introducton to law fall, 2014 dr. Özlem döğerlioğlu işıksungur source:prof. dr. rona aybay,...

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

INTRODUCTON TO LAW

Fall, 2014

Dr. Özlem Döğerlioğlu Işıksungur

Source:Prof. Dr. Rona Aybay, Introduction to Law, September 2013


Today’s Agenda

INTRODUCTION

• Society and OrderONE

• Rules Regulating SocietyTWO

• Legal OrderTHREE


WHY DO WE NEED 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

I- SOCIETY AND ORDER


WHAT İS THE 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

AIM OF THE “ORDER”


Order, ◦ 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

SOCIETY AND ORDER Continue…


WHAT IS “ORDER” AS A LEGAL CONCEPT?


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.

DEFINITION OF “ORDER”


Composed of◦ Legal Orders (Hukuk Kuralları)◦ Moral Rules (Ahlâk Kuralları)◦ Religious Rules (Din Kuralları)◦ Rules of Good Manners (görgü kuralları)

II-RULES REGULATING THE SOCIETY


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

LEGAL ORDER OR LAW


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.

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

LEGAL ORDER Continue


Moral Rules (Ahlâk kuralları) Religious Rules (Din Kuralları) Rules of Good Manners (görgü kuralları)

OTHER RULES REGULATING SOCİETY


MORAL LAW


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

MORAL 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)

A-RELATIONS BETWEEN MORAL AND LEGAL RULES


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.»

A-RELATIONS BETWEEN MORAL AND LEGAL RULES- Examples


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»



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 step-children◦ 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.”



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)



Important!◦ If the contract’s objective is to achieve an

immoral purpose it will be considered void under the law

A-RELATIONS BETWEEN MORAL AND LEGAL RULES-


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 involvedExample: to punish the infidelity (sadakatsizlik) of wife (adultery)- killing the wife

Moral obligation or crime?

B-PUBLIC and PRIVATE MORALITY


Law # justice Justice(Adalet):

◦ Fair/correct outcome of a legal dispute The purpose of every law must be uphold

justice

LAW AND JUSTICE


What are the Differences between Legal Rules and Moral Rules?

QUESTION?


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

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?

CASE STUDY


Page 38 of the book. Discussion Points--- Discussion from moral

and legal point

HOMEWORK


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


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)

RELIGIOUS ORDER


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


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 1921- the first constitution promulgated (yürürlüğe konmak-ilan edilmek)by the National Assembly–

20 April 1924- 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


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)


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


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


WHAT ARE THESE MAIN LAW 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.

DIFFERENT LEGAL SYSTEMS


Civil Law

Common Law

Islamic Law

Socialist Law

DIFFERENT LEGAL SYSTEMS


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)

CIVIL LAW


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

CIVIL LAW Continue…


WHICH COUNTRIES APPLY CIVIL LAW SYSTEM?

EXAMPLES?


◦ Continental Europe◦ Latin American Countries◦ Japon

CIVIL LAW SYSTEM COUNTRIES-EXAMPLES


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”

COMMON LAW


WHICH COUNTRIES APPLY COMMON LAW SYSTEM?

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

THE COMMON LAW SYSTEM COUNTRIES-EXAMPLES


Sources of Islamic law is ◦ “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”

ISLAMIC LAW


Applied in Cuba, North Korea

SOCIALIST LAW


WHAT ABOUT TURKEY? WHICH LEGAL SYSTEM IS

APPLIED IN TURKEY?


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

TURKISH LAW SYSTEM


DIFFERENCES – LEGAL RULES&OTHER

RULES OF CONDUCT???


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

Homework

introducton to law fall, 2014 dr. Özlem döğerlioğlu işıksungur source:prof. dr. rona aybay,...

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