Yrd. Doç.Dr. Mustafa CAN *
The order or pattern of rules that society uses to govern the conduct of individuals and their relationships is called law[1]. Law keeps society running smoothly and efficently. Law consists of the body of principles that govern conduct and that can be enforced in court or by administrative agencies. The law could also be described as a multitude of rights. A right is a legal capacity to require anothor person to perform or refrain from performing an act. Our rights flow from the Turkish Constitution, statutes and ordinances.
The foundation of the Turkish law of a current legal system may be found in Roman law or practices or moral laws applied in bygone ages. Until the 12th century, law in the western world operated on several primary levels. Collections of written laws such as the Augustinian Code or the Code of Charlemagne(both traceable to Roman law) created a broad written legal framework[2]. This basic system still prevails in many European countries and is known as the “civil” law[3].
Towards the end of the 1900’s, many European countries codified much of their law both public and private. On the other hand, in the Anglo Saxon countries the notion of uncodified law prevailed, and many rules are derived from customary laws and judicial precedents. Turkey has followed many European countries and codification of many European laws. Legislative branch has become the most important foundation of the Turkish law.
The foundations of the Turkish law may be written or unwritten rules. The written rules may be classified in to six categories. There is only one unwritten law ın Turkish system. It is called “customary law”. We will examine the foundations of the Turkish written law first. These are as follows;
The foundations of the Turkish written law is classified in seven categories[4]. These are constitution, statutory law, international treaty, statutory decrees, regulations, by-laws, court decisions and doctrine.
1. The Constitution
The term “constitution” refers to either the structure of the government and ıts relation to the people within ıts sphere of power or the written document setting forth that structure. A constitution is a body of principles that establishes the structure of government and the relationship of that government to people who are governed. Constitutional law is the branch of law that is based on the constitution for a particular level of government. The Turkish Constitution sets forth not only the structure and powers of government but also the limitations on those powers. Turkey has a prominent place among today’s developing countries by the length of its experience.
The Turkish Constitution establishes a tripartite government: a legislative branch to make the laws, an executive branch to execute the laws, and ajudicial branch to interpret the laws. The Turkish Constitution provides that the Turkish Parliament[5] has sole authority to enact laws for application throughout Turkey. The 7th Article of the Turkish Constitution provides that “legislative power is vested in the Turkish Parliament. Members of the Turkish Parliament are popularly elected by the Turkish citizens for a term of five years.
According to the Turkish Constitution, the basic characteristics of the Turkish Republic have been described as “a democratic, secular, and social state governed by the rule of law, in accordance with the concepts of social peace, national solidarity, and justice; respectful of human rights...”
The supremacy of the constitution is expressed clearly in the 11 the Article of the Turkish Constitution which states that “laws shall not be in conflict with the constitution.
2. The Statutory Law
The expression “law” is ordinarily used to indicate a statute enacted by the Turkish Parliament[6]. The statutory law includes this legislative acts declaring, commanding, or prohibiting conduct. Statutes are applied in all parts of Turkey and all Turkish citizens, and aligns are subject to them. An act of the Turkish Parliament to provide leave for officers medical needs is an example of a statutory law.
Statutes are applied until they are abrogated or changed by a new statute. The Turkish Paliament permits both making new laws and abrogating old ones and is an essential instrument for the regulation of modern social life. The Turkish Parliament has become the most important foundation of law.
Bills may be introduced either by the Council of Ministers or by members of the Turkish Parliament. The statute passed by the Turkish Parliament are promulgated by the President of the Republic within fifteen days. The President may, within the same period, refer the law back to the parliament for reconsideration. If the parliament again passes the statute in its original version(without new amendments), the President has to promulgate it.
3. International Treaty
The foundation of the Turkish law also includes treaties made by the Turkish Republican. International Treaties to which Turkey is a party are approved by the Turkish Parliament by enactment of a law. Technically, therefore, international treaties are statutes become enforceable after their publication in the Offical Gazette. Some international treaties become binding without the official approval of the Turkish Parliament such as economic, commercial and technical treaties(The Constitution 90.m)
4. The Statutory Decrees
The Turkish Parliament may authorize the Council of Minister by special statute, to issue statutory decrees on certain topics[7]. In these special statutes the scope, principles, and duration of the power to issue statutory decrees are clearly stated. Statutory decrees become enforceable on the day of their publication in the Offical Gazette, and they are submitted for the review and approval of the Turkish Parliament on the day of their publication. Statutory Decrees cannot subject to the fundamental liberties and political rights of individuals.
5. Regulations
The Council of Ministers has the power to make regulations that regulate for enforcement of statutes[8]. According to the Turkish Contitution, such regulations must have been examined by the Council of State, signed by the President of Republican and promulgated in the same manner as statutes. Regulations cannot contain provisions contrary to statutes. In the hierarchy of laws, therefore regulations come after statutes and contain more concrete rules than statutes.
6. By- Laws
Late in the last century, a new type of governmental structure began to develop to meet the highly specialized needs of government regulation of life. An administrative agency is a government body charged with administering and implementing legislation. An administrative agency may be prime ministry, the ministries, and public corporate bodies such as universities and municipalities. These administrative agencies have the power to make “by laws”[9], in conformity with statutes and regulations in order to regulate a particular segment of life or business.
By laws adopted by these agencies may be intended to interpret or clarify the statute and regulation.
7. Court Decisions
Courts have been created to hear and resolve legal disputes. A court’s specfic power is defined by its jurisdiction. Courts of original jurisdiction are trial court, and courts that review the decisions of trial courts are appellate courts. Turkish courts are bound to make their decisions in conformity with the statutory law, the function of the judiciary being to interpret and apply the law.
In Turkey certain precedents are follower. Thus lower trial courts are bound by some decisions of the Supreme Court and the Supreme Court in turn is bound by some of ıts own decisions.
8. Doctrine
Doctrine is a subsidiary foundations of Turkish law. The research of the legal authority, or jurist, is to discover by logical analysis the several possible interpretations of laws and to indicate their practical consequences. The studies of juristic are not an independent “source of law”, although in some cases juristic opinion leads to the formation of law.
B. Unwritten Laws: Customary
Law
As unwritten law, we will examine customary law. Customary law may give us some insights into the development of law. Written laws have mainly developed from customary law. Customary law constituted and observed course of conduct of the society.
For a customary law to have legal validity in the Turkish system. It must be (1) antiquity, (2) countinuity, (3) popular belief in rightness of a custom law, (4) state sanction, (5) agreement with statutory law. In the first Article of the Turkish Civil Code states that “... there is no applicable provisions, the judge should decide according to existing customary law....”.
Turkish law consists of the pattern of rules established by society to govern conducy and relationships. These rules can be expressed as constitutional provisions, statutes, administrative regulations, and case decisions. Law can be classified as substantive or procedural, and it can be described in terms of its historical origins, by the subject to which it relates, or in terms of law or equity.
The foundations of the Turkish law include constitutions, statutes, administrative regulations, bylaws, court decisions, doktrine, and customary law.
* Gazi Üniversity Economics & Administrative Faculty, Çorum/TURKEY
[1] . OVACIK, M., English & Turkish Law Dictionary, 1986, s.196.
[2] . ELİAS, Stephan/LEVİNKİND, Susan., Legal Research, How to Find & Understand The Law, 1999 US, s.3.
[3] . A legal tradition called the “common law”, quite different from that of the civil law, developed in England after the Norman conquest in 1066.
[4] . GÜRİZ, A., Introduction to Turkish Law, “ Sources of Turkish Law”, 1987, s. 6 vd.
[5] . Turkish Parliament is called “the Turkish Grand National Assembly”
[6] . GÜRİZ 7.
[7] . GÜRİZ 8.
[8] . OVACIK 272.
[9] . OVACIK 51.