Sources of Turkish Law and

Legal Systems of the World

02.10.2023
Öğr. Gör. Begüm Yiğit
 Sources of Turkish Law

"Sources of law" refers to the collection of contemporary legal rules on

which a judge bases its decision.

1st Source-> written sources of laws, rules or regulations.

 Sources of Turkish Law
Constitution-> 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 btw. the
individual and the state.
Art. 11 of Turkish Constitution-> No law can be contrary to it.
The judicial control of legislative acts under the Constitution is performed
by the Constitutional Court.
Other countries?
 Sources of Turkish Law

Codes
E.g. Civil Code, Penal Code
They have different scopes and applications. E. g. the surname Atatürk was given by a
special act of Parliament.
Rule: Law applies until it is abrogated or changed by a new law.
Exception: There are some laws which apply for a certain period of time. Budget laws
are valid only for one year (Cons. Art. 161)
 Sources of Turkish Law
International Treaties

Approved by the Turkish Grand National Assembly by the enactment

of law.

Like all other statutes, they become enforceable after their publication
in the Official Gazette.

But the constitutionality of treaties cannot be challenged. This is so

that the other parties of treaties may rely on their validity.
 Sources of Turkish Law
Presidential Decrees -> ordinary/ in a state of emergency

(Cons. Art. 104) President can issue decrees on matters regarding his/her
executive power.

The power to issue decrees is subject to certain limitations:

1. President cannot issue decrees on matters regulated exclusively by law.

2. President cannot issue decrees regulating fundamental and individual

rights.
• Recent Istanbul Governorship’s decision?
 Sources of Turkish Law

President has also power to issue decrees in a state of emergency.

Presidential decrees issued in a state of emergency have the force of

codes.

Moreover, the constitutionality of presidential decrees issued in a state

of emergency are not subject to judicial review -> the Constitutional
Court does not have authority to control and cancel presidential
decrees issued in a state of emergency (Cons. Art. 148/1).
 Sources of Turkish Law

By-laws

The President, ministries and other public organizations such as

universities and municipalities may issue by-laws in order to regulate
their internal business or their relations with individuals.

They may not contain provisions contrary to codes or presidential

decrees.
 Sources of Turkish Law

Written laws and regulations are only one source of law.

In some instances, they are inadequate or entirely silent on a matter.

If the legal issue is new and there is no existing law, legal professionals
must find other sources to provide guidance and answers.

What are other sources of law, apart from written laws and
regulations?
 Other Sources

"Customary law" -> consists of a longstanding practice which has been

recognized as being obligatory and binding by the general public.

Under Turkish law, customary rules are of complementary nature, i. e.

the judge may recourse to customary law if there is no written law
applicable to the case (CC Art. 1)
 Other Sources

Court decisions/Precedents

In Turkey, only certain precedents are binding.

Although ordinary court decisions are not legally binding, inferior

courts generally pay attention to them.

Which court decisions are binding?

(Cons. Art. 153) The decisions of the Constitutional Court, which are
officially published, are binding.

Not all decisions of the Court of Cassation or the Council of State are
binding!

Only decisions of the General Assembly on the Unification of

Judgments bind all other courts.
 Other Sources

Doctrine

The writings of legal scholars are not binding on judges, but they are
often persuasive.

In some cases, the views of academicians lead to the formation of law,

especially where the positive law is silent.
 Interpretation of Legal Rules

In determining the meaning of a provision, the actual terms and wording

used in its formulation, should first be taken into consideration.

If there is no doubt as to its meaning and purpose-> the judge/officer

applies the rule automatically. E.g. prohibition of driving over 120 km
per hour on highways.

If the provision is formulated in an abstract and general way and there

are some doubts as to its meaning and purpose-> interpretation methods.
 Methods of Interpretation

Textual (Literal) Interpretation

To ascertain the meanings of words and sentences in the applicable

legal provision

In rare situations, this method is sufficient when the meaning of the

words and sentences are clear enough to be directly applied by the
judge.
 Methods of Interpretation

Historical Interpretation

Based on an understanding by analysis of the history of the drafting

and adopting of the law in question.

Therefore, it involves researching the period of time btw the

preparation of the draft and its enactment.
 Methods of Interpretation

Logical interpretation

Used in situations where the law is ambigous, silent or when there are two
or more inconsistent provisions equally applicable to the same case

The judge will analyze the law in a logical manner, correcting ambiguities
and obvious grammatical errors and taking the spirit of the law.

The judge may depart from literal words to determine legislator's true
intention.
 Methods of Interpretation

Teleological interpretation
According to this approach, the legal rule is regarded as sth which acquires a
life of its own, independent of the legislative process.
Focus on the "purpose of the law" itself, instead of legislator's intent
The concepts and values which dominated the legislative body during the
process of passing the law cannot determine the future application of the law in
individual cases.
 Methods of Interpretation

Free or unrestricted interpretation

Interpretation according to the actual event and the needs created by the
conditions prevailing at that time
The proponents of this method argue against any reliance on the written
wording of the legal rules.
Danger of "contra legem" interpretation-> interpretation against the wording of
the law
LEGAL SYSTEMS OF THE
WORLD
 Legal Systems of the World

In today’s secular world, legal systems may be divided into two main groups in
terms of some basic features:
Continental European (Civil) law vs. Common law
Islamic law?
 Legal Systems of the World

"Civil law" countries are continental Europe, Latin American

countries, Turkey and Japan.

"Common law" countries comprise the English-speaking world and

territories which, in the past, were parts of the British empire such as
Australia or New Zealand.
 Common Law

"Case law"

System of principles and concepts based on court judgments

Court decisions are regarded as a principal source of law.

Common law concepts developed by judges on a case-by-case basis

may eventually become "statutory law" when the legislature chooses to
regulate the matter by legislation.
 Continental European Law

Based on Roman law

Approach: The legislature is the sole source of the new law and the
only lawmaker as such.

Court decisions are not regarded as a principal source of law (and in

principle, not binding).
 CIVIL LAW VS. COMMON LAW
Civil law seeks justice through the questioning of wrongdoer.
Common law is based on dialectic method, that by the forceful opposition of views,
evidence, arguments etc.
Decision-making process: judges (legal professionals) x jury (legal professionals and
laypersons)
The role of the judge-> Judges in civil law countries more involved in the proceedings
whereas common law judges are presumed as a neutral and detached party
E.g. Direct examination vs. Cross examination
 Questions

Which sources of Turkish law (written legal rules) cannot regulate matters
related to the fundamental and individual rights?
Which court decisions are binding under Turkish law?
In the event that the literal interpretation of a legal rule is insufficient, which
methods of interpretation can be used?
What is the main difference about the role of the judge btw. civil and common
law traditions?