ISTANBUL

İSTANBUL UNIVERSITY
ÜNİVERSİTESİ SCHOOL
AÇIK VE OFEĞİTİM
UZAKTAN BUSINESS
FAKÜLTESİ

DEPARTMENT OF COMMERCIAL LAW

BASIC CONCEPTS OF LAW

ASSIST. PROF. ARİF AYLUÇTARHAN

 SOURCES OF LAW

 SUBSTANTIVE SOURCES
 WRITTEN SOURCES
 Constitutional Law
 Law (Codes)
 Presidential Decree
 Bylaws
 NON WRITTEN SOURCE
 Customary Rules

 AUXILIARY SOURCES
 Doctrine
 Juridical –Court Decisions

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 SOURCES OF LAW
 The sources of law are the ways and methods that form and develop
the rules of law.
 Some legal rules occur spontaneously in the society and develop,
which are called customary law.

 In contrast, the majority of legal rules are set by the state's competent
bodies (public institutions). These rules have a written nature and it
is called legal law.

 Some legal rules are created by law enforcement judges, arbitrators

and mediators, and this is called case law.

 The doctrine formed by scientists working in the field of law is

another source.
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SOURCES OF LAW

SOURCES OF
LAW

SUBSTANTIVE AUXILIARY
SOURCES SOURCES

NON CASE LAW

WRITTEN
WRITTEN Judical –Court Doctrine
SOURCES
SOURCES Decisions

Constitutional Law
Customary
Law (Codes) Rules
Presidential Decree
Bylaws

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2.1. SUBSTANTIVE SOURCES OF
LAW

SUBSTANTIVE sources of law are binding.

Real and legal persons and courts (judges) have to apply
these sources and act appropriately.
What these sources are and their order of application are
specified in the 1st article of the Turkish Civil Code.

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2.1. SUBSTANTIVE SOURCES OF
LAW
TCL Art. 1: «The law applies to all matters that it touches on
with its word and substance. If there is no applicable
provision in the law, the judge decides according to the
customary law, If this is not the case, s/he decides
according to whatever rule he would have set if he had
been a legislator. The judge makes use of doctrine and
judical decisions when making decisions.»

 According to TCL Art. 1 Law= written legal rules

[Constitution, Law, International Agreements, / Presidential
Decree by-laws…] and the customary law
SUBSTANTIVE ; case law and doctrine are auxiliary
sources.
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2.1.1. WRITTEN SOURCES

 It is the rules set by the state's authorized bodies.

 These are published in the Official Gazette (except some of
the administrative regulations such as by-laws and
communiqués).
 The written rules of law are called Legislation.
 There is a hierarchy between these rules.

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2.1.1. WRITTEN SOURCES
• Hierarchy of Norms: Among the written sources of law,
there is an order, base-top relationship.
• In the hierarchy of norms, the norm validity in the lower step
takes its validity from the norm in the upper step and must
comply with it.
• The rules in the top row are more general and abstract, while the
sources in the bottom row are specific in terms of the subject they
are regulating and are more concrete.

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2.1.1. WRITTEN SOURCES

Hierarchy
9 of Norms (Kelsen)

Constitution

Law / International
Treaties / Presidential
Decree

By-laws
Anonymous administrative
regulations (Communiqué,
Circular, rulings…)
2.1.1. WRITTEN SOURCES
2.1.1.1. Constitution
 The constitution is the highest written legal norm.
 The Constitution is the highest written source of law that regulates
the basic structure of the state, the form of administration, the
relations of state organs, the fundamental rights and freedoms
of individuals.
 Legislative, executive and judicial bodies have to act in
accordance with the constitution.

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2.1.1. WRITTEN SOURCES
2.1.1.1. Constitution

 Other legal sources (law, Presidential Decree and by-laws) in the

hierarchy of norms must be in conformity with the constitution
and this matter is controlled by the Constitutional Court.
 The sources of law that are against the Constitution are cancelled
by the Constitutional Court and the Council of State or
Administrative Courts.

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Turkish Constitutions
 The first Constitution in the Ottoman Empire was
Kanun-i Esasi dated 1876. Our first Constitution,
the Kanun-i Esasi, is a “edict”, that is the
constitution, which was made and put into effect by
a single person (monarch). It was put into
practice again in 1908.
 Constitution of 1921: It is the first Constitution
composed of a short text on 20 January 1921.
 Constitution of 1924: The Law (No. 491) of
Teşkilat-ı Esasiye dated 20 April 1924 was enacted.
 The 1924 Constitution, which determines the
legislative and executive powers in the Grand
National Assembly of Turkey and collects them in
union therefore it was based on the unity of
forces.
Turkish Constitutions
 The 1961 Constitution adopted the principle
of separation of powers and focused on the
legislative and judicial body.

 1982 Constitution:
2.1.1. WRITTEN SOURCES
2.1.1.1. Constitutions
Main Features of the 1982 Constitution:
 It is a Kazuistik constitution. Detailed provisions have been
introduced.
 It is a strict constitution. It is difficult to replace.
 In the face of the legislative (and judicial) body, the executive is
strong.

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2.1.1. WRITTEN SOURCES
2.1.1.1. Constitution
The supremacy and bindingness of the Constitution(Art. 11):

 Constitutional provisions are basic rules of law binding legislative,

executive and judicial bodies, administrative authorities and other
organizations and individuals.

 Laws cannot be against the Constitution.

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2.1.1. WRITTEN SOURCES
2.1.1.1. Constitution
Superiority and bindingness of Constitutional Court Decisions
(Art. 153/6):
 The decisions of the Constitutional Court are published
immediately in the Official Gazette and is binding for the
legislative, executive and judicial organs, administrative
authorities, real and legal persons. (ALL)

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2.1.1. WRITTEN SOURCES
2.1.1.1. Constitution
 In the material sense, the constitution is called the whole of the
legal rules governing the establishment and functioning of the
basic organs of the state.

 In a formal sense, the constitution is the whole of the rules of law,

which are at the top of the hierarchy of norms, which are different
from laws and can be legislated and amended in a more difficult
way.

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2.1.1. WRITTEN SOURCES
2.1.1.1. Constitution
 The Kazuistik (regulatory) constitution is the constitution that
brings detailed regulations regarding the basic structure of the
state. For example, the 1982 Constitution is a Kazuistik
constitution. It consists of 177 articles and 16 provisional articles.
 The framework constitution is the constitution that only
determines the basic structure of the state and leaves detailed
regulations to the law. For example, the American Constitution is a
framework constitution and consists of 7 articles.

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2.1.1. WRITTEN SOURCES
2.1.1.1. Constitution
 unwritten constitution, it is a constitution consisting of practices
that are constantly repeated and believed to be binding in the
society for a long time. For example, UK does not have a written
constitution.
 written constitution, the competent bodies of the states
(constituent or legislative) are the constitutions that are accepted
by the bodies and where the form of the state and the fundamental
rights and freedoms of the people are specified. Almost all states
in the world have a written constitution.

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2.1.1. WRITTEN SOURCES
2.1.1.1. Constitution

 Soft constitution: It is a constitution that can be changed by the

same laws and procedures by the same laws as normal laws.

 Hard constitution: It is a constitution, which can be changed by

different bodies and more difficult procedures than normal laws.

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2.1.1. WRITTEN SOURCES
2.1.1.2. LAW (CODES)
 Laws are made by the legislature (TGNA).
 It contains general, abstract rules and must comply with the
Constitution.
 They are legislated for continuous application.
 Budget laws are enacted annually, not continuously.

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2.1.1. WRITTEN SOURCES
2.1.1.2. LAW
The Procedure of the Law:
 Lawmakers are authorized to propose the law.
 After the proposals are discussed in the relevant commissions,
they are voted and accepted at the general assembly.
 They become effective by being approved by the President and
published in the official gazette.

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2.1.1. WRITTEN SOURCES
2.1.1.2. LAW (CODE)
The Procedure of the Law:
 The proposal, which is discussed and finalized in the
commissions, comes to the general assembly where at least one
third of the total number of members (600 Deputies) must be
present (200 Deputies). This is called meeting quorum.
 A bill or draft can be accepted by the absolute majority of those
present at the meeting. This is called the decision quorum.
 The quorum for the decision cannot be less than one-fourth (151
Deputies) of the total number of members.

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2.1.1. WRITTEN SOURCES
2.1.1.2. LAW (CODE)
The Procedure of the Law :
 Turkey Grand National Assembly adopted laws issued by the
President within 15 days.
 He sends the laws, which publication he does not find partially or
completely appropriate, to the TGNA to be discussed again,
together with the reason given in this regard.
 In the case of it is partially deemed unsuitable by the President,
the Turkish Grand National Assembly may only discuss the items
that are deemed unsuitable.

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2.1.1. WRITTEN SOURCES
2.1.1.2. LAW
The Procedure of the Law :
 If the TGNA accepts the returned law exactly, the law is published
by the President.
 If the Assembly makes a new amendment to the returned law, the
President may return the amended law back to the Assembly.
 Budget laws cannot be sent back to the Parliament for further
discussion by the President.
 Laws passed by the President are published in the Official
Gazette. If the effective date is not specified in the law, it will enter
into force 45 days after the day following its publication in the
Official Gazette.

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The Constitutional Court monitors the
compliance of laws with the constitution.

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2.1.1. WRITTEN SOURCES
2.1.1.2. LAW (CODES)

 Examination of Laws Compliance with the Constitution:

 Within 60 days of the publication of a law in the Official Gazette,
the President, ruling and main opposition party groups or one-fifth
(120 Deputies) of the total number of TGNA members can file a
lawsuit in the Constitutional Court.
 In a case that is being held in a court, a provision of the law can
also be subject to the procedure by one of the parties to objection
that the rule of law to be applied is conflicting to the Constitution
and that it is accepted by the judge and directed to the
Constitutional Court.

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2.1.1. WRITTEN SOURCES
2.1.1.2. LAW
THE ASSEMBLY regulations The internal regulation, which regulates
the work and activities of the legislative assemblies and is a kind of
parliamentary decision, is described as a silent constitution.
 Assembly internal regulations can be audited by the Constitutional
Court.

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www.tbmm.gov.tr

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2.1.1. WRITTEN SOURCES
2.1.1.3. PRESIDENTIAL DECREE
 The President may issue a Presidential decree on matters of
executive power.
 Fundamental Rights, Personal Rights And Duties in the first
and second sections of the second part of the Constitution,
and political rights and duties in the fourth section cannot be
regulated by the Presidential decree.
 However, in case of emergency, decree may be issued on these
issues. In this case, the decree is submitted to Parliament's
approval. If the Decree issued during the period of emergency is
not approved or negotiated by the Parliament within three
months, it will be repealed. (Cons. art. 104).

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2.1.1. WRITTEN SOURCES
2.1.1.3. PRESIDENTIAL DECREE
 Presidential decree cannot be issued on the issues that are
envisaged to be regulated exclusively by law in the Constitution.
Presidential decree cannot be issued on issues clearly regulated in
the law.
 If there are different (conflicted) provisions in the laws with the
Presidential Decree, the provisions of the law are applied.
 In case of legislating the law in the same issue of Turkey Grand
National Assembly, Presidential decrees become null and void.
 Decrees come into force on the day they are published in the
Official Gazette, unless a date after publication has been
determined.
 It performs the judicial review of the Presidential Decree
(Constitutional audit) by the Constitutional Court.
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2.1.1. WRITTEN SOURCES
2.1.1.4. INTERNATIONAL AGREEMENTS

 The ratification of treaties concluded with foreign states and

international organisations on behalf of the Republic of Turkey, shall be
subject to adoption by the Turkish Grand National Assembly by a law
approving the ratification.(Const. Art.90).
 Agreements regulating economic, commercial or technical relations,
and covering a period of no more than one year, may be put into
effect through promulgation, provided they do not entail any financial
commitment by the State, and provided they do not interfere with the
status of individuals or with the property rights of Turks abroad.
 In such cases, these agreements shall be brought to the knowledge of
the Grand National Assembly of Turkey within two months of their
promulgation.

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2.1.1. WRITTEN SOURCES
2.1.1.4. INTERNATIONAL AGREEMENTS
 Implementation agreements based on an international treaty, and
economic, commercial, technical, or administrative agreements,
which are concluded depending on the authorization as stated in
the law, shall not require approval of the Grand National Assembly
of Turkey.
 However, economic, commercial agreements or agreements
relating to the rights of individuals concluded under the provision of
this paragraph shall not be put into effect unless promulgated.

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2.1.1. WRITTEN SOURCES
2.1.1.4. INTERNATIONAL AGREEMENTS
 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.
 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.

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2.1.1. WRITTEN SOURCES
2.1.1.5. 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
presidential decrees.(Const. Art.124).
 The law shall designate which by-laws are to be published in the
Official Gazette.

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2.1.1. WRITTEN SOURCES
2.1.1.5. By-laws
 In practice, regulations are issued by a ministry, multiple ministries
together or by the presidency.
 The By-laws cannot be against the Constitution, the law and the
Presidential Decree.
 By-laws are subject to supervision in the administrative jurisdiction
as they are administrative procedures.
 A regulation contrary to the upper law norm (Constitution, Law and
Presidential Decree) is canceled by the Council of State or
administrative courts.

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2.1.1. WRITTEN SOURCES
2.1.1.5. By-laws

 In order to be able to issue a regulation, it is not necessary to have an

authority arising from the law. In other words, it does not have to have
a legal basis.

 Not all regulations are published in the Official Gazette.

 The regulation will be audited by the State Council if it is to be

implemented nationwide, and by the competent Administrative Court if
it is to be applied in a particular region of the country.
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2.1.1. WRITTEN SOURCES
2.1.1.7. OTHER WRITTEN SOURCES
 The Communiqué, Circular and, rulings, which we call the rules of
order, are legal norms that are not regulated in the Constitution.
 They are at the bottom of the hierarchy of norms and must comply
with the norms above.
 Judicial review is also conducted by the Council of State and
Administrative Courts.

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2.1.1. WRITTEN SOURCES
2.1.1.7. OTHER WRITTEN SOURCES
 The Communiqué, Circular and, rulings are usually issued to
show how to do internal transactions or work and
transactions between public institutions and organizations
and other citizens.
 Such regulations are issued by public institutions and
organizations such as Presidency, Ministries, Universities,
Supreme Boards.

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2.1.2. NON WRITTEN RESOURCES
2.1.2.1. Customary Rules
 Unwritten primary sources consist of customary rules.

 The rules of conduct that have been settled in a society through

continuous repetition, which are considered to be obligatory
by the community and unknown how long it has been applied are
called customs.

 The customary rules are complementary to the written rules.

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2.1.2. NON WRITTEN RESOURCES
2.1.2.1. Customary Rules
 In order for a customary rule to become a rule of law, the three
elements must coexist.
 Material element (continuity): It should be applied continuously
in the society.

 Spiritual element (general belief): People should feel obliged to

follow these rules.

 Legal element (state sanction): A custom and custom must be

recognized by the state and sanctioned if it is against this rule.

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2.2. AUXILIARY RESOURCES

 Auxiliary sources consist of scientific studies (doctrine) and court

decisions (case law).
 These sources are not binding but guiding. So they set an
example.
 Judges (courts) can take advantage of scientific views and peer
judgments, if they wish, to resolve a concrete dispute; if they want,
they may not consider them (rule).

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2.2. AUXILIARY RESOURCES

 Exception: Landmark Decisions are binding.

 In accordance with the Constitution, the Resolutions of the

Constitutional Court- are binding for all public institutions and
organizations, as well as real and legal persons.

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2.2. AUXILIARY RESOURCES
2.2.1. DOCTRINE
 Doctrine is a scientific study that consists of the opinions,
thoughts and comments about the legal issues and subjects of
people who are engaged in legal science.
 Doctrine contributes to the formation and development of law by
revealing the meaning and scope of legal rules and criticizing and
evaluating judicial decisions.

 Thus, the doctrine helps both the work of the lawmaker and the
courts that resolve the disputes.

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2.2. AUXILIARY RESOURCES
2.2.1. COURT DECISIONS case law
 Case law refers to the principles derived from the decisions made
by courts, which are judicial bodies. However, these decisions are
not binding for the judges who will later apply the rules of law.

 In the case law of the Court, Landmark Decisions constitute the

exception to the stated principle.

 Because these are binding and legal.

 Landmark Decisions are the decisions of high courts to unite with

the courts of local courts.
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 İLETİŞİM BİLGİLERİ
 arif.ayluctarhan@İstanbul.edu.tr

auzef.istanbul.edu.tr

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