INTRODUCTON TO LAW Fall, 2014 Dr. Özlem Döğerlioğlu Işıksungur

INTRODUCTON TO LAW Fall, 2014 Dr. Özlem Döğerlioğlu Işıksungur
Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

WHY DO WE NEED ORDER? Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

I- SOCIETY AND ORDER Since with the earliest days of recorded history humans have lived in communities Needs To be protected from dangers of natural enviroment İmpossibility of survival in the natüre entirely alone Living in society requires order to regulate relations amongst its members. Because: unregulated social life would be chaos without some degree of order, society can not serve its purpose and can not provide security for its members order, generally speaking, is the condition in which everything is in its right place and functioning properly Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

WHAT İS THE AIM OF THE “ORDER”?

AIM OF THE “ORDER” To regulate attitute and behaviour of individuals against other individuals and society To regulate attitute and behaviour of society against individuals To constitute an equilibrium between conflict of interests Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

SOCIETY AND ORDER Continue…
on the one hand gives freedom, on the other hand limits the freedom. But the most important point is to constitute an equilibrium between individual interest and social interest Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

WHAT IS “ORDER” AS A LEGAL CONCEPT?

DEFINITION OF “ORDER” As a legal concept, order, is the body of laws, rules, regulations and customs that apply to the relations between the members of a certain society. Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

II-RULES REGULATING THE SOCIETY
Composed of Legal Orders (Hukuk Kuralları) Moral Rules (Ahlâk Kuralları) Religious Rules (Din Kuralları) Rules of Good Manners (görgü kuralları) Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

LEGAL ORDER OR LAW Definition:
All rules and principles that regulate and limit the conduct of individuals in a society, Order, that is composed of legal rules and by goverment agency Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

LEGAL ORDER Continue Integral part of social life
The most important and effective order, that regulates the society Regulates attitute and behaviour in the society and enforcement of legal rules realised through State. Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

LEGAL ORDER Continue The aim of the legal order is to ensure the social order. Any problem in the legal order, affects the social order. Legal order, briefly ensures: Peace Confidence Equality Freedom Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

OTHER RULES REGULATING SOCİETY
Moral Rules (Ahlâk kuralları) Religious Rules (Din Kuralları) Rules of Good Manners (görgü kuralları) Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

MORAL LAW Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

MORAL RULES Also called ethics
Definition: Principles or standarts concerning right or wrong conduct Example: to be honest, not to tell lies Define the principles, standarts, and ideas which apply when judging human conduct In every society there exist certain general moral principles,these principles implies that a person’s conduct or character is in conformity with the generally accepted standarts of goodness or rightness Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

A-RELATIONS BETWEEN MORAL AND LEGAL RULES
They are concerned with human conduct. Many legal rules are derived from morality Definition of law All rules and principles that regulate and limit the conduct of individuals in a society Definition of ethics Principles or standarts concerning right or wrong conduct Some actions are both prohibited by both morals&law: Example: Murder Theft Defamation (Hakaret) Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

A-RELATIONS BETWEEN MORAL AND LEGAL RULES- Examples
EXAMPLE 1: To rescue a person injured in an accident Moral duty Legal duty- Article 98 of Turkish Criminal Code (Türk Ceza Kanunu) ARTICLE 98-(1) Any person who fails to render assistance to an old, disabled or injured person at the extent of his ability, or fails to notify the concerned authorities in time, is punished with imprisonment up to one year or punitive fine. (2) In case of death of a person due to failure in rendering assistance or notification of concerned authorities, the person responsible is sentenced to imprisonment from one year to three years. EXAMPLE 2: Good Faith (Dürüstlük-Objektif İyi Niyet) A moral principle Fundamental principle of law by Civil Code Law makes direct reference to moral Article 2 of the Turkish Civil Code (Türk Medeni Kanunu) «Every person is bound to exercise his rights and fulfill his obligations according to the principles of good faith.» Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

EXAMPLE 3: Assistance duty of family members to each other Moral rule Legal rule Article 364 of Civil Code «All persons are bound to contribute towards the maintenance of their ascendants and descendants in the direct line as well as of their brothers and sisters, where without such assistance they would became destitute» Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

EXAMPLE 4: Contradiction to good morals (Ahlakâ- adaba aykırılık) Law refers to moral Article of 27 of the Code of Obligations Contracts which are contrary to good morals are void EXAMPLE 5: Taking good care of spouse to his/her stepchildren Moral duty Legal duty Moral duty is turned into legal obligation Article 338 of Turkish Civil Code “Spouses are also obliged to care and show attention to their minor stepchildren. The other spouse helps the spouse who holds the custody of his/her own child as appropriate, and represents the child for his/her needs to the extent situations and conditions require.” Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

EXAMPLE 7: Contract to testify (şahitlik yapmak) falsely in court or Contract to bribe a judge Void in terms of moral law- contradiction to good morals Void in terms of law---- constitutes criminal offence (suç) IMPORTANT! An immoral contract is not always constitutes criminal offence but these kind of contracts rendered void and unenforceable. The entire contract is in valid (promise to pay- legal but the entire contract is invalid) Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

A-RELATIONS BETWEEN MORAL AND LEGAL RULES-
Important! If the contract’s objective is to achieve an immoral purpose it will be considered void under the law Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

B-PUBLIC and PRIVATE MORALITY
Moral-immoral acts/contracts Standarts ? According to whom? Private moral values- community more values Example Flirtation (flört) Drinking Alcohol may violate the private morality of a conservative individual but; be acceptable under the moral values of general community Whether a contract is moral or immoral General standarts are taken in to consideration NOT subjective moral values of person involved Example: to punish the infidelity (sadakatsizlik) of wife (adultery)- killing the wife Moral obligation or crime? Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

LAW AND JUSTICE Law # justice Justice(Adalet):
Fair/correct outcome of a legal dispute The purpose of every law must be uphold justice Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

QUESTION? What are the Differences between Legal Rules and Moral Rules? Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

CASE STUDY Please discuss the following examples from the point of moral rules and legal rules Case 1 A and B are taking the same “Introduction to Law” lesson A is a hard working student- Midterm exam is AA B’s grade in midterm exam is F A and B enter in to contract under which A promises that she will help B during the final exam. A doesn’t keep the promise and B fails the exam Case 2 The owner of a restaurant refuses to give meals to a starving person because he is unable to pay Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

CASE STUDY Case 3 A and B enter into agreement
A promises to have sexual intercourse with B in return for jewelery (conditional acceptance) Mutual promise Both of them are unmarried Is this contract valid legally and morally? What happens if A refuses to fulfill her obligation? Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

HOMEWORK Page 38 of the book.
Discussion Points--- Discussion from moral and legal point Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

RELIGIOUS ORDER & RULES OF GOOD MANNERS

RELIGIOUS ORDER Relationship between law and religion
In modern system- secular concept In ancient ages religious rules included moral and legal rules Interrelation- law, moralty&religion Example: Ancient Greece and Rome Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

RELIGIOUS ORDER Religion
is belief in a divine (ilahi) or superhuman power or powers, to be obeyed and worshipped (ibadet etmek) as a creator and ruler of the universe one of the the social institutions which regulate human relations ( by establishing rules- limit and regulate relations between people in society) Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

NATURE OF RELIGIOUS RULES
Integration of law and religion- theocratic state religious rules are directly applied to wordly affairs Organisation of the state rests on the will of God -In other words law expresses the will of God Hardly be altered(changed) (without commiting sin)- what about dynamic nature of “law”? –depending upon the political values and changing needs of society Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

SEPERATION OF LAW FROM RELIGION-TURKEY EXAMPLE
Seperation of law from religion is called “secularism” State religion of the Ottoman Empire was Islam- (In written in the first written Constitution of Empire-1876-Kanuni Esasi) Sultan –protector of Islam and he is called as Caliph(Halife) 20 January the first constitution promulgated (yürürlüğe konmak-ilan edilmek)by the National Assembly– 20 April second Constitution, state religion is Islam 1928, the constitutional provision stating that “religion of the State of Turkey is Islam” was deleted- clear sign indicating the abolition of the religious character of the state 1937- through the amendment to Article 2 of the Constitution- secularism principle is introduced Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

THE PLACE OF RELIGION IN TURKISH LAW
Religion as a social institution is among the areas regulated by law With the introduction of secularism, religion ceased to be an institution and doctrine shaping the structure of the State and its legal system. Religious beliefs of citizens are basic liberties protected by law Article 115 of Turkish Criminal Code- Freedom of belief Any person who prohibits or interferes with the perfomance of the services,rites or ceremonies of any religion shall be punished by imprisonment for one to three years- (Madde 115- Cebir veya tehdit kullanarak, bir kimseyi dini, siyasi, sosyal, felsefi inanç, düşünce ve kanaatlerini açıklamaya veya değiştirmeye zorlayan ya da bunları açıklamaktan, yaymaktan meneden kişi, bir yıldan üç yıla kadar hapis cezası ile cezalandırılır.) Article 341 of Turkish Civil Code “Parents shall have the right to decide on the child's religious education. Any agreement restricting this right of the parents shall be invalid. A major shall be free to choose his/her religion”. (Çocuğun dini eğitimini belirleme hakkı ana ve babaya aittir. Ana ve babayı bu konudaki sınırlayacak her türlü sözleşme geçersizdir.Ergin dinini seçmekte özgürdür) Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

THE PLACE OF RELIGION IN TURKISH LAW
Constitution prohibits the exploitation and abuse of religion and religious sentiments for political or personal gain (Constitutional Courtis empowered to ban any political party for acts and actions against this prohibition- Law of Political Parties) Office of Religious Affairs is constitutional organ of the Turkish State- (Constitution Article 136) required to function according to the principle of secularism Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

RULES OF GOOD MANNERS Table manners, formal invitation
Embody the forms and manners established by convention as acceptable or even required in a “polite” society Membership to a club, profession Apply mainly daily life and required conformity to accepted standarts of proper behaviour Widely applicaple to relations in the society In principle they are not legal rules and they are not enforced by law, BUT in some cases they may be part of legal system example: saluting a superior officer in the military Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

DIFFERENCES – LEGAL RULES&OTHER RULES OF CONDUCT???

Homework Study page 47-53 of the book!!!!

DIFFERENT LEGAL SYSTEMS
Every nation has her own domestic (national) law which is different from others Today, in the World there is about two hundred national systems. But generally, there are four main groups. Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

WHAT ARE THESE MAIN LAW SYSTEMS?

DIFFERENT LEGAL SYSTEMS
Civil Law Common Law Islamic Law Socialist Law Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

CIVIL LAW Roman Law Roman Law was the law that was in effect through out the age of antiquity in the City of Rome and later in the territories of Roman Empire The Roman rules became written through the efforts of Emperor Justinianus (called Corpus Iuris Civilis) In the eleventh century in Italy, Roman law started a “new life” in the hands of Italien Professors of law of who taught students coming from various parts of Europe (It should be noted that in this process, Roman rules were amended to suit the domestic conditions and sometimes amalgated with existing traditional rules) Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

CIVIL LAW Continue… In this system, at the begining the purpose of law system to regulate the affairs between citizens That’s why Civil Law (Medeni Hukuk) is at core of the law system Other branches of law, developed under the influence of private law In this system law divided two parts: Private Law & Public Law Private law regulates affairs between private parties Public Law regulates government affairs between public bodies and individuals Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

WHICH COUNTRIES APPLY CIVIL LAW SYSTEM? EXAMPLES?

CIVIL LAW SYSTEM COUNTRIES-EXAMPLES
Continental Europe Latin American Countries Japon Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

COMMON LAW Developed by judges (on a case by case basis)
Principles and concepts based on “judgement of court” Development of “equity law” (to diminish of rigorous customs) Imperfections of the system tolerate by legislation called “statute law” Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

WHICH COUNTRIES APPLY COMMON LAW SYSTEM? EXAMPLES?

THE COMMON LAW SYSTEM COUNTRIES-EXAMPLES
Comprise English-speaking world and territories United States (however in Lousiana and some extent Texas and California, the “Civilian” traditions has influed the system.Because these states were faounded by people of French and Spanish origin.) England Australia New Zealand Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

ISLAMIC LAW Sources of Islamic law is Applied in Islamic Countries
“Quran” attitude and statement of prophet(called “hadith- hadis”) Rules compounded by Islamic Scholars Comparision (Kıyas) Applied in Islamic Countries Based on religious principles Called as “ilm-i fıkıh” Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

SOCIALIST LAW Applied in Cuba, North Korea

WHAT ABOUT TURKEY? WHICH LEGAL SYSTEM IS APPLIED IN TURKEY?

TURKISH LAW SYSTEM In Turkey, until 1926, Islamic law applied.
From the beginning of 1926 with adoption of Code Civil, Turkish Law System is Civil Law system And Turkish Law System based on Private Law, Public Law divison Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

Homework Differences between «civilian» and «common» law systems. Pg: 80-82 Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

CHARACTERISTICS WHICH DISTINGUISH LEGAL RULES FROM OTHER RULES OF CONDUCT

SANCTIONS-CONCEPT The measures taken by the State to make persons comply with legal norms rules of conduct which are supported by sanctions applied by the State. The compulsory measures taken by the State against those who have violated legal norms only legal norms are supported by the state ‘s power of sanction. Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

TYPES OF SANCTION criminal (punishment-ceza)
civil(e.g.,compensation-tazminat) administrative ( e.g revocation of license- lisansın geri alınması An injuction ( yürütmenin durdurulması; tedbir kararı)may also be regarded as a sanction ( It is an order of the court restraining a person from doing something injurious to another’s interst or commanding something to be done for the protection of another’s interest. The injunction is a legal remedy available in disputes between private individuals as well as between the private individual and public authoritiy). Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

TYPES OF SANCTION Common Example of Sanction: Punishment
The law defines certain types of violations of the social order as crimes and provides for the punishment of the offenders by the State. Fine Imprisonment (inflicted on a person for a crime (offense) comitted by him/her,or for his/her failure to perform a duty prescribed by law) Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

TYPES OF SANCTION Another type of sanction: Compensation
If a person inflicts damage (whether material or immaterial) upon another person, or his property, he is legally liable and will have to rectify his wrongful act by paying the injured party an amount of money determined by the Court. Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

REDRESS OF INJURIES legal wrongs: criminal and civil wrongs.
The law redresses injures committed against persons and property in two ways: criminal prosecutions (cezai kovuşturma) where the state punishes those responsible for causing harm or loss to another in a way forbidden by the law civil law actions,where the injured party brings a private suit for damages. Criminal cases--- criminal court Civil cases---- civil court Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

CRIMINAL OR CIVIL CASE? legislative organ decides the appropriate sanction, whether wrongdoer should be punished criminally or by making him/her pay damages to the victim for the harm caused by his/her strongful act. By same act a person commit both a criminal and civil wrong Example: Car accident Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

TYPES OF SANCTION Another types of Sanction: Nullity (Hükümsüzlük)
First category: an act that is contary to a certain statory provision is absolutely inopertative (without effect) from the begining (kesin hükümsüz;batıl). Second category ,acts are not automatically inoperative from the beginning ;they are only voidable acts (iptal edilebilir). Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

TYPES OF SANCTION NULLITY- First category:
A legal act is absolutely null and void ab inito (from the begining) In such case,the parties have been unsuccesful in bringing about the desired result because they have failed to follow some rule or to fulfil some requirement imposed by law. For example , certain transactions must be made according to specific procedures (formalities) laid down by law. If such a transaction fails to comply with these formalities,it will be void from the begining (kesin olarak hükümsüz ,batıl). The act is regarded as “dead” from the beginning and cannot have legal effect. (Marriage-ceremonial contract- authorized person . Failure to obey this rule has the following legal consequences: the man and women will not be considered to be married, if they have children these will be considered illegitimate (born out of wedlock). If one or them dies ,the surviving partner will not have the legal right to inherit.) Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

TYPES OF SANCTION NULLITY- Second category- Voidability
Parties’ choice (or to one of them) to decide whether or not they wish to nullify effect of legal act ( or legal transaction –hukuki işlem ;hukuki muamele) Example :if one of the parties to an agreement has been induced by error(hata,yanılma) or fraud(hile aldatma) or threat (ikrah,korkutma),the aggrieved party may void such a contract by a unilateral (tek yanlı) declaration. But,if she chooses not to annul the act it will, remain valid and binding. Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

APPLICATION OF LEGAL RULES

APPLICATION OF LEGAL RULES
Article 1 of Civil Code Application and sources of law “ The law must be applied in all cases which come within the letter or spirit of any of provisions. Where there exists no applicable provision of law, the judge shall decide according to customary law and, in default thereof, according to the rules that he would lay down if he himself had to act as legislator In rendering his decisions, the judge benefits from legal opinions and case law” Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

APPLICATION OF RULES 1- Provisions of Law 2- Customary Law(Where there is no applicable provision) 3- According to the rules that he would lay down if he himself had to act as legislator (no customary rule applicable) Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

RESOLUTION OF LEGAL CONFLICT
Ascertaining the applicable rules Determining the relevant facts (olgu, vakıa) Application of relevant provisions of law Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

DETERMINING THE FACTS All legal cases must be based on certain facts
The duty of bringing forward evidence of facts for the particular case belongs to IN CIVIL CASES, Plaintiff (Davacı) Generally speaking, the Court is bound by the evidence submitted by the parties IN CRIMINAL CASES Prosecution Generally speaking, if the Court is not satisfied with the evidence submitted, it may seek to obtain further evidence on its own initiative. There are different forms of evidence. Example: Testimony (statements made by the witness in court), written materials, material objects offered as a proof of existence of an alleged fact. Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

DETERMINING THE FACTS The facts,
Example: 1- In DIVORCE case, the first fact which must be proven is that there is legal marriage 2-In eviction (tahliye) case, the plaintiff must prove that he is the owner of the property in question Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

METHODS IN REACHING THE JUDGMENT(VERDICT)
The Court reaches the legal conclusion by applying the relevant provisions of law and taking into consideration, arguments and counter arguments made by the parties in the light of the relevant facts and legal rules.Some methods employed by the court in reaching their judgment are: 1- Syllogism 2- Argumentum a contrario 3- Analogy Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

1- Syllogism: - Logical reasoning Act of thought by which from two given promises(önerme) we proceed to a third premise. Example: Majority(Rüşt) is attained by reaching age of 18 years (legal rule) A has completed his eighteenth year (fact) A has attained majority (judgment,decision) Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

2- Argumentum a contrario: -an argument derived from the opposite of the meaning of a legal rule. Example: -According to the Article 307 of Civil Code, for adoption (evlat edinme), the adopter (evlat edinen) should be at least 30 years old.--- General rule -Persons under 30 cannot adopt a child (legal rule derived through the method of argumentum a contrario) - Mrs. A is younger than 30 years (fact) -Mrs. A cannot adopt a child(judgment) Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

3- Analogy (örnekseme): - a gap in the law is filled through the application of a rule used in similar cases. Example: The law concerning surnames (Soyadı Kanunu) mentions that no repugnant or ridiculous words can be taken as a surname. There is no rule for the first name- there is gap - The gap may be filled by applying the rule concerning the surname to the first name by analogy. Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

BURDEN OF PROOF (ISPAT YÜKÜ)
The facts alleged should be proven. Usuallly, plaintiff has to prove the facts on which the case is based but the defendant may have a burden of proof if he/she raises an “affirmative defense” Affirmative defense, when the defendant does not deny the existence of the facts put forward by the plaintiff but asserts new facts which refute them. Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

Example: A alleges that B agreed to buy A’s book for 100 TL and that failed to pay him the money B does not deny the fact that he took the book from A, but alleges that A did not sell it but gave it as a gift (affirmative defense) and therefore denies the liability. If A proves his assertion B will be bound to pay 100 TL to A If B proves his claim, he will not have to pay to A. Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

WHO MUST PROVE FIRST? Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

In criminal cases, all of the elements of crime with which the defendant is charged with must be proven by the Prosecutor. “Everyone charged with a penal offence has the right to be presumed innocent until proven quilty” (Constitution Art. 38/IV, Universal Declaration of Human Rights Art. 11(1)) Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

The burden proof may shift from one party to an other and claims and counter claims may go back and forth between parties. Article 6 of Civil Code “In the absence of a special provision to the contrary, each party is bound to prove the existence of the facts on which he bases his right (claim)” Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

Whoever commences the legal action has the initial burden of proof but the burden of proof may shift from one party to another in the course of trial First, the plaintiff shall prove the facts on which his case is based If the defendant, raises conter claim as a defence, he shall prove the facts on which his defence is based. Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

Sometimes it may be not easy to determine which party has the burden of proof Example: A alleges that he donated(bağışta bulunmak) to B on condition that B pay %5 interest on this amount to UNICEF each year B accepts the existence of donation, but claims that there was no condition attached to it and therefore he did not pay any money to UNICEF Both parties accept the existence of donation The contraversy is whether there is a condition or not Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

Both parties accept the existence of donation The contraversy is whether there is a condition or not If the existence of condition is proven, then A will have to right to rescind (iptal etmek) the contract Article 6 of Civil Code----fails to provide an answer In this type of situations, it is generally agreed that determination of the party who must prove his allegations is left to the discretion of judge (yargıcın takdir yetkisi) As a general rule, the burden of proof falls on the party who bases his claim on an exceptional or unusual fact. The judge shall decide which claim is based on exceptional or unusual fact. (In our example, the question is- “Is this type of donation usually free of any conditions?” If the answer is yes than A shall prove, if the answer is no then B shall prove that there was no condition attached to donation) In court practice and doctrine, Article 6 of Civil Code is understood as “he who claims the existence of a fact which is contrary to the normal course of events has the burden of proof.” Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

PRESUMPTION Definition: The assumption of the truth of a fact without direct proof Effective procedural device for shifting the burden of proof Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

PRESUMPTIONS (KARINELER)
Natural presumptions established by logic or common knowledge Statutory (Legal) Presumption Rebuttable Presumption Presumptions whose inaccuracy may be proven Irrebuttable (Conclusive)Presumption A fact that the law does not allow to be rebutted Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

STATUTORY(LEGAL) PRESUMPTION- KANUNİ KARİNE
Eg: Presumption of Paternity the father of a child born in wedlock is husband Defendant (husband) shall rebut the presumption by proving that the child is not his Eg: Entries made in public registers and duly authenticated documents Article 7 of Civil Code: “Entries made in public registers and duly authenticated documents are sufficient evidence of the facts which they state” Thus if you base your claim on above mentioned then you are not required to prove the accurancy of the facts mentioned in this entry, because, by law, it is presumed that it is correct. Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

REBUTTABLE PRESUMPTION (ADİ KARİNE)
Presumptions whose inaccuracy may be proven. Examples: Presumption of Innocence (masumiyet karinesi) Presumption of Paternity Presumption of Good Faith Presumption of Ownership Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

REBUTABLE PRESUMPTION: Presumption of Innocence
A person accused of a crime is innocent until proved quilty Turkish Constitution article 38 par. 4 “No one shall be held quilty until proved quilty in a court of law” Fundamental Right The Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe says (art ): "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law". Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

REBUTABLE PRESUMPTION: Presumption of Good Faith
The parties when dealing with each other acted honestly and did not engage in any deceptive acts Article 2 of Civil Code “Every person is bound to exercise his rights and fulfill his obligations according to the principles of good faith” Article 3 of Civil Code “Bona fides is presumed whenever the existence of a legal position is dependent on the observance of good faith. However, no person can plead bona fides in any case where he has failed to exercise the degree of care required by circumstances.” Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

REBUTABLE PRESUMPTION: Presumption of Ownership
Civil Code Article 898 “The person in possession of a movable property is presumed to be its owner” “Taşınırın zilyeti onun maliki sayılır.” Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

PRESUMPTION OF PATERNITY
Civil Code Article 302/I “Defendant is the father of child where it is proved that he cohabited with the child’s mother in the period between the three hunderedth and the one hundered and eightieth day before its birth” “Davalının, çocuğun doğumundan önceki üçyüzüncü gün ile yüzsekseninci gün arasında ana ile cinsel ilişkide bulunmuş olması, babalığa karine sayılır.” Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

INTERPRETATION OF LEGAL RULES Why Do WE NEED INTERPRETATION?
Ambiguous(muğlak), uncertain or vague (kesin olmayan)legal rules The rules are abstract and general It is not possible to make rules that will cover all details of specific and concrete cases that may arise in the future Realities of life are so numerous and variable that the law can only lay down general rules for regulating a certain type of legal institution Intentionally leave the rest to the judge Task of the judge’s to determine the correct meaning of the rule in question When applying the abstract rule to a real case, The judge tries to find the proper and correct meaning of the rule in the light of the facts of case involved. Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

INTERPRETATION OF LEGAL RULES
The Process of discovering and ascertaining the meaning of a written text to apply it to a real case. Only, the interpretation of court have legal and final effect Interpretation Methods: Textual(Literal) (grammatical)Interpretation Historical Interpretation Logical Interpretation Teological Interpretation Unrestricted Interpretation Interpretation in the field of International Law Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

Textual(Literal) (grammatical)Interpretation seeks only to ascertain the meanings of the words and sentences in the applicable legal provision Historical Interpretation analysis of the history of the drafting and adopting of the law in question analyzes the material relating to the debates in the Parliament with yhe purpose of ascertaining the grammatical meaning of the words as they were understood by the members of the Parliament Logical Interpretation The law is ambiguous or There are two or more inconsistent provision The judge shall analyze the law in logical manner, correcting obvious gramatical errors and taking into consideration the spirit of law Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

Teological Interpretation The judge shall ascertain the purpose of the law concerned by analyzing its legislative history within the context of cultural, social and economic values as well as the balance of the interests that existed at the time the law was enacted Unrestricted Interpretation Without any reliance on written text Baed on actual event and the needs created by the conditions prevailing at that time Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

INTERPRETATION IN THE FIELD OF INTERNATIONAL LAW
Literal Method Historical Method Dr. Özlem Döğerlioğlu Işıksungur Source: Prof. Dr. Rona Aybay Introduction to Law 2013

INTRODUCTON TO LAW Fall, 2014 Dr. Özlem Döğerlioğlu Işıksungur

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INTRODUCTON TO LAW Fall, 2014 Dr. Özlem Döğerlioğlu Işıksungur

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