VARIOUS MEANING OF LAW

• Law in Turkish is plural form of Arabic Word «right».

• Law is not defines as rights in Turkish Law.
• Enacted law and ideal law are in fact two different types of law in
philosophical meaning.
• However positive or enacted law constitutes the formal source of law and it
it alse called positive law.
 1. Positive Law

• Positive law is the law in force in a specific country at a specific time.

• This concept includes written legal rules and unwritten legal rules.
• Unwritten legal rules means customs and traditions.
• Law is shaped differently in different countries and this is called national
law.
• Therefore, the law in effect law in effect in Turkey today is Turkish positive
law.
• The law in effect each country is the positive law of that country.
 2. Ideal(Natural) Law

• The legal system that will meet the needs of society in a given country and
in a given time independent from implemented rules and that is mostly
convenient with justice is called ideal law.
• According to ideal law, there must be constant and universal quality rules
that should be dominant everywhere and for all times.
• These rules can founded on the principles of rationality.
 3. Living Law

• Since life is constantly changing, the rules of law have to adapt to this
change.
• However rules of positive law are not able to respond to the needs of time.
• The rules are valid as part of positive law, but since they cannot respond to
the needs of the people they are not applicable.
• Except for dead provisions of positive law, its applicable part is called «living
law».
 Sources of Law

• There are many different sources of law n Turkey.

• Source of law means where rules of law are found.
• It has been used to describe the legal, formal, historical and material
sources of law.
• All rules which are introduced by the organs of the State are written ones
which are published in T.C Resmi Gazete(the official Journal of Turkish
Republic)
 Legislation

• Legislaton is the name of the process used for making laws.

According to article 7 of the 1982 Constitution:
« Legislative power is vested in the Grand National Assembly of Turkey on behalf
of Turkish Nation. This power shall not be delegated.»
 Sources Of
Law

Primary Secondary
Sources Sources

Written Unwritten
Doctrines Case law
sources sources
 Written Sources Unwritten sources

Constitution
International Agreements concerning
fundamental rights and freedoms
International Agreements Customary law
Laws
Presidential Decrees
HIERARCY OF LAW
The Constitution
International Agreements
concerning fundamental
rights and freedoms
Laws/International
Agreements

Presidential Decrees

By-laws
 HIERARCY OF LAW
• T.his issue arises among written sources.
• Accordingly, laws cannot contradict the constitutional provisions.
• Likewise, presidential decrees cannot contradict the constitutional
provisions.
• In the case of a discrepancy between provisions of the presidential decrees
and the laws, the provisions of the laws shall prevail.
• The president of the Republic may issue by-laws in order to ensure the
implementation of laws, provided that they are not contrary thereto.
 1. Constitution

• The constitution is the name of the process used for making laws.
• The constitution in effect today is Turkish Constitution of 1982.
• Various amendments to this constitution have been made on different days.
• Constitution of 1982 is the highest legal rule which binds all state organs and
individual.
• A constitution is a kind of code defining the form and ideology of the state,
the principal organs of government, the rights and duties of the individual
and of the state to the individual citizen and of the legal relationship
between the individual and the state.
 Supremacy and binding force of the
Constitution

ARTICLE 11- The provisions of the Constitution are fundamental legal rules
binding upon legislative, executive and judicial organs, and administrative
authorities and other institutions and individuals.
Laws shall not be contrary to the Constitution.
 Separation of Powers
• As a democratic society, the Powers are seperated and balanced.
• Accordingly the 1982 Constitution regulates the three independent
branches of state as the legislative, executive and judicial.
- «Article 8 of the 1982 Constitution states that:
Executive power and function shall be exercised and carried out by the President
of the Republic in conformity with the Constitution and laws.»
- Article 9 of the 1982 Constitution states that:
- «Judicial power shall be exercised by independent and impartial courts on
behalf of the Turkish Nation.»
 2. International Agreements Concerning
Fundamental Rights And Freedoms

• According to article 90/5 of the 1982 Constitution:

«(…)In the case of a conflict between international agreements, duly put into
effect, concerning fundamental rights and freedoms and the laws due to
differences in provisions on the same matter, the provisions of international
agreements shall prevail.»
 3. International Agreements

• According to article 90/5 of the 1982 Constitution

«Agreements resulting in amendments to Turkish laws shall be subject to the
provisions of the first paragraph. International agreements duly put into effect
have the force of law. No appeal to the Constitutional Court shall be made with
regard to these agreements, on the grounds that they are unconstitutional(…)»
 4. Laws(Acts, Codes, Status)

• Legislative power is vested in the Grand National Assembly of Turkey on

behalf of Turkish Nation. This power shall not be delegated.
• Deputies are empowered to introduce bills.
• The President of the Republic shall promulgate the laws adopted by the
Grand National Assembly of Turkey within fifteen days.
• The Grand National Assembly of Turkey shall convene with at least one-third
of the total number of members for all its affairs, including elections it
holds. Unless otherwise stipulated in the Constitution, the Grand National
Assembly of Turkey shall take decisions by an absolute majority of those
present; however, the majority for decision can, under no circumstances, be
less than one plus a quarter of the total number of members.
 Presidential Decrees
• The President of the Republic may issue presidential decrees on the matters
regarding executive power.
• The fundamental rights, individual rights and duties included in the first and second
chapters and the political rights and duties listed in the fourth chapter of the
second part of the Constitution shall not be regulated by a presidential decree.
• No presidential decree shall be issued on the matters which are stipulated in the
Constitution to be regulated exclusively by law. No presidential decree shall be
issued on the matters explicitly regulated by law.
• In the case of a discrepancy between provisions of the presidential decrees and the
laws, the provisions of the laws shall prevail.
• A presidential decree shall become null and void if the Grand National Assembly of
Turkey enacts a law on the same matter.
• Decrees and by-laws shall come into effect on the date of publication in the Official
Gazette, unless a later effective date is determined
 By-Laws
• The President of the Republic, the ministries, and public corporate bodies
may issue by-laws in order to ensure the implementation of laws and
presidential decrees relating to their jurisdiction, as long as they are not
contrary to these laws and decrees.
• The law shall designate which by-laws are to be published in the Official
Gazette.
• By-laws shall come into effect on the date of publication in the Official
Gazette, unless a later effective date is determined.
 REFERENCES

• Yücel Oğurlu/Bünyamin Gürpınar, Introduction to Turkish Law,2015.

• Mahmut Yavaşi, An Introduction to Turkish Law for non-law students ,2015.
• Fatih Bilgili/Ertan Demirkapı, Hukukun Temel Kavramları, 2019.
• Engin Saygın, Introduction to Law in A Nutshell, 2019.
• https://www.anayasa.gov.tr/en/legislation/turkish-constiution/