INTRODUCTION TO BASIC
PRINCIPLES AND FUNDAMENTAL CONCEPTS OF LAW
SOURCES OF LAW III
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.
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.
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.
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.
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.
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.
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.
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”.
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.
SOURCES OF LAW IV
• Legal doctrine:
• These are texts prepared by academics. They help to teh research and development process.
• They also create the theoretical background of law.
• They are used not only in application of rules, but alos in creation of rules. In other words, rulemakers consider legal doctrinal texts as sources.
