BASIC PRINCIPLES OF LAW

Course: Basic Principles of Law

Coursebook: Kemal Gözler, İngilizce Karşılıklarıyla Hukukun Temel Kavramları, 12. Baskı, Adalet
Yayınevi, Ankara, 2023.
Supplementary Resources:
Aydın, U., Sütken, E. (Editörler) (2012). Hukukun Temel Kavramları. Anadolu Üniversitesi AçıköğreEm Fakültesi
Yayınları. Eskişehir.
AYBAY, Aydın, AYBAY, Rona, PEHLİVAN, Ali, Hukuka Giriş, Bilgi Üniversitesi Yayınları, İstanbul, 2016. AYBAY,
Rona,
İnsan Hakları Hukuku, Bilgi Üniversitesi Yayını, 1. Baskı, İstanbul, 2015.
GÖZLER, Kemal, Genel Hukuk Bilgisi, Ekin Yayınevi, Bursa, 2018
GÖZLER, Kemal, Genel Hukuk Bilgisi, 12. Baskı, Adalet Yayınevi, Ankara, 2023.
SÜMER, Haluk Hâdi, Hukuka Giriş: Kavramlar ve Kurumlar, Seçkin Yayıncılık, Ankara, 2018.

Week Subject
one 1. SOCIAL ORDER, CONDUCT AND RULES OF LAW
2 2. SANCTIONS IN LAW
3 3. SOURCES OF LAW
4 4. APPLICATION OF LEGAL RULES IN TERMS OF PLACE, TIME AND MEANING
5 5. THE CONCEPT OF PERSON IN LAW, TYPES OF PERSONS, QUALIFICATIONS OF PERSONS
6 6. THE CONCEPT OF RIGHTS AND TYPES OF RIGHTS
7 7. LEGAL EVENT, LEGAL ACT, LEGAL PROCEEDING, GAIN AND LOSS OF RIGHTS
8 8. TYPES OF CASES AND PROTECTION OF RIGHTS
9 9. BRANCHES OF PUBLIC LAW (1)
10 10. BRANCHES OF PUBLIC LAW (2)
11 11.BRANCHES OF PRIVATE LAW (1)
12 12. BRANCHES OF PRIVATE LAW (2)
13 13. JUDICIAL ORGANIZATION (1)
14 14. JUDICIAL ORGANIZATION (2)
15
 1. SOCIAL ORDER, CONDUCT AND RULES OF LAW

This Sec)on What Does it cover ?

■ Social Order Rules
■ Types of Social Order Rules
■ Comparison of Social Order Rules
■ Different Meanings of Law
■ Purposes of Law
■ Elements of Legal Rules
■ Legal Systems
■ Civil Law (also known as Black/Roman-Germanic ) European Continental Legal
System
■ Anglo-Saxon (Common Law) Legal system
■ Islamic Legal system
■ Socialist Legal system
■ Different Views on the Source of Law (Positive vs. Natural Law)
■ Views Accepting that Law Arises from Will
■ Law Arises from will or non-will Sources
■ Characteristics of Legal Rules
Chapter Questions
1. What are the rules of social order?
2. Is there a need for rules that regulate human and societal life?
3. What are the differences between rules of social order?
4. What are the meanings of the concepts of law, legal rule, legal order, and
legal systems?
5. Where does law originate from?
6. Why do opinions about the source of law differ?
In this section

"Targeted Achievements and Achievement Methods"

1. Topic: The Concept of Social Order Rules and Types of Social Order
2. Achieving an understanding of social order rules
3. Through reading and watching videos
4. Legal rules: DisLnguishing legal rules from other social order rules and
learning the different meanings of law
5. Through reading and watching videos

Key Concepts
■ Social order rules
■ Religious rules
■ Ethical rules
■ Rules of EGqueRe (do’s and don’ts)
■ Customary rules
■ Rules of law

Society: The enLrety of individuals living together on the same land,

collaboraLng to secure their fundamental interests; community.

Morality: The behavior paNerns and rules adopted by individuals within a

society that they are obligated to follow.

Customs and Tradi5ons: Repeatedly pracLced behaviors and rules that have
become established among people.
Introduction

People, by their very nature, are required to live collecLvely. In other words,
as many philosophers, starting with Aristotle, have articulated, humans are
social beings. To live together, there is a need for certain rules and the order
that arises from these rules. These rules, known as social order rules, such as
religion, ethics, customs and traditions, etiquette, and legal rules, are the rules
that individuals living within a society are obliged to adhere to. Failure to
comply with these rules can result in various consequences.

Social Order Rules

Various rules are in place to ensure order and safety in society. All of these
rules, which specify the duties that individuals living in a community must
fulfill and the authorities they may exercise, are referred to as "social order
rules." These rules represent the commands and prohibitions that individuals
are obligated to follow (Kalabalık 2018: 32).
Types of Social Order Rules
It is possible to categorize the social rules that regulate societal life and, initially
considered of the same nature but have diverged over a long evoluLon and
effort, under a few headings today. These include legal, religious, ethical, and
eLqueNe rules. These rules are characterized by being general, constant, and
having sancLons or commands (Bilge 2007: 6).

Religious Rules

Religious rules are commands and prohibiLons set by God and conveyed to
prophets/humans through sacred scriptures. Religious rules primarily regulate
the (spiritual) relaLonship between God and His servants. AddiLonally, some
religious rules also govern interpersonal relaLonships among people alongside
their spiritual obligaLons. In all religions, there are commandments to promote
good relaLonships among individuals, to refrain from causing harm to others, to
provide assistance to those in need, particularly to close relatives. The
enforcement of religious rules is spiritual. Those who do not comply with
religious rules are considered sinners and face consequences in the acerlife.
Therefore, individuals who violate religious rules do not face immediate
consequences in their lifeLme but rather acer their death. Because of the
spiritual nature of the consequences, it is not possible for religious rules to
effecLvely regulate social relaLonships (Kalabalık 2018: 33).

Ethical Rules
Ethical rules are formed from senLments such as benevolence, assistance, and
goodness, rooted in human and societal conscience, which outline the duLes of
individuals towards themselves and others. Ethical rules can be categorized into
subjecLve (personal) and objecLve (universal) ethical rules. SubjecLve ethics
involves an individual's behavior based on their personal sense of goodness and
benevolence, meaning the acLons they feel personally obligated to perform or
avoid solely concerning themselves.
Objective ethics, on the other hand, pertains to an individual's behavior based
on the shared conscience of society, involving rules of goodness and
benevolence that are widely accepted. According to these definiLons, acLons
like not lying, being honest, restraining one's desires while considering the
welfare of society are considered subjecLve ethics. Rules such as not causing
harm to others, keeping promises (faithfulness), and performing acts of
kindness, especially to close relaLves, fall under objecLve ethics.

When ethical rules are violated, the reacLon manifests itself in the individual's
personal conscience or the collecLve conscience of society. These reactions can
take the form of remorse felt by the individual or societal censure and
condemnaLon. Ethical rules serve as a standard for judging which behaviors in a
society are considered good or bad. Therefore, people are ocen labeled as moral
or immoral based on their behavior in certain maNers, taking these rules into
account (Pulaşlı 2017: 7).

In all societies, over time, some ethical rules are observed to evolve into
legal rules. In such cases, those who do not comply with these rules will face
legal sancLons (Kayıhan 2008: 37). In fact, some of the existing legal rules
(positive legal rules) have their origins in ethical rules. For example, the
prohibition of acLng in bad faith and abusing a right, as stated in the Turkish Civil
Code, is based on ethical rules (Article 2). In other cases, legal rules directly
refer to ethical rules. For instance, according to the Turkish Code of
ObligaLons, acts that are contrary to ethics are invalid (Article 27/1).

The characteris5cs of ethical rules can be summarized as follows (Esener

2015: 27):

• They concern human behaviors.

• They are protected by an individual's own conscience.
• The enforcement is the individual's own conscience.
• Their purpose is to distinguish good behavior from bad behavior and to
promote the practice of good behavior.
• An ethical rule that has not been transformed into a legal rule does not have
a material sanction.
Etiquette Rules

Etiquette rules are a set of rules that regulate the behavior of individuals in a
parLcular society. They determine how a person should behave in a specific
place, time, and situation. They guide people on the manners they should adopt
when interacLng with each other. Etiquette rules dictate how people should
speak, sit, observe dining etiquette, and behave at events like funerals and
holidays. The enforcement of etiquette rules is primarily spiritual. Those who do
not adhere to these rules are ocen labeled as rude, impolite, ignorant, or
disrespeciul by society (Kalabalık 2018: 35-36).

Legal Rules

It is observed that the social order rules menLoned above are insufficient in
regulaLng societal relaLonships. This is because of the issue related to their
enforcement. While the enforcement of other social order rules is spiritual,
individuals cannot be compelled to adhere to these rules through the power of
the state. Hence, there is a need for social order rules that regulate societal
relaLonships and have material enforcement. These social order rules with
material enforcement are referred to as legal rules (Akıntürk 2015: 11).

As evident from this, the most significant rules that individuals living in society
must adhere to are legal rules. These rules directly govern individuals' external
relaLonships. For instance, the delivery of a purchased item to the buyer and the
payment of the purchase price by the buyer; the punishment of a thief, a
murderer, or a robber; the imposiLon of disciplinary measures on a student who
cheats. The purpose of legal rules with material sancLons, like other social order
rules, is to regulate the relaLonships of society and individuals living in society,
ensuring their peace and harmony. In short, the purpose of legal rules is to
maintain societal life. In this regard, legal rules do not differ from other social
order rules that regulate societal life, such as religious, ethical, and eLqueNe
rules. As a result, there is a constant relationship, mutual influence, and even
overlap between legal rules and other behavioral rules.
According to the informa0on provided, law can be defined as follows: "Law is a
set of material rules that regulate relationships in society, whether between
individuals or between individuals and society, with obligatory compliance."
(Akıntürk 2015: 11).

In another similar definition, "Law is a collective of societal rules that regulate

individuals' relationships with each other and with society in the course of
community life, supported by the power of the state." (Bilge 2007: 13).

These definitions highlight the role of law in regulating various aspects of societal
life and interactions, including relationships between individuals and
relationships between individuals and the broader community. They also
acknowledge the significance of the state's authority in upholding and enforcing
these rules. Additionally, the evolving nature of legal rules, as they can
incorporate elements of ethics and religion or vice versa, underscores the
dynamic and interconnected nature of these various rule systems in society.
The Elements of Law

Event
In order for a legal rule to be applicable, there is a requirement for the existence
of an event or acLon that arises from the actions of individuals or the influence
of natural forces. However, it is important to remember that these events must
have a legal consequence aNached to them by the legal system. Events to which
a legal consequence is aNached are referred to as legal events.
Regulation

The duty of law is to regulate the relaLonships among individuals living in

society. In regulaLon, there is a quesLon of giving a posiLve or negaLve
command to behavior that consLtutes a legal event. For example, in the Turkish
Code of ObligaLons, it is stated, "Recognition of a debt is valid even if it does not
contain the reason for the debt" (TCO, ArLcle 18). This regulaLon expresses a
posiLve command. In the Check Code, it is menLoned, "A natural person who
owns the check account cannot appoint someone else as a representaLve or
agent to draw checks in their name" (ArLcle 5/3). This regulation, on the other
hand, conveys a negative command.

Obligation
Another element of legal rules is to indicate that the person who consLtutes the
legal event or carries out the legal transacLon is obliged to perform the
obligaLon arising from it. A person who causes harm to others through a
negligent and unlawful acLon is obligated to compensate for this harm (TCO,
Article 49).

Sanction
As menLoned earlier, the most significant distinguishing feature of legal rules
from other social norms is that they are backed by the state. In the case of
behaving contrary to a legal rule or avoiding compliance with it, the legal
consequences prescribed by the legal rule apply to the person who behaves
contrary to or avoids it.
Comparison of Social Order Rules
The rules that regulate social life have been intertwined. With the advancement
of civilization, technological developments, progress in the realm of thought,
and the emergence of a secular understanding, social order rules began to
differenLate from each other. By considering different criteria, a comparison of
social order rules can be made as follows (Can/Güner 1999: 12-14):

Sanction/Penalty Discrepancy

All societal rules come with sancLons, so when these rules are violated, the
violator faces a response. The size, form, and intensity of this response indicate
differences between the rules. When legal rules are not adhered to, the
response comes from the state. When non-legal societal rules are not followed,
there is also a response, but this response has a spiritual nature because it comes
from the society, not the state. SancLons for legal rules supported by the state
can take the form of imprisonment, compensaLon, restoration to the previous
state, or deprivaLon of rights. On the other hand, sancLons for other societal
rules manifest as labels like immoral, rude, or uncouth. These sancLons are not
state-supported sancLons. For example, a person who has been wronged can
appeal to the state for the wrongdoer (if the wrongful act also consLtutes a
crime) to be punished and for the compensaLon of the harm suffered. However,
the state does not impose sancLons on those who do not fast as commanded by
the Islamic faith or those who do not greet others, as these are not state-
supported societal rules. Those who do not follow religious rules face sancLons
from God, while sancLons for moral and etiquette rules are applied by society.

Formal Difference

There is a formal difference between legal rules and other societal rules. Legal
rules are set forth in a wriNen form, such as the constitution, laws, presidential
decrees, regulations, directives, and official announcements. In contrast, other
rules do not have a written source. This perspecLve may not be very realistic
when considering the existence of unwritten customary law. Moreover, in
countries like the United Kingdom, where some laws consist of unwritten rules,
and when you consider that some religious rules are found in sacred scriptures,
this disLncLon becomes a subject of debate.

Source Difference

One of the differences advanced among societal rules is the source difference. It
is argued that religious rules originate from divine will, while legal rules stem
from the common values of society. However, this asserLon is not always
universally accepted. Just as there are views that base legal rules on divine will,
similar arguments can be made for ethical and moral rules being a result of
societal will. When considering these two aspects, the distinction in the source
of rules becomes a matter of debate.
Acer the explanations provided above, the importance of rules that establish
and maintain social order becomes evident. These explanaLons do not lead to
the conclusion that non-legal societal rules are non-functional and therefore
useless. Non-legal rules of order contribute to the conLnuity and healthy
funcLoning of legal rules (Pulaşlı/Korkut 2017: 9).
When making a general assessment of the differentiation of societal order rules,
it becomes clear that criteria other than the difference in sanctions are not
always universally acceptable. In other words, it is understood that the most
valid criterion is the state's endorsement of the sancLons of legal rules, which is
not present in the case of other rules.

Common Aspects of Social Order Rules (Gözler 2016: 24-25):

• Normativity: Command, law, or permission: All social order rules either

command, prohibit, or allow certain actions.
• Social order rules concern human behavior.
• Except for religion, social order rules originate from human will. In other
words, humans are their enactors (legislators).
• Social order rules are associated with sanctions. In general terms, a sanction
is a negative response directed at the individual who violates the
applicable rule. A social order rule without a sanction cannot be discussed.
Different Meanings of Law

Positive Law
The law that is currently in effect is called positive law. The positive law consists
of statutory law (legislation) and customary law, and it can be formulated as
follows:
Positive law = legislation + customary law.

Statutory Law (Mevzu Hukuk)

Statutory law refers to written legal rules established (enacted) by authorized
public authoriLes, primarily the legislative body. Statutory law includes the
constitution, international treaties, laws, statutory presidential
decrees, presidential decrees, regulations, bylaws, and other written legal
rules. All of these collectively are referred to as legislation. The term statutory
law does not encompass written legal rules that have been repeated, nor
does it include unwritten customary law, which is part of positive law but not in
written form.

Natural (Positive) Law (Doğal/Tabii Hukuk)

It refers to the law that should be, an ideal concept of law. In other words, it is a
concept used to express universal law that is presumed to be the most suitable
for societal needs, human nature, the nature of things, justice, and equity, not
the law applied in a specific place and t ime. According to the Roman thinker
Cicero, natural law cannot be abolished. Neither the legislative body nor society
can eliminate natural law. You don't need to be a legal scholar to understand or
interpret it. Natural law is the same in Rome, Athens, Istanbul, Cairo, or
anywhere else. Furthermore, it remains unchanged over Lme; it always stays the
same (Şenel 1995: 197).
In today's context, the function of natural law, primarily towards legislative
bodies, is to provide guidance to the public authoriLes responsible for making
legal rules.

The difference between posiLve law and natural law can be expressed as
follows: Positive law represents the existing law (the law in force), while natural
law represents the law that should be (the ideal law).
Objective Law - Subjective Law
In Western languages, the term "law" is used to refer to a kind of authority that
can be defined as any interest that is both legally recognized and gives the right
to benefit from it. Therefore, in these countries, different adjecLves are added
before these words to distinguish between the concepts of law and rights;
"subjective law" is used to express the concept of rights, while the term "law" is
used to represent the concept of law. In Turkish, the need to add the adjecLves
"objective" (objective) and "subjective" (subjective) before these words is
not necessary because the words "law" and "rights" are used in different
meanings (Kayıhan 2008: 43; Bilge 2007: 27).

Equity Law (Hakkaniyet Hukuku)

Equity law is a legal system that aims to correct outcomes that are contrary to
justice and arise as a result of the applicaLon of formal aspects of positive law.
It has an exceptional character and plays a significant role, especially in the
discretion granted to judges. (Bilgili/Demirkapı 2017: 15).

Material (Substantive) Law - Procedural Law

Material law refers to legal rules that regulate the essence of social relationships,
recognizing individuals' rights and specifying their obligations. In this sense, the
Turkish Commercial Code, the Turkish Penal Code, the Labor Law, the
Turkish Civil Code, and the Turkish Code of ObligaLons serve as examples of
material law. The legal methods and procedures for obtaining rights and
fulfilling obligaLons are covered by procedural law. To illustrate, the rules that
determine which type of court a particular case should be filed in, in which
locaLon, fall under procedural law. The time limit for filing a lawsuit,
the rights and obligaLons of the plainLff and defendant within a case also fall
within the scope of procedural law. The Administrative Procedure Law, the
Criminal Procedure Law, and the Law of Civil Procedure serve as examples
of procedural law (Kalabalık 2018: 61-62).
Legal Science
Legal science is a discipline that involves the systematic examination and
explanation of posiLve legal rules through scienLfic methods. Classical legal
science strives to classify and systematize the content of all rules in customary
and legislaLve law in force at a specific Lme and place in a logically coherent
manner (Kalabalık 2018: 62).

Legal science encompasses the examinaLon of the following disciplines: legal

dogmaLcs, legal history, legal poliLcs, legal philosophy, legal sociology, forensic
medicine, and forensic psychology (Bilge 2007: 28-29).

Legal Dogmatics (Dogmatic Law)

Legal dogmatics, also known as posiLve legal science or legal dogmatics, is the
branch of legal science that systemaLcally examines legal rules in force at a
specific time and place. When dealing with legal dogmatics, it's important to
note that existing legal rules are to be explained according to the text without
criticism. This approach historically emerged, especially in Europe during the
period when religious law prevailed, as it was believed that divine law was the
product of divine will and therefore should not be subject to criLcism. Today, in
the examinaLon of legal norms based on secular foundations, the degree of
correctness of positive legal norms is not determined through experimentation.
Therefore, in contemporary legal studies, not only are dogmas followed, but
critical analysis is also conducted.

Legal History
Legal history is the discipline that explains the stages through which legal rules
have evolved over time by examining legal rules from a historical perspective.
This discipline also provides the opportunity to compare the historical
foundaLons and different stages of legal rules and institutions. Such
comparisons can be very useful as they can shed light on future regulaLons.
Additionally, it allows for the examination of institutions related to the
same subject in other countries in terms of their historical development and
context.

Legal Politics
The subject and funcLon of legal politics involve examining positive legal rules in
terms of societal needs and legal systematics to identify gaps and propose new
recommendations to address deficiencies. Legal politics aim to provide solutions
and improvements to the existing legal framework based on the analysis of legal
rules in light of societal requirements and the organization of the legal system.
Forensic Medicine (Adli Tıp)

Forensic medicine is a branch of medicine that deals with applying medical

knowledge, especially to issues within the domain of criminal law.

Forensic Psychology (Adli Psikoloji)

Forensic psychology is a discipline that allows for the uLlizaLon of psychological
knowledge in the field of law and the legal profession. It involves the applicaLon
of psychological principles and research to legal issues and situaLons.

Legal Philosophy

Legal philosophy is a discipline that examines topics such as the source of law,
the concept of law, and what constitutes a just law. It takes a holistic approach
to law, considering it from a comprehensive perspecLve.

Legal philosophy seeks to reach a universal concept of law and jusLce.

Additionally, this discipline also delves into the reasons behind the
imperaLveness of legal rules.

Sociology of Law

Sociology of law focuses on the social events that give rise to the abstract legal
rules. Legal rules are closely interconnected with the structure of society, as they
are designed to regulate social conduct. Sociology of law attempts to establish a
causal relaLonship between legal rules and social events. In other words, it
examines the impact of legal rules on society and invesLgates the social events
that lead to the creaLon of legal rules.

Within this scope, the sociology of law researches social-legal events like
marriage, divorce, dowry, suicide, considering cause-and-effect relaLonships.
For example, while positive law examines crime and punishment from a
dogmatic perspective, the sociology of law investigates the societal factors that
lead to crimes and the social consequences and effects of imposed punishments
The Objectives of Law
In general, it can be said that the objec5ves of law are to regulate social life,
meet societal needs, and realize the concept of justice.

Regulating Social Life

Human beings need to live collecLvely to protect and improve their existence.
However, collecLve living requires a certain order to prevent the strong from
oppressing the weak and to prevent chaos. Therefore, the law ensures peace,
security, and equality in society by preventing the dominance of absolute power.
As a result, the law provides a conLnuous and secure environment of freedom
for the members of society. In short, the purpose of legal rules is to regulate
collective living and social relationships.

Meeting Societal Needs

Law must meet the needs of society to exist and adapt to changing condiLons.
A system that does not conform to these needs and conditions cannot endure.
The purpose of meeting the requirements of societal life constitutes the material
aspect of the law.

Achieving Justice
It is not sufficient for the law to regulate societal needs only in a formal manner.
AddiLonally, the law must be in line with the principles and sentiments of justice.
This is because justice constitutes the spiritual or intellectual dimension of the
law.
Elements of Legal Rules
In a legal rule, there are three fundamental elements: subject ma?er, will-
command, and sanc5on.

Subject Matter
The subject matter is the person-to-person relaLonships regulated by the legal
rule and the acLons and deeds pertaining to these relationships. This aspect
becomes apparent concerning the element of sancLon. The fact that a sanction
will be applied to a person who does not comply with the legal rule also requires
that the subject maNer be a human behavior. While the subject matter of law
generally consists of human actions and expressions of will, it is observed that in
excepLonal cases, certain natural events can also form the subject maNer of
legal rules. The most well-known example of this is death. Law has aNached
significant legal consequences to death, which is a natural event, as will be seen
later.

Will-Command
The element of will-command in a legal rule consLtutes what the legal rule
orders or prohibits to be done. A rule without the will-command element cannot
be considered a legal rule. The will-command element of the legal rule is also
referred to as the normaLvity of law.

Sanction
SancLons are the various forms of responses that arise in cases of non-
compliance with a command and are supported by the state. These responses
can take the form of imprisonment, fines, (material or moral) compensaLon,
voidance, cancellation, and many other forms.
Legal Systems
There are generally four main legal systems recognized in the world. These are
the ConLnental/European legal system (Roman-German), the Anglo-Saxon legal
system (Common Law), the Islamic legal system, and the socialist legal system.

Continental (European/Roman-German) Legal System

This system, typically applied in conLnental European countries, is based on

Roman law. In this system, the disLncLon between private law and public law in
Roman law is fundamental. Since wriNen law is the primary source, case law
serves as a supplementary source. Acer the proclamaLon of the Republic,
Turkey also adopted this legal system (Bilge 2007: 70). Since the United Kingdom
is outside this system, it is also referred to as the ConLnental European or
European legal system. This system has had a more significant influence and
acceptance in many countries compared to other legal systems. For example,
Turkey, Japan, South American countries, and South Africa have embraced this
legal system (Aybay et al. 2016: 79).

The Characteristcs of the Con5nental European Legal System can be

summarized as follows (Gözler 2016: 135-136):

a) Codification: This legal system is codified, meaning that it has been created
by puwng into wriLng the unwriNen legal rules.

b) Written Sources: In this legal system, the formal sources of law, such as the
consLtuLon, statutes, regulations, and bylaws, are all in wriNen form. As a
result, customary law and usage are considered supplementary sources of law.

c) Precedent: In contrast to the Anglo-Saxon legal system, precedent has a

subsidiary role in this legal system and does not serve as the primary source of
law.
d) Distinction Between Private Law and Public Law: In the ConLnental
European legal system, which derives from Roman law, there is a clear
distinction between private law and public law. In public law, the state is the
superior party, while private law governs the relationships between two or
more private individuals. These individuals are generally considered equal, and
the state typically does not interfere in these relaLonships.

e) Separation of Powers: Countries that apply the ConLnental European legal

system have a system of separaLon of powers, consisting of judicial and
administrative branches. Administrative courts handle administrative disputes,
while judicial courts handle legal disputes.

Anglo-Saxon (Common Law) Legal System

While Roman law began to be accepted as the common law in conLnental
Europe from the 12th century onwards, the development of the legal system in
England took a different path. Although the English adopted certain concepts
from Roman law, they did not base their legal system on Roman law. As a result,
a disLnct legal system known as common law emerged.

Characteris5cs:

• Common Law: Common law, which emerged in England as a result of the

iLnerant judges sent by the Normans acer their invasion in 1066, selecLng
the most suitable customs and usages from different regions of the country
to administer jusLce, is known as common law. Common law completed
its formaLon and development in the 12th century and has been applied
since then. It is a rigid and formal legal system.

(Please note that common law is characterized by its reliance on judicial

precedents and case law, as well as its focus on the decisions of past courts to
guide current and future legal interpretaLons and judgments. It is distinguished
from civil law systems, like the Continental European system, which are primarily
based on wriNen legal codes and statutes.)
Equity Law: As menLoned earlier, common law is a strict and formal legal
system. Equity law, on the other hand, has evolved to socen and modify the
rigid provisions of common law based on principles of fairness and jusLce. This
legal system is known as equity law and became more defined in 1474.

Statute Law: StarLng in the 19th century, as economic and social problems
emerged that couldn't be adequately addressed through common law and
equity law, legislatures began to enact statutes to establish rules. These legal
rules enacted by the legislaLve body are referred to as statute law. It's worth
noLng that in our legal system, what is called "statute law" by the English is
referred to as "yasa" in Turkish, which is the term for laws passed by the
legislaLve branch.

The characteristics of the Anglo-Saxon (Common Law) legal system can be

summarized as follows:

a) Not Codified: Common law is not codified, meaning it is not based on

wriNen legal codes.

b) Custom and Usage as Sources: Custom and usage are primary sources of law
in this system.

c) Precedent-Based (Judicial): It is of a precedential nature and has been

developed by judges through case law.

d) Absence of Public Law-Private Law Dis5nc5on: Unlike the ConLnental

European legal system, common law does not make a clear distinction between
public law and private law.

e) Principle of Judicial Uniformity: The principle of judicial uniformity is valid in

common law. As a result, there is no distinction between judicial and
administrative courts; both handle legal disputes.
Islamic Legal System
Islamic law, also known as Sharia, is a system of law that is specific to the beliefs
and pracLces of the Islamic faith, as directed by Allah to His servants to act
according to the requirements of the faith, to be honest, and to follow the
orders, prohibiLons, and teachings related to acLons, beliefs, and ethics. This
system is ocen referred to as "xkıh" among Islamic jurists. Islamic law
encompasses rules that pertain to individuals, society, and the state, examining
and regulaLng various aspects of life. Some of the rules it addresses concern the
relaLonship between God and His servants, while others govern the interacLons
between individuals. As a result, Islamic law can be primarily divided into two
categories: "ibadat" (worship) and "muamalat" (transacLons and legal dealings).
"Muamalat" includes rules related to property, contracts, family law (marriage
and divorce), inheritance, and criminal law. The influence of Islamic law on legal
systems in countries where Islam is prevalent varies depending on the
proporLon of the populaLon that follows the faith. The primary sources of
Islamic law are the Quran, the Sunnah (tradiLons of the Prophet Muhammad),
consensus (ijma), and analogical reasoning (qiyas). This legal system has evolved
according to a casuisLc approach, with a reliance on specific fatwas (legal
opinions) rather than general and abstract rules.

It is useful to briefly look at the sources of Islamic law (Kalabalık 2018: 158-159;
Sümer 2018: 19-20).

The Quran: is the sacred book of Islam. In addiLon to regulaLng the relaLonship
between the Creator and His servants, it also regulates the relaLonships
between individuals. These are legal rules, primarily related to private law. In
this context, it is observed that the Quran contains regulaLons, for example,
related to inheritance law and family law.
The term "Sünnet" comes from Arabic and means "way" or "path." When used
in a more specific context, it refers to the sayings (kavl), acLons, or approvals of
Prophet Muhammad, the founder of the Islamic religion. Sünnet can be
categorized into three types:
• "Kavli Sünnet": This refers to the rules set by Prophet Muhammad through his
sayings.
• "Fiili Sünnet": This involves the rules established by Prophet Muhammad
through his acLons or deeds.
• "Takriri Sünnet": This category includes the rules established when Prophet
Muhammad did not interfere when he witnessed someone performing an
acLon or when he remained silent acer learning about a parLcular maNer.

Sünnet is the second source of Islamic law acer the Quran. It primarily relies on
the Quran and serves to explain and provide further insights into its teachings.

Icma : refers to the unanimous agreement of Islamic legal scholars living in a

specific period on a parLcular issue. It is a form of jurisprudenLal consensus.
However, due to the fact that all Islamic scholars reach the same conclusion
through their individual reasoning, likening "Icma" to the decision to unify their
independent reasoning (ijLhad-içLhat) may be appropriate. Consequently, it is
binding on all Islamic jurists.
Kıyas: is the process of applying a rule derived from the Quran, Sunnah, or
consensus (icma) to a new and similar issue for which there is no specific ruling
by drawing an analogy or making a comparison.

In today's world, it can be observed that Islamic law is applied in several

countries such as Syria, Iran, Egypt, Tunisia, Pakistan, and Yemen. However, it
cannot be said that Islamic law is applied in an absolute manner in these
countries. In countries where Islamic law has influence, it is also evident that
societal norms and customs affect legal regulaLons.

During the ONoman Empire, Islamic law had a significant influence, but
customary law also held a crucial place. It is observed that the Quran and the
Sunnah (hadith) played a more prominent role in private legal relaLons than in
public law relaLons. The gaps in public law, such as administraLve and tax law,
were filled more through sources like custom, tradiLon, and maslahat (public
interest). These are referred to as the auxiliary sources of Islamic law (Anayurt
2005: 59; Gözübüyük 2016: 16).
However, with the (Tanzimat) reforms, the influence of Western law also
became evident. This influence became even more pronounced during the
Republican period. It is beneficial to examine these periods. During the ONoman
era, there was a lack of harmony in legal rules between the proclamaLon of
reforms (Tanzimat) in 1839 and the proclamaLon of the Republic. In this period,
on one hand, laws based on Islamic law were applied, and on the other hand,
laws of French origin were also implemented. This duality led to contradicLons
and inconsistencies in the legal system. Consequently, it cannot be said that the
ONoman legislaLve efforts were very successful during this period (Kalabalık
2018: 147).

During the Republican period, there were two approaches to legislate ahead of
the founders of the republic. One was to establish legal rules that were suitable
for the condiLons and structure of the Turkish society, and the other was to
adopt foreign laws through a process called "ikLbas" (directly adopLng a foreign
law or translaLng it). The founders of the republic chose the second method,
namely, the ikLbas approach. When the ikLbas method was selected, laws from
various countries were adopted, not just from a single country. In other words,
a selecLve approach was embraced, and the principle could be expressed as
follows: "Take the best from wherever it is and implement it promptly" (Güriz
149-153; Kalabalık 2018: 147).

Naturally, some challenges arose in the applicaLon of the adopted legal rules
because it is not easy to apply rules prepared for one society to a different one.
Over Lme, efforts were made to adapt and modify the adopted rules to be more
suitable for the Turkish society and its needs. For example, within this
framework, village headmen were granted the authority to officiate marriages.
This was because at the Lme, the most common issues of complaint included
religious (imam) marriages and polygamous marriages. Given the transportaLon
and labor condiLons of that era, coming to the city to have a civil marriage
ceremony, which was mandatory, was a significant burden (Gürkan 2012: 59).

Within the ikLbas framework, laws such as the Swiss Civil Code, the Turkish Code
of ObligaLons, the ExecuLon and Bankruptcy Law, the Code of Civil Procedure
were adopted from Switzerland, the Criminal Procedure Law from Germany, and
the Criminal Code from Italy. Later on, these laws were repealed, and new laws
were enacted to align with the contemporary condiLons and needs, taking into
account developments in Western law.

The Socialist Legal System

According to socialism, the legal system is based on economic condiLons and the
economic order outlined in Marxist-Leninist teachings. It aims to transform
society and transiLon to a new social order. The uniqueness of this system lies
in the pursuit of a classless society, social jusLce, fair distribuLon of resources,
solidarity, the struggle against individualism, and the prioriLzaLon of societal
interests over personal interests. In Marxist theory, socialism is seen as a
transiLonal period during which the dictatorship of the proletariat (workers) is
established over the enLre society through the mediation of the state. It was
initially implemented in the Soviet Union and later in countries that either joined
or did not join the Eastern Bloc (Warsaw Pact) acer the Bolshevik (October)
RevoluLon in Russia in 1917.

In this legal system, individuals are generally not granted property rights. As a
result, public law has been more prominent in this system compared to private
law. This reflects the prioriLzaLon of public interest over individual interest. In
the socialist system, the law is considered a temporary institution and is viewed
as a product of class-based society. It is believed that when the communist stage
is reached, there will no longer be a need for law (Atay 2017: 168).

Acer the dissoluLon of the Eastern Bloc, this legal system ceased to be applied
in the former Eastern Bloc countries, with Russia being one of them. Today,
variations of this legal system can be observed in some countries with socialist
governments such as China, North Korea, and Cuba (Bilge 2007: 71).
Different Views on the Source of Law
Various opinions exist regarding the origin of legal rules. These views can be
categorized into two main headings. One is the belief that law originates from
will, while the other is that law is unrelated to will.

Views that Acknowledge Law Origina)ng from Will The Divine Will
Perspective.

According to this view, the source of law is divine. Both the creation and the
removal of legal rules are considered the work of the divine will. Legal systems
based on a theocratic understanding embrace this perspective.

As seen in Islamic law, for instance, the fundamental source is the Quran,
considered the product of a divine will. Changing its provisions by humans
is not possible.

The Human Will Perspective

According to this view, law is based on human will. Therefore, law and its
source are not supernatural, transcendent, or beyond humanity. However,
there are different opinions about to whom or which entity this worldly will
belong. Some believe this will belongs to the state, while others think it
belongs to those who hold economic power.

The Social Contract Perspective

This view, although it has its roots in ancient Greece and the teachings of the
Sophists, was primarily developed and explained in the modern era by figures
such as Thomas Hobbes and Jean-Jacques Rousseau. According to this
perspective, the foundation of law is based on a social contract.
 Views that Acknowledge Law Originating from Autonomic Sources

The views that claim that law does not rely on a divine will or human will, that
law emerges spontaneously and exists in nature, and that humans merely
discover and implement these rules are as follows:

Natural Law School

According to the concept of natural law, legal rules exist in nature, and humans
discover them for their own reasons. The understanding of nature has evolved in
different forms over ti me. In ancient Lmes, nature was understood as human
nature; in the Middle Ages, as divine will; and in modern times, as human reason.

Historical School of Law

This school emerged in the first half of the 19th century. According to this school,
law is not the product of a will. Law naturally emerges and develops over a
historical process. Those who adhere to this understanding believe that law is
the product of customs and traditions and is a reflecLon of a people's history.
According to the proponents of this school (founded by Friedrich Carl von
Savigny), law, just like language, arises and develops spontaneously in the spirit
of the people (volkgeist). Real law is customary law. Therefore, the source of law
should be sought in the lives of the members of society. This school is opposed
to the codificaLon of legal rules.

Sociological School of Law

This school does not accept that the source of law is the will of the legislator or
human reason. According to the proponents of this understanding, the source
of law should be directly sought in the relationships that exist within society.
When this research is conducted, it will be seen that the real source of law is
societal reality. Law has a broader meaning than positive law. Therefore, this
school does not adhere to a formalistic understanding like legal positivism. This
legal school acknowledges the existence of a law that is born independently of
the state and continues to exist independently of the state. According to this
legal school, the real source of law is the formation of social order.
In order for rules regarding marriage to develop, the insLtuLon of marriage must
first exist within society. Therefore, in terms of Lme, rules are not ahead of
events and insLtuLons. Rules develop within a societal process acer the
emergence of these insLtuLons. Consequently, this school does not
acknowledge that law is established through reason/human will. In this view,
law spontaneously arises in social life. The role of the state is simply to idenLfy
the emerging legal rules. According to this school, the purpose of law is to best
meet societal desires and needs, while minimizing societal costs and tensions in
return.

Analytical School of Law

According to the proponents of this school, posiLve law consists of rules
established by those in poliLcal authority, who are superior in a poliLcal sense,
to regulate the acLons of those subject to their authority. In every legal rule,
there is a command element. The command is intended to regulate how a
person and other individuals should behave in a certain way or refrain from
behaving in a certain way. If the command's posiLve or negaLve content is not
followed, sancLons are applied.

Normative Legal Positivist School

This school, founded by the Austrian jurist Hans Kelsen, asserts that legal
theory should only concern itself with posiLve law. Exploring just legal rules is
not the task of legal theory because fairness is an ideal that is not Led to
reason. Law deals with the issue of how sancLons, which have been socially
organized, are to be applied by the law.

Legal norms have a hierarchical structure. At the top, there is the basic norm.
The basic norm is considered valid because it is valid. According to Kelsen, all
norms, including the constitution, derive their validity from the basic norm.
Since there is only one basic norm in society, Kelsen doesn't recognize the
distinction between public law and private law. Therefore, Kelsen does not
accept the division between public law and private law.
 Characteristics of Legal Rules:
Legal rules have three characteristics, namely generality, abstractness, and
continuity.
Generality
The applicability of legal rules to everyone in the same situaLon is referred to
as the generality of legal rules. However, it should be noted that legal rules are
applied to anyone who objecLvely meets the condiLons in the legal event. For
example, the Labor Law applies only to those who are in an employee
situaLon. This does not detract from the generality nature of the Labor Law; it
does not eliminate its generality quality.
Abstractness
The applicability of legal rules to similar cases in terms of their applicaLon
condiLons is referred to as the abstractness of legal rules. An abstract legal
rule provides a wide range of possibiliLes for resolving concrete cases. By
interpreLng the abstract rule, a judge gains the opportunity to find soluLons
to all disputes falling within the scope of this rule. In fact, court decisions are
nothing more than the applicaLon of abstract legal rules to concrete cases. No
maNer how abstract legal rules may be, they do not possess the content to
address all possible concrete situaLons that may arise in the future.
Contemporary law is characterized by its abstract, not concrete, nature.
Continuity
This characteristic of legal rules means that legal rules will be applied from the
moment they come into effect until the day they are repealed. For example, a
law possesses the characterisLc of conLnuity as a legal norm. As a rule, it is
not enacted for a specific period of Lme. Therefore, it remains in effect unLl
repealed by another law or invalidated by the ConsLtuLonal Court. However,
it's worth noLng that there are laws with specific durations. The budget law is
the most well-known example of this. The budget law remains in effect for one
year. Other examples can also be given. In the event of a natural disaster in a
specific area, laws with a defined duration can be enacted to improve the
situaLon of those affected by the disaster. For example, assistance can be
provided to disaster victims for a period of one year, six months, or other
specified durations. Regulations related to tax debts can be made.
These examples do not alter the characteristic of conLnuity in laws..
Section Review
In this section, we have examined;
• societal order rules (religion, ethics, customs, and traditions,
law),

• the definiLon of law,

• various meanings of law,

• differences between law rules and other societal order rules,

• characteristics of legal rules,

• the major legal systems in the world (Roman-Germanic, Anglo-

Saxon, Islamic, Socialist).