INTRODUCTION TO CIVIL LAW AND PERSONS

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INTRODUCTION TO CIVIL LAW AND

PERSONS

SOURCES OF LAW 1

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SOURCES OF LAW 1

• Sources of law signify the forms that the legal rules appear.

• Some legal rules are regulated as constitution while some other are as code.

• The types of sources of law are as followed:

• Written sources,

• Unwritten sources

• Secondary sources

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SOURCES OF LAW 1

• The written sources of law are:

• Constitution,

• Code,

• Decrees

• Presidential decrees

• International conventions

• Bylaws

• Regulations

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SOURCES OF LAW 1

• Constitution:

• The Constitution is a regulation which indicates the formation of the state and other public

authorities, the type of government, the organs and forces of the state and the relations between them. It also regulates the fundamental rights and liberties as well as the duties of the citizens.

• It stands at the top of the hierarchy of norms.

• All other regulation must be convenient to the constitution. In case of a norm being

contradictory to the Constitution, there is an opportunity to apply to the Constitutionnal Court for cancellation of this norm.

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SOURCES OF LAW 1

• Codes:

• Codes are regulations resulting from the legislation power of the GNAT.

• Codes regulate all subject that areindicated in Constitution and many others.

• Codes are general norms, applied to every citizen.

• There cannot exist a specific norm for a person.

• There cannot be also subjective norms, all norms must be objective.

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SOURCES OF LAW 1

• Codes do not have time limits.

• They will be applied from the moment they entered into force till the moment they will be

changed or cancelled.

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SOURCES OF LAW 1

• The preparation and legislation of codes:

• Codes are written and accepted by GNAT. Code propositions are made by deputies. They will be sent to commissions to be controlled and discussed. The proposition that are

acccepted by the commission, will be voted in General Session in GNAT and they become technically codes.

• These codes will enter into force after the approval of the President. After the approval,

these codes will be published in Official Journal and they will start to bound citizens and

state.

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SOURCES OF LAW II

• Decrees:

• Decress used to exist in Turkish law before the changes in the Constitution dated 2017.

• The Ministerial Cabinet could enact decrees.

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SOURCES OF LAW II

• Presidential Decrees:

• The President of the Republic has the competence to enact decrees according to the article 107 of the Constitution.

• The President cannot enact Presidential Decrees about the matters that are regulated clearly in Codes.

• Codes prevails to the Presidential Decrees.

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SOURCES OF LAW II

• International Conventions:

• International conventions are regulations created by subject of the international law, which creates obligations and rights.

• International conventions about the fundamental human rihts prevail codes. ,

• Other international conventions are equal to codes in hierarchy of norms.

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SOURCES OF LAW II

• Bylaws:

• Bylaws are enacted in order to Show the application of the Codes.

• Bylaws used to exist in Turkish law before the changes in the Constitution dated 2017.

• The esixting bylaws will have the boundary power till they are cancelled.

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SOURCES OF LAW II

• Regulations:

• Public authorities can enact regulations.

• The main purpose of regulations is to show how will the Codes be applied.

• Also, Regulations shouldn’t be contrary to the Codes and Constitution.

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SOURCES OF LAW III

• Beside the written sources of law, there is an unwritten sources of law.

• That source is customary law.

• Customs are common behaviors that are accepted by the whole society.

• The beginning of these behaviors and the aceptance by teh society in unknown.

• The important part is that people have the idea that they have to obey those reals.

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SOURCES OF LAW III

• Custom rules constitute a big part of the social order rules.

• As these rules are applied for a long time period, the socierty has a tendency to obey these rules. This tendency makes these rules a part of the social order rules.

• These rules are not written. In other wordsi they were created by human behaviors and the society’s positive reaction to them.

• There is no rule maker for these rules.

• The society itself is the rule maker of these rules.

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SOURCES OF LAW III

• There are three conditions for a rule to become a rules of the customary law.

• 1. Continuity:

• This is an objective conditioln of the customary law rules.

• For a rule to become a customary law rule, it has to be applied for a long time period.

• There cannot be a fixed time period. The importance is that in this time period, the rules should become «a rule to obey» for a society.

• It also has to be still «a rule to obey» for society in the present time.

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SOURCES OF LAW III

• 2. General acceptance:

• This is the subjective condition for the customary law rule.

• The society must accept this rule.

• People should think that this rule is a part of the social order rules.

• There can be some local rules as well as some more general rules.

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SOURCES OF LAW III

• 3. Sanction:

• For a rule to become a legal rule, it has to be supported by the sanction.

• Although there isn’t any rule maker for a customary law rule, it has a sanction which will be applied by the public authorities.

• Some academics thinks that this condition is not necesarry for a customary law rule.

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SOURCES OF LAW III

• The effects of the customary law rules

• 1. Complementary effect:

• Art. 1 / 2 of the TCC: «In case of a lack of the applicable rule in Code, the judge will decide according to customary law rule …»

• Customary law rules cannot be applied in some law branches. For example in ciriminal

law, they cannot be used for solving a criminal case.

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SOURCES OF LAW III

• 2. Indicative effect:

• Sometimes Codes can make references to customary law rules. In such cases, the customary law rules indicates the spirit and the main tule of the Code.

• 3. Interpretatory effect:

• Sometimes, Customary law rules will show how a rule should be interpretated.

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SOURCES OF LAW IV

• Besides the written and unwritten sources, there are some other sources called secondary sources of law.

• These sources are legal precedents and legal doctine.

• Art. 1 / 3 of the TCC: «Judge will use legal precedents and legal doctrine while deciding

for a case”.

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SOURCES OF LAW IV

• Legal precedents:

• Legal precedents are decisions taken by court in order to solve a case by applying legal rules.

• Every decision must have a legal reasonment.

• These decisions can be taken as examples for future cases.

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