state.

Nation is a modern phenomenon while the state exited since the ancient times. Nation is racial and
spiritual context while state is political and legal context. State can have more that one nation.
State is
formed by heterogeneous groups of people while nation is formed by homogeneous groups of people.
State and government:
Government is part of the state and its power is driven from the law and rules of the state. The
government is temporary and visible because we can see who rule the state. State is permanent and
abstract(invisible) institution and the state has existence of the mind of the people.
Theories of state: 1-Voluntaristic theory(the main one):_ It has three theories: Social contract, automatic
theory and hydraulic hypothesis._ Automatic theory: with the rise of agriculture and the existence of
surpluses people stated to have free time to think and expertise justice, and this lead to the formation of.
Interdependent society and from it the state will emerge.
_ hydraulic hypothesis: The farmers who were trying to support themselves by irrigation and for doing
so they found it is easier to submit voluntarily to the richer and that led to the form of interdependent
society and that formed the state.
Social contract (by Jean-Jacques Rousseau): Human kind is free and they give up some of their freedom
to survive and to reach happiness and hegemony. In the ancient social contract theory, individual was
born free and he decides later sacrifice part of his freedom to have state. While in the modern theory of
social contract, the individual is bored as member of the state form the beginning and he is educated by
the particular characteristics of his nation and state before he will be able to express his own will to
accept that social contract. So, there is kind of force which leads individuals to accept the social contract.
The hoca says this theory is essential because it may be seen even in other theories of state. For
example, the coercive state can start in this way but after long time it does not continue without the
voluntaristic or the willingness of people to carry on. Similarly, in the environmental theory we may see
people accept voluntary to form a state according to their environmental conditions otherwise it does
not succeed.
2- Coercive theory: Coercive power forces people to form a state. Violent domination and the right of
stronger.
3- Environmental circumscription: When the environment forces people to form kind of state. For
example, harsh landscape forces people to immigrate as united nation and fight together it settle in
another place.
4- Political evolution: Political enhancements throughout of history of mankind.
TURKISH COMMERCIAL LAW

Commercial law is a branch of law that deals with commercial activities concerning production, interchange
and consumption. ( commercial relations and organisations)
Turkey has separate commercial law which mainly regulates commercial enterprises.
a- commercial enterprises: any person who operates a commercial undertaking even only in part under
his/her own name is called a merchant. The person who is running the commercial establishment
individually is accepted as a firm. The consequences of being merchant as following:

• - being a subject to bankruptcy

• - using a business title
• - obligation to register their undertakings with the trade registry
• - keeping commercial books which are journal, general ledger and inventory books
• - acting as a prudent business person: a merchant who acts with care in his commercial

relations.
b- business associations: there are two main types of companies, one is sole traders that is a type of
the company in which personalities of partners, their commercial standings, economic powers and
assets remain at the forefront and the second capital company is a group of investors who gain
income from wealthy people who want to grow their wealth. Example types of companies are
collective, commandite, joinstock, limited and cooperatives.
c- commercial papers: (negotiable instruments ) are the bills in which the rights under them cannot
be claimed or transferred to third parties without the using these papers.
d- transport business: regulating transportation law as an independent chapter in one of the
fundamental reforms implemented by the TCC. ( divided into six parties )
e- maritime law relates to trade and navigation at sea and legal transactions about ships and shipping.
f- insurance law: the insurance act deals with issues such as management, organization, operational
principles of insurance companies and intermediaries in Turkey. An insurance contract means a
contract under which the insurer promises, in exchange for a premium, to indemnify a loss caused by
the materialization of the danger having the consequence of harming the interest, measurable money,
of concerned person or to effect payment or to fulfil other performances based on the lifetime or
upon the occurrence of certain events in the course of the lifetime of one or several persons.

LECTURE

--- If you do not operate a commercial enterprise, you are not a merchant and the codes are not
applicable for you.
1- Commercial freedom and application of TCO;the way that code of obligation applied.

the limitation of commercial freedom, rights are usually determined by provision of general regulations
including code of obligation or civil code. In order to protect the rights of third parties, there are specific
restrictions. First parties may not include competitors but consumers.
2- Unfair competition: the abuse of commercial freedom and rights regulated under the concept of unfair
competition. Commercial code protects lawful benefits of a person who acts with care in his commercial
relations. If he or she is careless, they will not be protected. As a general, this is regulated under the principle
of Prudent Businessperson.
3- Special Form: The form of commercial transactions and acts are regulated by the compulsory articles,
therefore, in specific notifications and denunciations, we may need specific forms used.

a few principles of commercial law:

• - the consequences related to violations of the commercial obligations have more serious results
than obligations derived from other legal relations.
• - Commercial and civil courts are specialized in this commercial matters, legal conflicts about
commercial relations.
 • - The legal conflicts about commercial relations are used in Commercial Courts which are civil
courts, specially authorized to solve commercial disputes.
• - Commercial law is applicable to a special group of professionals called ‘merchant’. The scope of
law is limited with the business transactions which are the legal acts constructed at least by one
dealer. If at least one of the parties of the transaction is a merchant, it is presumed that the
transaction is a ‘ commercial affair’.

TERMS:
MERCHANT: is someone who owns or runs a store, or who buys and sells goods for profit.
ENTERPRISE: can be defined as describing an organizational unit, organization, or collection of
organizations that share a set of common goals and collaborate to provide specific products or
services to customers.

COMPETITION: is an event in which many people take part in order to find out who is the best at a
particular activity.
INSURANCE: is an insuring or being insured against loss; a system of protection against loss in
which a number of individuals agree to par certain sums(premiums) periodically for a guarantee that
they will be compensated under stipulated conditions for any specified loss by fire, accident, death,
etc.

BANKRUPTCY: is a legal recognition that a person, organisation, or company does not have
sufficient assets to repay its debts.

CRIMINAL LAW

Someone buy computer from computer company, if he did not pay it, it is not a crime
If some person buys lots of computers and he said I will pay tomorrow and he did not pay. This is a
crime and the computer company can go to the criminal court.
Cutting electricity by Tedaş is not a punishment, it is the result of a contract.
Culpable homicide: Kusurlu cinayet (kız arkadaşını öldüren atlet)
Criminal Law has two distinct branches that are general provisions and specific provisions. Crimes
and punishment have always been the subject matter of criminal law scholars. Several theories
which try to find a fair relation between crimes and punishments are constituted. There are three
main theories that are classical school, positivist school and mixed theory. Classical school used in
early history and positivist school just arrived in a more recent history and mixed theory used
throughout the world.
Classical school: A man essentially a moral creature with an absolute free-will to choose between
good and evil.
*Absolute justice theory: eye for an eye and tooth for a tooth. It is such a retributivist (intikamcı).
Burada kişi için adil olmayabilir çünkü cezalandırılan kişiler topluma daha sonra fayda
sağlayabilecek kişiler ancak cezalandırılınca toplum onları kaybediyor.
*Social benefit theory: In this theory, it is said that when a wrongdoer is punished it is already too
late because there is no social benefit. Burada ise adalet kavramı açısından sıkıntı var. Toplum için
yararlı olan şey kişi için yararlı olmayabilir.
*Compound theory: The punishment should have both justice and social benefit.
Positivist school has two approaches
*Repressive: After occurrence
*Preventive: Before occurrence

Mixed Theory: When the crimes are more economic, natural aspect should be deal with more
positivist manner and the law must be more compassionate. However, when there is a heinous
crime. It must be punished in classical theory.
Definition of crime: A crime is an act which is against the law and is punishable by law.

In order to understand the concept of crime, it is necessary understand of the concept of the
‘’TORT’’

When there is crime (fiil suç olarak belirlendiğinde) there are four elements in classical school.
Legal element: Kanuni unsur, tipiklik. It is related to the main principle: There has to be legal
regulation in order to call there is a crime.

Material element: Maddi unsur. There has to be action. For instance, when you think of killing
someone that is not a crime because there must be an action. There must be causation between the
action and result (illiyet bağı). For instance, if someone stole stone and after that the window broke
but the reason is the earthquake.

Moral element: It has four possible states of mind

Criminal intent: The consequences of an action are both foreseen and desired by the offender.
Recklessness: Offender acts Although he foresees its longing legal consequences he does not care
about consequence.

Conscious negligence: Offender in fact recognizes the real risk of harm but underestimates it or
overestimates his own capabilities, trusting that harm will be averted.
Unconscious negligence: Offender does not think of the possibility of harm because of a lack of
care.

The punishments can change according to intent. For instance, if there is a criminal intent, the
offender took harsh punishment.
Unlawfulness: The act must not be legitimate by any grounds of justification.
a-) execution of statutory provision or execution of superior orders: According to the Turkish
Penal Code 24, If someone fulfills an order that is given by authority, there should not be
punishment for him. However, if the order includes crime, both executor and ordered will be
responsible. ((1) Kanunun hükmünü yerine getiren kimseye ceza verilmez.

(2) Yetkili bir merciden verilip, yerine getirilmesi görev gereği zorunlu olan bir emri uygulayan
sorumlu olmaz.)

b-) Self-Defense: The person try to protect himself from dangers. ( (2) Gerek kendisine gerek
başkasına ait bir hakka yönelik olup, bilerek neden olmadığı ve başka suretle korunmak olanağı
bulunmayan ağır ve muhakkak bir tehlikeden kurtulmak veya başkasını kurtarmak zorunluluğu ile
ve tehlikenin ağırlığı ile konu ve kullanılan vasıta arasında orantı bulunmak koşulu ile işlenen
fiillerden dolayı faile ceza verilmez.)

c-) Exercise of a right: No punishment is given to anyone who uses his rights. (1) Hakkını
kullanan kimseye ceza verilmez.)
The new Turkish Penal Code approach is a little bit different.

Material element: act/result/causation like above and there are also perpetrators, victims and objects
of crime.
Moral element refers to intention and negligence. However, intent and negligence are not types of
guilt but ‘’wrongful conduct’’.
Types of Crimes

Crime may be classified in different ways. For ex crime against body or crime against property.
Turkish criminal law is classified based on three different variables; depends on target. Offences
against the person, offences against the state and offences against property. Sanctions

Turkish Penal Code provides two different type of sanctions: Punishment and Security
Measurement
Punishments also divided two: imprisonment and administrative fines.
İmprisonment:

• ● Heavy life imprisonment: Until death of convict under strict security measures
• ● Life imprisonment: Until death of convict
• ● İmprisonment for definite period: unless exceptions definite imprisonment punishment

may not be less than 3 month and more than 20 year. For one or less than one year
considered as short-term imprisonment. Short-term imprisonment may be converted into;

o ○ Administrative fine
o ○ Reimbursement
o ○ Education, improve personal skill etc
o ○ Prohibition from traveling
o ○ Seizure of some rights or license like driving license

○ Voluntary employment
There are some consequences of exercise of imprisonment man became disqualified

• ● Undertaking of a permanent or temporary some public services

• ● Use right of voting or right to be elected
• ● Use parental right; assignment in the status of guardian or curator
• ● Employment as a manager in some public institutions
• ● To perform a profession or free-lancer or tradesman

Death Penalty has abonded in Turkish Legal system in 2004

Main principle of the Modern Legal System is “There can be no crime without law”.
Principles of it

• ● Certainty
• ● No crime by tradition or custom
• ● No crime by executive acts
• ● No crime by interpretation by analogy
• ● No crime by retroactive application

Principle of Non-Retroactivity
A punishment could not be applied to a crime which has been held on in the past. The aims
of the punishment: there are two main purpose:

• ● To deter particular offender from future criminal offences “special deterrence or

prevention”
• ● To deter others who might be tend to crime “general deterrence or general prevention”
Punishment has five purposes:
• ● Deterrence (caydırma)
• ● İncapacitation (make somebody incapable to do crime)
• ● Rehabilitation (to change his behaviour)

• ● Retribution (removing the desire for personal avengement)

• ● Restitution (financial punishment)