YAYINA HAZIRLADIĞIM “INTRODUCTION TO LAW&TURKISH LAW/HUKUKA GİRİŞ VE TÜRK HUKUKU” İSİMLİ KİTABIMDAN BİR BÖLÜM
Bilkent Üniversitesi İktisadi, İdari ve Sosyal Bilimler Fakültesi’nde ders verdiğim 14 yıl içerisinde hazırladığım, ders malzemesi olarak öğrencilere ücretsiz olarak verdiğim, şimdi ise kitap haline getirmek için üzerinde çalıştığım INTRODUCTION TO LAW& TURKISH LAW/HUKUKA GİRİŞ VE TÜRK HUKUKU isimli kitabımın önsözüyle birlikte kısa bir bölümünü aşağıda sizinle paylaşıyorum.
PREFACE
This book is designed for purposes of general education rather than vocational or professional education as such. Thus, it is expected to contribute to general understanding of law and legal processes, and of society and social processes as these interact with the former. So, it is mainly for use in general education survey courses on the nature, functions, sources, systems, theories, philosophy and branches of law offered in high schools and universities. The recent growth of such offerings is evidence of widespread recognition that law can be studied as a humanistic and liberal subject (and not just as a professional one) that every educated person should have some grasp of law. Indeed, general education is to be distinguished from special education. General education is broad and liberal. Special education is technical and prepares the students for a specific vocation or profession. It is true that in Law Schools, law is studied as a specialist’s subject- as preparation for a professional pursuit. But from this it does not follow that law cannot also be a subject for general education. It is fallacious to argue that any subject studied vocationally is automatically disqualified as a subject for general education. Indeed, there is not one course of study which merely gives general culture, and another which merely gives special knowledge. The subject pursued for the sake of general education are all special.
It should be added that an understanding of the nature of the legal order and of legal reasoning is of significant cultural value in itself. So, an understanding of law is essential to an understanding of the values of the society and of the international community. Further, the study of law is an important means of developing the student’s sense of justice and his/her capacity for responsible judgment; and the study of law is also an important foundation in the training of students for the responsibilities of social, economic and political activity.
If law is a minimal social necessity, it is undeniably important both to society and to the students of the society. Law’s importance can be understood even more fully by reflecting on how it can be used to help facilitate individual self-realization. Societies commonly make and use law to help promote health, including a healthful environment; to help reinforce the family and protect private life; to help keep order in the community; to help secure individual freedoms; to help minimize unjust inequalities of opportunity; to help enhance the reliability of exchange relations and to provide redress when they go wrong, to realize justice in the society.
When men use law in these ways, they foster and facilitate individual self-realization. Good family life, health, and community peace obviously contribute to one’s capacity, the reliability of voluntary arrangements made in the exercise of freedom, and the right to have and to hold at least some of what one acquires. In all these uses, law’s ultimate function is facilitative, not restrictive.
In order to make suitable for use in one-semester three-hour courses, the book is organized on six central themes. Part One on Man and Society and it examines the social order rules which we can see nearly in all over the world. Part Two on Law discusses the function and significance of the law, particularly in the light of its purposes, history, philosophy, theories and systems. In this part, the sources of law, the types and interpretation of the legal rules and their methods are also examined. Part Three on Branches Of Public Law discusses Constitutional Law, Administrative Law, Criminal Law, Civil and Criminal Procedural Law, Public International Law, Tax Law, Enforcement and Bankruptcy Law. Part Four on Branches Of Private Law and it introduces the fundamental characteristics and contents of Civil Law, Family Law, Law of Succession, Law of Property, Law of Obligations, Commercial Law and Private International Law. Part Five on Branches of Mixed Character Law examines Intellectual Property Law which covers Patent Law, Industrial Designs, Geographical Indicia, Trademark, Copyright. In this part Competition Law, Consumer Protection Law, Labor Law and Environmental Law are also discussed. Part Six on Human Rights examines the evolution of human rights and the development of the human rights declaration. In this part the European dimension of human rights are also discussed.
PART ONE
SOCIETY & ITS RULES
CHAPTER ONE
MAN AND SOCIETY
Aristotle described man as a zoon politikon, political animal, Marx called man as a working animal, Rodin called man as a thinking animal, but for most religious and philosophical traditions man’s nature is a social animal. It is because man easily makes connections with family, friends, associations and clubs, that is paramount, and it is in this sphere that people find their true nature. (1)
The Old Testament put it that ‘it is not good for man to be alone.’ Indeed, humans become depressed, aggressor, sick, unhappy and confused if they are denied human contact for too long. It is also known that civic organizations teach humans how to live, share, cooperate and to set their own goals with a moral integrity.
Besides, humans life need order. We are sustained by the natural order of sun, air, oxygen and foods and die when that order breaks down. We also depend on social orders that protect us from being attacked. Our livelihood depends on social, legal and economic rules. These rules ensure our social, legal and economic rights. Without the cooperation that order makes possible, human groups and societies would never have been able to gather food, look after children or fend off attackers. (2)
Shortly, we are well designed to function within social order. We are born with the traits that are needed for a healthy social order, including mutual understanding and respect, responsibility, sympathy, a sense of fairness and an instinctive grasp of reciprocity.
We also have psychological needs for social order. Few can live a fulfilled life unless societies protect the space within which we can pursue our own goals, insulated from threats. Faltering social orders show up first in psychical problems and mental illness. Uncertainty and anxiety are disabling. The lack of some basic regularities in life makes it necessary to devote our psychical energy to simple things like not being attacked, not losing a job, investing in a pension or negotiating a difficult relationship.
In order to prevent free-riding, parasitism, abuse and violence society needs some rules. For that Montesquieu wrote that ‘republics are based on men’s virtues and tyrannies on their vices’, but it would be more right to say that a good order both cultivates good inclinations and reins in ones that are unhealthy either for the individual or for the social group. That is what parents do when they bring children up well, and what schools do when they tap into individual’s potential while preventing them from behaving violently or selfishly to their peers. (3)
This dual character, reinforcing some dispositions and discouraging others, is also common to all religions and cultures. It can be found in the Buddhist eightfold path to eliminating desire, the biblical Ten Commandments, and the Code of Hammurabi. Conceived carefully, a social order makes it possible for moral rules to be internalized not only through conscious understanding but also through the habit and repetition which turn constrains into preferences.
We, the humans are well designed to live together in a society. In its broadest sense, society is a particular group of people who has similar aims and interests. In addition, the people of the society also share the same moral values, beliefs, ideological and philosophical opinions, customs, and so on, that makes it possible for them to live together and to keep the peace among them.
Society forms by cells as human beings are. Men and women, families, public and private legal entities, such as companies, associations, foundations, societies, clubs, ministries i.e. are all the cells of the society. Of course, these cells are not tranquil and peace-loving by nature. Even in an organized, ‘civilized’ society, they lie and cheat, steal and fight and all too often kill. So, all societies have developed some ways in order to keep peace and ensure order.
One common way of doing this is to establish a series of rules/norms to be applied in social relations and to enforce them effectively. Otherwise, the human beings cannot live together and the society which they belong cannot live forever. In fact, no society can function without rules, nor does any society run smoothly all the time. There are bound to be friction and difficulties between neighbors, between businessmen and their competitors, between husbands and wives, and between employers and employees. In all these situations the rules help us, avoid trouble where we can and to resolve conflicts fairly where we cannot.
What is the meaning of ‘rule’? What are the kinds and sources of the rules? Briefly, rule is an established standard, guide or regulation. It may be defined as ‘a principle orregulation set up by authority, prescribing or directing action or forbearance ; as, the rules of a legislative body, of a company, court, public office, of the law, of ethics’ and so on. Shortly ‘rules’ are official, and/or accepted, and/or recognized principles and orders which guide our behaviors and show us how things are to be done or not to be done, in various kinds of social relations. (4)
At the beginning, rules are essentially imperative, either negative or positive. They aim to establish desirable behavior or to avoid undesirable behavior by recourse to sanctions in this world or the next. The Ten Commandments immediately come to mind, and are just the most familiar example. For centuries they have been and still are the essential moral code of the world, to the extent that they have been identified with the law inscribed on men’s hearts or in conformity with nature. But one could cite innumerable other examples from the Code of Hammurabi to the Laws of Twelve Tables. The moral world, as we have understood it here, is born with formulation, imposition and application of commands and prohibitions.
Nearly in all societies, including the primitive ones, we can see various kinds of rules which are concerning with or originating from religion, custom, moral, courtesy and law. Such rules are generally called as ‘social order rules’.
CHAPTER TWO
SOCIAL ORDER RULES
Before discussing the types and the peculiarities of the social order rules, the following general points should be noted.
It is a matter of fact that our daily life is full of rules. In this sense, all human activities such as science, technology, religion, arts, sports, politics, economics, education have their own rules. It would be appropriate to say that rules play an important and sometimes a vital role in the life of individuals and of societies. In order to avoid mistakes and suffer serious losses, we must conform to the rules of life and of the society. For example, if we disregard the rules of hygiene, traffic, or legal rules, we may wreck our health, cause accidents, be punished or may be deprived from our rights.
On the other hand, every human is under the restraint of the society which he/she lives in. Indeed, the society forces humans to accept and obey all of its historical, cultural, traditional, social and economic values. As individuals pursuing of happiness, they cannot live, work, product and be happy, if they don’t accept, obey and share the values of the society they belong to.
Of course, it is possible to imagine a society without a legislator, an executive organ, courts or official of any kind. Indeed, there are many studies of primitive communities which not only claim that this possibility is realized, but depict in detail the life of a society where the only means of social control is that general attitude of the group toward its own standard modes of behavior in terms of which we have called ‘social order rules.’
Almost all societies have some rules that regulate the human behavior and the life of the society. As we mentioned above, the kinds of social order rules can be classified as; religious rules, moral rules, rules of courtesy /politeness and lawful norms/legal rules.
a- Religious Rules
It is generally accepted that religion is a social, cultural and historical institution and it is also an individual and social necessity. If you consider the history of the religions more closely, you can easily see that the religious rules are the most ancient kinds of the rules which regulate the society and the relations of the humans. At the primitive stages of the social life and before the state was not become as a centralized political power, the sovereignty was based on religious rules and order.
Accordingly, the religious ideas and concepts were the main sources of law during these periods and legal rules were intertwined with and not easily distinguished from the religious ones. In other words sovereignty and law were associated with religion. Following the division of the political power from the church and after the development of the secular principles of government, the religious rules started losing their influence on the process of making law.
If you look at the holly books, such as the Old and New Testament or Koran, you can see that they put too many rules those regulate the social life and the behaviors of the human beings. By this we mean that religions are not only a system of beliefs, they are also systems of legal, social, political and moral regulator and a total way of life. Thus, Islam constitutes a systematic and coherent ideology, with its own code of morality and doctrine of political and social justice. In Islam, there is no separation between mosque and state. It is a total system not only of belief but of action, with fixed rules for everyday life and a messianic drive to combat or convert the infidel. (5)
According to the religious belief, the rules of the holy books or the religious rules are all orders of the God. So, humans cannot change these rules. They just obey the rules of their religions which they believe. For this reason, religious rules can be qualified as static in character. This is the most important defect of the religious rules. Because society and social life is not static, it is dynamic. Whereas, the conditions and the necessities of the life and the society change continuously.
Because of its static character, the religious rules cannot respond and meet the necessities of the society and the rapid running of the human life. For these reasons, by the evolution of the primitive societies to the modern societies and after the domination of the secularism and the development of legislatures, the importance and the functions of the religious rules as a source of law has increasingly diminished.
Principle of secularism, very briefly, involved not just separation of the state from the religion, but also liberation of the individual mind from restraints imposed by the traditional religious concepts and practices, and modernization of all aspects of state and society that had been molded by religious traditions and ways.
It is essential to keep in mind that the religious rules are still functioned as legal rules in some countries which governed by the principles of the religion, such as Saudi Arabia, Iran and Saudi Arabia.
b- Moral Rules
Society is entitled by means of its laws to protect itself from dangers, whether from within or without. Established government is necessary for the existence of society and therefore its safety against violent overthrow must be secured. But an established morality is as necessary as good government to the welfare of society. Societies disintegrate from within more frequently than they are broken up by external pressures. There is a disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration. Thus, society is justified in taking the same steps to preserve its moral code as it does to preserve its government and other essential institutions.
Society cannot live without morals. As Dostoyevsky pointed out, ‘morals is the cause of the existence of immorality.’ Its morals are those standards of conduct which the reasonable man and woman approve. For these reasons, in every society the behaviors of the humans are classified as good and bad. Moral rules are the consequences of this division. Thus, moral rules based on the principles of right and wrong behaviors and the difference between good and evil. It is necessary to note that, moral rules are the rules which guide us what we are supposed to do in general or in various situations if we want to act honestly and virtuously.
In principle, moral rules develop spontaneously in a social group or society. This means, there are not formally or officially recognized moral rule makers. It is of course, there is not a systematically written and officially recognized texts or formulations of moral rules in any society. In this sense, moral rules are relative in character. In other words, an individual may have his/her own personal moral rules; to the extent such personal moral rules may not be adopted or shared by other people, or do not affect social relations they may only be indirectly social. So, moral rules are sometimes classified as publicly (objective) accepted and shared in a society, and personally (subjective) held by sub-groups or individuals. Particular sub-groups such as lawyers, doctors, teachers, journalists, and others have their professional standards of conduct. Conforming to professional standards of conduct is called ‘code of ethic’ of these professions. In addition, some kinds of moral rules have universal in character. For example, the actions, such as, murdering, lying, stealing, adultery, etc. are not only accepted as crime, but also recognized as immoral actions in all over the world.
The interrelation of law and morals comprise a perennial topic in the writings of legal philosophers. This is also a topic that casts light on the nature of law. It is in the nature of law that it is subject to influences of various kinds, influences that show up in the content of law and its administration.
One of the interrelation between law and morals is that moral ideas tend to influence law. Certainly moral notions have tended to influence the content of penal prohibitions and excuses. It is generally accepted that morals and law have a minimum common core of content consisting mainly of prohibitions against violence, theft, property destruction, and deception. It may be doubted whether the moral and legal codes of any society fail to display this overlap. No doubt jurists want to stress that this overlap is justified not by arguing that since common morality prohibits these things law should too but by arguing that on independent utilitarian grounds these things should be prohibited by law. Of course, there are still other types of interrelations between law and morals.
In fact, most of moral rules have been codified because of their importance and the interrelation between law and morals. For example;
In Turkish Civil and Obligations Codes;
Bilkent Üniversitesi İktisadi, İdari ve Sosyal Bilimler Fakültesi’nde ders verdiğim 14 yıl içerisinde hazırladığım, ders malzemesi olarak öğrencilere ücretsiz olarak verdiğim, şimdi ise kitap haline getirmek için üzerinde çalıştığım INTRODUCTION TO LAW& TURKISH LAW/HUKUKA GİRİŞ VE TÜRK HUKUKU isimli kitabımın önsözüyle birlikte kısa bir bölümünü aşağıda sizinle paylaşıyorum.
PREFACE
This book is designed for purposes of general education rather than vocational or professional education as such. Thus, it is expected to contribute to general understanding of law and legal processes, and of society and social processes as these interact with the former. So, it is mainly for use in general education survey courses on the nature, functions, sources, systems, theories, philosophy and branches of law offered in high schools and universities. The recent growth of such offerings is evidence of widespread recognition that law can be studied as a humanistic and liberal subject (and not just as a professional one) that every educated person should have some grasp of law. Indeed, general education is to be distinguished from special education. General education is broad and liberal. Special education is technical and prepares the students for a specific vocation or profession. It is true that in Law Schools, law is studied as a specialist’s subject- as preparation for a professional pursuit. But from this it does not follow that law cannot also be a subject for general education. It is fallacious to argue that any subject studied vocationally is automatically disqualified as a subject for general education. Indeed, there is not one course of study which merely gives general culture, and another which merely gives special knowledge. The subject pursued for the sake of general education are all special.
It should be added that an understanding of the nature of the legal order and of legal reasoning is of significant cultural value in itself. So, an understanding of law is essential to an understanding of the values of the society and of the international community. Further, the study of law is an important means of developing the student’s sense of justice and his/her capacity for responsible judgment; and the study of law is also an important foundation in the training of students for the responsibilities of social, economic and political activity.
If law is a minimal social necessity, it is undeniably important both to society and to the students of the society. Law’s importance can be understood even more fully by reflecting on how it can be used to help facilitate individual self-realization. Societies commonly make and use law to help promote health, including a healthful environment; to help reinforce the family and protect private life; to help keep order in the community; to help secure individual freedoms; to help minimize unjust inequalities of opportunity; to help enhance the reliability of exchange relations and to provide redress when they go wrong, to realize justice in the society.
When men use law in these ways, they foster and facilitate individual self-realization. Good family life, health, and community peace obviously contribute to one’s capacity, the reliability of voluntary arrangements made in the exercise of freedom, and the right to have and to hold at least some of what one acquires. In all these uses, law’s ultimate function is facilitative, not restrictive.
In order to make suitable for use in one-semester three-hour courses, the book is organized on six central themes. Part One on Man and Society and it examines the social order rules which we can see nearly in all over the world. Part Two on Law discusses the function and significance of the law, particularly in the light of its purposes, history, philosophy, theories and systems. In this part, the sources of law, the types and interpretation of the legal rules and their methods are also examined. Part Three on Branches Of Public Law discusses Constitutional Law, Administrative Law, Criminal Law, Civil and Criminal Procedural Law, Public International Law, Tax Law, Enforcement and Bankruptcy Law. Part Four on Branches Of Private Law and it introduces the fundamental characteristics and contents of Civil Law, Family Law, Law of Succession, Law of Property, Law of Obligations, Commercial Law and Private International Law. Part Five on Branches of Mixed Character Law examines Intellectual Property Law which covers Patent Law, Industrial Designs, Geographical Indicia, Trademark, Copyright. In this part Competition Law, Consumer Protection Law, Labor Law and Environmental Law are also discussed. Part Six on Human Rights examines the evolution of human rights and the development of the human rights declaration. In this part the European dimension of human rights are also discussed.
PART ONE
SOCIETY & ITS RULES
CHAPTER ONE
MAN AND SOCIETY
Aristotle described man as a zoon politikon, political animal, Marx called man as a working animal, Rodin called man as a thinking animal, but for most religious and philosophical traditions man’s nature is a social animal. It is because man easily makes connections with family, friends, associations and clubs, that is paramount, and it is in this sphere that people find their true nature. (1)
The Old Testament put it that ‘it is not good for man to be alone.’ Indeed, humans become depressed, aggressor, sick, unhappy and confused if they are denied human contact for too long. It is also known that civic organizations teach humans how to live, share, cooperate and to set their own goals with a moral integrity.
Besides, humans life need order. We are sustained by the natural order of sun, air, oxygen and foods and die when that order breaks down. We also depend on social orders that protect us from being attacked. Our livelihood depends on social, legal and economic rules. These rules ensure our social, legal and economic rights. Without the cooperation that order makes possible, human groups and societies would never have been able to gather food, look after children or fend off attackers. (2)
Shortly, we are well designed to function within social order. We are born with the traits that are needed for a healthy social order, including mutual understanding and respect, responsibility, sympathy, a sense of fairness and an instinctive grasp of reciprocity.
We also have psychological needs for social order. Few can live a fulfilled life unless societies protect the space within which we can pursue our own goals, insulated from threats. Faltering social orders show up first in psychical problems and mental illness. Uncertainty and anxiety are disabling. The lack of some basic regularities in life makes it necessary to devote our psychical energy to simple things like not being attacked, not losing a job, investing in a pension or negotiating a difficult relationship.
In order to prevent free-riding, parasitism, abuse and violence society needs some rules. For that Montesquieu wrote that ‘republics are based on men’s virtues and tyrannies on their vices’, but it would be more right to say that a good order both cultivates good inclinations and reins in ones that are unhealthy either for the individual or for the social group. That is what parents do when they bring children up well, and what schools do when they tap into individual’s potential while preventing them from behaving violently or selfishly to their peers. (3)
This dual character, reinforcing some dispositions and discouraging others, is also common to all religions and cultures. It can be found in the Buddhist eightfold path to eliminating desire, the biblical Ten Commandments, and the Code of Hammurabi. Conceived carefully, a social order makes it possible for moral rules to be internalized not only through conscious understanding but also through the habit and repetition which turn constrains into preferences.
We, the humans are well designed to live together in a society. In its broadest sense, society is a particular group of people who has similar aims and interests. In addition, the people of the society also share the same moral values, beliefs, ideological and philosophical opinions, customs, and so on, that makes it possible for them to live together and to keep the peace among them.
Society forms by cells as human beings are. Men and women, families, public and private legal entities, such as companies, associations, foundations, societies, clubs, ministries i.e. are all the cells of the society. Of course, these cells are not tranquil and peace-loving by nature. Even in an organized, ‘civilized’ society, they lie and cheat, steal and fight and all too often kill. So, all societies have developed some ways in order to keep peace and ensure order.
One common way of doing this is to establish a series of rules/norms to be applied in social relations and to enforce them effectively. Otherwise, the human beings cannot live together and the society which they belong cannot live forever. In fact, no society can function without rules, nor does any society run smoothly all the time. There are bound to be friction and difficulties between neighbors, between businessmen and their competitors, between husbands and wives, and between employers and employees. In all these situations the rules help us, avoid trouble where we can and to resolve conflicts fairly where we cannot.
What is the meaning of ‘rule’? What are the kinds and sources of the rules? Briefly, rule is an established standard, guide or regulation. It may be defined as ‘a principle orregulation set up by authority, prescribing or directing action or forbearance ; as, the rules of a legislative body, of a company, court, public office, of the law, of ethics’ and so on. Shortly ‘rules’ are official, and/or accepted, and/or recognized principles and orders which guide our behaviors and show us how things are to be done or not to be done, in various kinds of social relations. (4)
At the beginning, rules are essentially imperative, either negative or positive. They aim to establish desirable behavior or to avoid undesirable behavior by recourse to sanctions in this world or the next. The Ten Commandments immediately come to mind, and are just the most familiar example. For centuries they have been and still are the essential moral code of the world, to the extent that they have been identified with the law inscribed on men’s hearts or in conformity with nature. But one could cite innumerable other examples from the Code of Hammurabi to the Laws of Twelve Tables. The moral world, as we have understood it here, is born with formulation, imposition and application of commands and prohibitions.
Nearly in all societies, including the primitive ones, we can see various kinds of rules which are concerning with or originating from religion, custom, moral, courtesy and law. Such rules are generally called as ‘social order rules’.
CHAPTER TWO
SOCIAL ORDER RULES
Before discussing the types and the peculiarities of the social order rules, the following general points should be noted.
It is a matter of fact that our daily life is full of rules. In this sense, all human activities such as science, technology, religion, arts, sports, politics, economics, education have their own rules. It would be appropriate to say that rules play an important and sometimes a vital role in the life of individuals and of societies. In order to avoid mistakes and suffer serious losses, we must conform to the rules of life and of the society. For example, if we disregard the rules of hygiene, traffic, or legal rules, we may wreck our health, cause accidents, be punished or may be deprived from our rights.
On the other hand, every human is under the restraint of the society which he/she lives in. Indeed, the society forces humans to accept and obey all of its historical, cultural, traditional, social and economic values. As individuals pursuing of happiness, they cannot live, work, product and be happy, if they don’t accept, obey and share the values of the society they belong to.
Of course, it is possible to imagine a society without a legislator, an executive organ, courts or official of any kind. Indeed, there are many studies of primitive communities which not only claim that this possibility is realized, but depict in detail the life of a society where the only means of social control is that general attitude of the group toward its own standard modes of behavior in terms of which we have called ‘social order rules.’
Almost all societies have some rules that regulate the human behavior and the life of the society. As we mentioned above, the kinds of social order rules can be classified as; religious rules, moral rules, rules of courtesy /politeness and lawful norms/legal rules.
a- Religious Rules
It is generally accepted that religion is a social, cultural and historical institution and it is also an individual and social necessity. If you consider the history of the religions more closely, you can easily see that the religious rules are the most ancient kinds of the rules which regulate the society and the relations of the humans. At the primitive stages of the social life and before the state was not become as a centralized political power, the sovereignty was based on religious rules and order.
Accordingly, the religious ideas and concepts were the main sources of law during these periods and legal rules were intertwined with and not easily distinguished from the religious ones. In other words sovereignty and law were associated with religion. Following the division of the political power from the church and after the development of the secular principles of government, the religious rules started losing their influence on the process of making law.
If you look at the holly books, such as the Old and New Testament or Koran, you can see that they put too many rules those regulate the social life and the behaviors of the human beings. By this we mean that religions are not only a system of beliefs, they are also systems of legal, social, political and moral regulator and a total way of life. Thus, Islam constitutes a systematic and coherent ideology, with its own code of morality and doctrine of political and social justice. In Islam, there is no separation between mosque and state. It is a total system not only of belief but of action, with fixed rules for everyday life and a messianic drive to combat or convert the infidel. (5)
According to the religious belief, the rules of the holy books or the religious rules are all orders of the God. So, humans cannot change these rules. They just obey the rules of their religions which they believe. For this reason, religious rules can be qualified as static in character. This is the most important defect of the religious rules. Because society and social life is not static, it is dynamic. Whereas, the conditions and the necessities of the life and the society change continuously.
Because of its static character, the religious rules cannot respond and meet the necessities of the society and the rapid running of the human life. For these reasons, by the evolution of the primitive societies to the modern societies and after the domination of the secularism and the development of legislatures, the importance and the functions of the religious rules as a source of law has increasingly diminished.
Principle of secularism, very briefly, involved not just separation of the state from the religion, but also liberation of the individual mind from restraints imposed by the traditional religious concepts and practices, and modernization of all aspects of state and society that had been molded by religious traditions and ways.
It is essential to keep in mind that the religious rules are still functioned as legal rules in some countries which governed by the principles of the religion, such as Saudi Arabia, Iran and Saudi Arabia.
b- Moral Rules
Society is entitled by means of its laws to protect itself from dangers, whether from within or without. Established government is necessary for the existence of society and therefore its safety against violent overthrow must be secured. But an established morality is as necessary as good government to the welfare of society. Societies disintegrate from within more frequently than they are broken up by external pressures. There is a disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration. Thus, society is justified in taking the same steps to preserve its moral code as it does to preserve its government and other essential institutions.
Society cannot live without morals. As Dostoyevsky pointed out, ‘morals is the cause of the existence of immorality.’ Its morals are those standards of conduct which the reasonable man and woman approve. For these reasons, in every society the behaviors of the humans are classified as good and bad. Moral rules are the consequences of this division. Thus, moral rules based on the principles of right and wrong behaviors and the difference between good and evil. It is necessary to note that, moral rules are the rules which guide us what we are supposed to do in general or in various situations if we want to act honestly and virtuously.
In principle, moral rules develop spontaneously in a social group or society. This means, there are not formally or officially recognized moral rule makers. It is of course, there is not a systematically written and officially recognized texts or formulations of moral rules in any society. In this sense, moral rules are relative in character. In other words, an individual may have his/her own personal moral rules; to the extent such personal moral rules may not be adopted or shared by other people, or do not affect social relations they may only be indirectly social. So, moral rules are sometimes classified as publicly (objective) accepted and shared in a society, and personally (subjective) held by sub-groups or individuals. Particular sub-groups such as lawyers, doctors, teachers, journalists, and others have their professional standards of conduct. Conforming to professional standards of conduct is called ‘code of ethic’ of these professions. In addition, some kinds of moral rules have universal in character. For example, the actions, such as, murdering, lying, stealing, adultery, etc. are not only accepted as crime, but also recognized as immoral actions in all over the world.
The interrelation of law and morals comprise a perennial topic in the writings of legal philosophers. This is also a topic that casts light on the nature of law. It is in the nature of law that it is subject to influences of various kinds, influences that show up in the content of law and its administration.
One of the interrelation between law and morals is that moral ideas tend to influence law. Certainly moral notions have tended to influence the content of penal prohibitions and excuses. It is generally accepted that morals and law have a minimum common core of content consisting mainly of prohibitions against violence, theft, property destruction, and deception. It may be doubted whether the moral and legal codes of any society fail to display this overlap. No doubt jurists want to stress that this overlap is justified not by arguing that since common morality prohibits these things law should too but by arguing that on independent utilitarian grounds these things should be prohibited by law. Of course, there are still other types of interrelations between law and morals.
In fact, most of moral rules have been codified because of their importance and the interrelation between law and morals. For example;
In Turkish Civil and Obligations Codes;
- The principle of good faith which can be defined as the conformance to the general understanding of law, justice and morality (Article 2-3).
- Simulation (fictious transactions/Article 19)
- Error (a mistake/Article 30-31-32-33-34-35)
- Fraud (deceitful behavior for the purpose of making money, etc./Article 36) Duress (illegal or unfair threat/Article 37-38)
- Lesion (inequality in contract/Article 28)
Morals affect not only the content of law but its administration, too. Indeed, law relies on moral. It receives large assists from morals in discharging some of its assigned jobs. Morals, too, relies and depends on law. For example, a moral prohibition against theft presupposes some law by which ownership is determinable. Further, law may even help reinforce morals and morals may help reinforce law.
For a time, at least, a sagging moral tenet may hang on with law’s help. As Justice Holmes who was one of the distinguished chief judge of the American Supreme Court once put it that, ‘the law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race.’
c- Rules of Courtesy (Politeness)
Literally and shortly, courtesy is polite behavior. Rules of courtesy guides us how to dress, to visit, to sit, to speak, to eat, to listen and so on. Rules of courtesy are concerned with the limited aspects of social relations and these aspects, of course, are not vital for us. But, it is an important means to make easier for us to live with another. In addition, the rules of courtesy have a function of pressure. Generally these rules indicate what is supposed to be done in various situations involving human relations, if one is to act politely or courteously. For example, rules of courtesy or politeness are ordered us do not use our mobile phone in a theater or concert hall, or do not talk while our mouth is full, or do not speak by high volume, and so on.
d- Legal Rules
We know that the rules of religion, morals, custom and courtesy are all necessary, but they are not enough and influential to organize the society and social relations. In order to regulate social relations among the humans, to establish and keep the order, security and peace of the society, it is necessary to create and develop other requirements. Thus, legal rules are created for this necessity.
As all other rules, legal rules are also prescriptions for the conduct of men in various situations. These rules regulate the exterior relations of the humans. Indeed, for humans to live in a society means relations. Because a society does not exist from humans, it also exists from relations. These relations are inevitable and a part of them is essential for the continuation of the society and for the survival of humans. On the other side, relations mean problems or conflicts. In other words, not all relations but many of them bring problems and conflicts between persons. So, legal rules serve to solve the problems and conflicts between the humans. Besides, legal rules aim to protect the life of the society, to provide security, order, freedom and peace in the society. So, the aims and functions of the legal rules are nearly the same as the rules of religion, morals, custom and courtesy.
At this point it is necessary to say that there is a close and interactive relationship between all the social order rules. So, they affected each other continuously. Due to this effectiveness some of the moral and religious rules have been converted to the legal rules, or some of them have been lost their power. For example, the acts of robbery, stealing and murdering which are contrary to the religions and morals became a legal rule.
Since the need for the legal rules was born out of the necessity to regulate the communal life, each society was created by the sovereign power having authority to issue orders and instruction to the people. Sovereign powers were instrumental in both making law by converting the usages into custom and establishing written rules in the later stages. While in most of the cases the sovereign power is directly involved and responsible in the creation of the legal rules, in some others their creation is performed by different organs or entities, but their validity is still based on the approval and acknowledgment by the sovereign power.
e- Comparison of the Social Order Rules
Historically speaking, in primitive societies law is a mixed of morals, religion, custom and courtesy. However, religious rules are at the center of the other rules. So, in such societies it was not easy to distinguish the special features of the social order rules. But after the development and advancement of civilization and appearance of secularism, social order rules were separated from each other. So, today it is more easier to distinguish them. But still the criteria of their distinction are not certain, except their sanctions. So, the key factor of divergence between them is sanction.
The vocabulary meaning of sanction is the following: ‘It is an action that forces the keeping of a rule or standard.’ Its legally meaning is that, ‘it is a penalty or other mechanism of enforcement used to provide incentives for obedience with law or with rules and regulations.’
Of course, all social order rules have a sanction. In fact, legal sanctions are different than the sanctions of the other social order rules. The characteristic feature of legal sanction is the legitimate use of force and compulsion by the state. It is essential to keep in mind that, the legal rules are made to be applied. They are expected to be observed and their observance is in principle compulsory. If legal rules are not complied with to a large extent that is if the discrepancies between what the laws say and what the realities are widespread and chronic, these may eventually have the same effect of lawlessness in a society with its ensuing consequences. All legal systems therefore include rules to assure obedience to laws. These rules show the consequences of non-observance and how people be forced to abide by laws. The consequences of non-observance of the legal rules are again stipulated by legal rules and as we mentioned above they are called ‘legal sanctions; and the coercion to be used to implement these sanctions is called ‘the law enforcement’. The enforcement of the law by means of coercion is carried by the organized and authorized forces of the state. In other words, the state has ‘monopoly of coercion’, and this coercion is a legitimate one, if it is used in the boundaries of the law.
As mentioned above, legal sanctions can only be regulated by law. So, they cannot be arbitrary, haphazard and can ultimately be implemented only by the state power, not by the persons. For instance, Article 81 of the Turkish Penal Code states that: ‘Whoever kills a person intentionally shall be condemned to a life sentence.’ This is a prescriptive compulsory legal rule for it prohibits a certain act and require absolute observance from everybody. It also indicates the sanction to be inflicted upon the violators; to be put in a prison for at least 24 years.
On the other side, when we consider the sanctions of other social order rules, these are not backed by the legitimate force of the state. In other words, moral, religious and courtesy rules have not compulsory and material sanctions as the legal rules have. For example, religious rules have moral sanctions which will be applied after death. Rules pertaining to morals and courtesy are not supported by state authority, but only imposed by the common sense of society which is called social pressure. So, the sanctions of disobeying of moral, religious, custom and courtesy rules are only the reaction of the third persons. This reaction may be blamed, shamed, censured, subject to disapproval or ostracism.
It should be noted that moral, religious, customary and courtesy rules are generally single-sided or unilateral rules. On contrary, legal rules are generally double-sided/bilateral rules. Because, legal rules consist of both rights and obligations. For instance, a person obliged to do something, has also the right to request the execution of the contrary obligation of the other party, who is in legal relation with him. Again legal rules are generally written, whereas rules of courtesy, morals and some of religious rules are not written.
In addition, religious rules and some types of moral and courtesy rules cannot be changed. If they are changeable in quality, they cannot change as fast as the codes can. Indeed, in case of necessity the codes can be amended. Because, the legislature is responsible to follow the social, political, cultural, and technological developments and needs of the society, and if it is necessary the legislature must adopted the codes governing these developments.
PART TWO
LAW
CHAPTER ONE
DEFINING LAW
No one has neatly defined law in all its aspects. Thus, Immanuel Kant said that; ‘Still, jurists are looking for the definition of law.’ However, some brief and simple definitions of law are the following: ‘Law is a set of public and enforceable rules that apply through a political community’; ‘Law is the sum total of the rules men and women live by if there is to be any order’: ‘Law is the set of rules that we have established to make easier for us to live with one another’; ‘The set of rules of conduct prevailing and governing the relations in a given society at a given time and which are enforced by the sanctions laid down by the sovereign power.’
In this sense, it is a rule or method according to which phenomena or actions co-exist or follow each other. Law, in its generic sense, a body of rules of action or conduct prescribed by controlling authority, and having binding legal force. That which must be obeyed and followed by citizens subject to sanctions or legal consequences is a law. The word may mean or embrace; body of principles, standards and rules promulgated by government constitution or constitutional provision; statute or enactment of legislative body; administrative agency rules and regulations; judicial decisions, judgments or decrees; municipal ordinances; or long established local custom which has the force of law. With reference to its origin, law is derived either from judicial precedents, from legislation or from custom.
In Turkish , the etymological meaning of law is that, it is the plural form of ‘right.’ In other word law means ‘rights.’
By the reference of above descriptions, we can infer three most salient features of law as follow:
It is normative: It means law is full of norms/rules. Thus, these norms/rules serve and in fact is meant to serve as a guide for and to set rules governing the human behavior in society. Consequently, law becomes on the other hand an instrument for creating, maintaining and changing the society.
It is institutionalized: It is because, its creation, modification and application is performed and regulated by the legal institutions. These institutions are established by the relevant legal rules. On the other hand, law being institutionalized, in other words itself having the nature of and structured as an institution, is one feature, which secures legal safety and predictability.
It is coercive: Obedience to law and its application are ensured by the sovereign power, ultimately, by the use of force. So, coercion, or using force is the stick of law. Coercion is applied by the sanctions of law. Without the element of sanction, no rule can be characterized as a legal rule. However, it must also be pointed out that the sanction itself is an integral part of the legal rule, otherwise it would stand out as a brute force.
Every society, from the most remote tribe to the most technologically advanced culture, has rules by which it operates. Most societies have written rules governing behavior and a set of punishments for those who break the rules. These can be called the society’s laws. Without any rules of behavior, life in a group would be difficult, if not impossible. The study of law is called ‘jurisprudence.‘
The role of law in society depends and relies on the society. It varies from era to era, culture to culture, country to country, region to region, and sometimes town to town. Different cultures have different ideas of what is right and wrong and what should be legal or illegal. Recall that jurisprudence is the study of law. Over the years, philosophers, lawyers, judges, and social scientists have developed theories about how laws develop and are accepted by cultures. These theories of law are referred to as ‘schools of jurisprudence.’ Some of the major and important theories and schools are examined in the following parts of this text.
Law is essentially instrumental in character and thus serves as one means for dealing with social problems. So, organized societies today typically use law to deal with a wide range of social problems. Further, law deals with the full range of human problems which with all their variety and color have been the domain of the novel and the drama. Because, ‘law is a good window as any through which to look at life.’
Romans’ had a maxim; ‘Ex facto ius oritur’ which means that, ‘Law grows out of facts.’ It is right, because, law has grown out of thousands of years of experience and it is still growing and changing as our society grows and changes. In this sense, law is also sensitive to history, because in one way law is history. Thus, today the legal systems of many countries are based on the Roman, Greek and Common Law traditions or Islamic law or Canon Law rules.
Man uses law as an instrument to serve human purposes. Legal resources are means to social ends. The faith of man that he can affect destiny through law is one of the most enduring tenets of humanism. From this it follows that law is fundamentally humanistic in character.
Law is always engaged in translating the values of society into legal norms. All laws involve the resolution of issues of policy, and under the Turkish system of a written constitution and constitutional review, adjudication of constitutional issues brings the larger issues of the day into dramatic focus. The law is thus a remarkable repository of dramatic debate over values.
Law may be also defined as the entire regulations put in force to regulate the social life by means of statutory sanctions applied by the state. But it does not consist of only codes and articles of the codes, by which legal conflicts are to be solved. It is also a social culture and intelligence, so law needs a great amount of social consciousness and knowledge about the basic universal norms handled from generations to generations, covering not only grammatical but also logical and historical interpretation.
No society can live long without law or some kind of legal system. Thus, Romans are said that ‘Ubi societas, ibi ius’, which means ‘Where there is a society, there is a law.’ Historically all societies have learned by reasons and by experiences that they need law.
Law reflects society. A simple rural community needs relatively a few codes or a simple legal system. But a complex industrial society needs a complicated legal framework. In addition, the governmental system of a state affects the qualification of the codes and the legal system of a state. Indeed, the legal systems of the democratic states are much more respectful to human rights than undemocratic ones.
Law is also a field of knowledge. In other word, law is a science. Thus, one sub-field of law which has been developed in the study of legal rules is called ‘legal science or juriprudence.’ It is based on the study of the legal rules in force in a given country at a given time and also the study of the universal legal norms.
CHAPTER TWO
THE PURPOSES OF LAW
Legal rules are made for some purposes, as well as the other types of rules. In general, law aims to regulate the life of the society, to responds the necessities of the society and to realize the idea of justice. The basic purpose of law in a society is to regulate the social relations of the persons, so, that people will know what to do or not to do in various situations, conduct their activities and positions accordingly and thus increase the predictability of human behavior.
As suggested before, legal rules always presume the existence or emergence of an organized social force in a society that is the political power and the state. Historically the basic function of the state has been to maintain law and order through security forces, courts and administrators. The importance of law and its aims can be better understood by reflecting on how law can be used to help facilitate individual and social self-realization.
Consider the following incomplete list of uses societies commonly make of law;
- To help promote, health, including a healthful environment,
- To help reinforce the family and protect private life,
- To help keep order in the community,
- To help secure individual freedoms,
- The help enhance the reliability of exchange relations and to provide redress when they go wrong,
- To help recognize and order private ownership
- To limit political power,
- To realize justice,
When men use law in these ways, they foster and facilitate individual and social self-realization. Good family life, health and community peace obviously contribute to one’s capacity to realize himself/herself to the fullest – so, too freedom, equality of opportunity, the reliability of voluntary arrangement made in the exercise of freedom, and the right to have and to hold at least some of what one acquires.
In all these uses, law’s ultimate function is facultative, not restrictive. Of course, law is only one source of resources for maximizing the social conditions for individual and social self-realization. And love, ambition, natural capacities and material goods are more determinative than law. Moreover, law is itself an inherently limited set of resources. And law has to be administered by human beings always fallible. To be sure that, law is not omnipotent and don’t forget that law is not self-creating, not self-defining, not self applying, not self-executing, not self enforcing. Men and women, must do these things only with law.
Men/women are not infallible and therefore law is not infallible, even within its spheres of competence. For this and other reasons, provisions for surveillance and control of official action is required. Law is a double-edged instrumentality. It can be used for bad purposes as well as good.
Besides these, to realize justice is important for law. Thus, justice has always been one of the ideals of the humans. Formally, ‘justice is a way of thinking and acting which may be more or less synonymous with morality and honesty.‘ Thus Roman jurist Ulpianus was defined the justice as follow; ‘Justice is to live honestly, not to harm others and give everyone his due.’
John Rawls put it that ‘justice is the first virtue of social institutions, as truth is of systems of thought.’ Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. For this reason justice denies that the loss of freedom for some is made right by a greater good shared by others. It does not allow that the scarifies imposed on a few are outweighed by the larger sum of advantages enjoyed by many. Therefore in a just society the liberties of equal citizenship are taken as settled; the rights secured by justice are not subject to political bargaining of to the calculus of social interests. A society well-ordered when it is not only designed to advance the good of its members but when it is also effectively regulated by a public conception of justice. That is, it is a society in which (a) everyone accepts and knows that the others accept the same principles of justice, and (b) the basic social institutions generally satisfy and are generally known to satisfy these principles. In this case while men may put forth excessive demands on one another, they nevertheless acknowledge a common point of view from which their claims may be adjudicated. If men’s inclination to self-interest makes their vigilance against one another necessary, their public sense of justice makes their secure association together possible.
Among individuals with disparate aims and purposes a shared conception of justice establishes the bonds of civic friendship; the general desire for justice limits the pursuit of other ends. One may think of a public conception of justice as constituting the fundamental charter of a well-ordered human association.
CHAPTER THREE
THE HISTORY OF LAW
It was in approximately 1900 B.C. that the ‘Code of Hammurabi’ was set forth, for the ancient Sumerians who lived in civilization’s cradle along Tigris and Euphrates Rivers. That code contains the first known system of law. It describes various offenses and indicates the penalties for each. Some of them are the following;
- If a man has accused a man and has charged him with manslaughter and then has not proved it against him, his accuser shall be put to death.
- If a man kidnaps the infant (son) of a free (man), he shall be put to death.
- If a man has broken into a house, they shall put him to death and hang him before the breach which he has made.
- If a man committed robbery and is caught, that man shall be put to death.
The next famous codification of law was the ‘Ten Commandments’ given to the Jewish people by Moses around 1200 B.C. The Ten Commandments are the following;
- I am your God. You shall have no other gods besides me,
- You shall not make yourselves graven images,
- You shall not take the name of God in vain,
- Remember the Sabbath Day,
- Honor your father and your mother,
- You shall not kill,
- You shall not commit adultery,
- You shall not steal,
- You shall not bear false witness,
- You shall not covet to the wife and property of your neighbor,
We could find another important root in ancient Greece, which went far to develop the philosophy often expressed in the contemporary states today, that ‘A country should be ruled by law, not by men.’ The Greeks had well understood especially on law of property, contracts and commerce generally.
As the Greek culture gave way to the Roman, these basic but simple early roots merged gradually into a much more complete and carefully spelled out body of law. ‘The Twelve Tables’ published in Roma in 450 B.C. were a set of moral principles and practices for use by Romans alone. Thousands years later all laws were brought together and codified or put into a code which name was ‘Corpus Juris Civilis/Body of Civil Law’ under the Emperor Justinian I about 560 A.D.
The Corpus Juris Civilis was the most complete collection of laws up to that time and had enormous influence on the development of law in the countries that were part of or controlled by the Roman Empire.
Roman law comprehends all the laws which prevailed among the Romans, without regard their origin, including the collections of Justinian. In England and in America, it appears to be customary to use the phrase, indifferently with ‘the civil law’, to designate the whole system of Roman jurisprudence, including the Corpus Juris Civilis; or, if any distinction is drawn, the expression civil law denotes the system of jurisprudence obtaining in those countries of continental Europe which have derived their juridical notions and principles from Justinian collection, while Roman Law is reserved as the proper appellation of the body of law developed under the government of Rome from the earliest times to the fall of the Empire.
As the Roman Empire gradually fell apart much of Roman Law became Canon Law of the Catholic Church.
Today legal systems of many countries are based on the tradition of the Roman Law.
(1) Geoff Mulgan, CONNEXITY:Resposibility, Freedom, Business and Power in the New Century
(2) Geoff Mulgan, CONNEXITY:Resposibility, Freedom, Business and Power in the New Century
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(4) Lawyer-Arif Payaslıoglu, An Introduction To Law And The Turkish Legal System
(5) Edward Said, Covering Islam How the Media and the Experts Determine How We See the Rest of the World