INTRODUCTION TO LAW

FATH UNIVERSTY
LAW FACULTY
FALL TERM 2013/14

Ass. Prof. Dr. Engin Karabulut

THE CONCEPT OF LAW

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The meaning of law in social life

The relation between law and justice
The difference between law and non-legal
sources of rules

THE MEANING OF LAW IN SOCIAL LIFE

THE MEANING OF LAW IN SOCIAL LIFE

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Living in society requires an regulative order to

which individuals are subjected. Otherwise social
life could collapse in the long run and moreover
might end in anarchy and brutal force. Such a
society cannot provide its members with security.
Confusion and chaos would be the consequence.
Inversely, order is the absence of disturbances and
unruliness. Just with a certain order, society can
provide security for its members. For that reason
members of society seek order.

THE MEANING OF LAW IN SOCIAL LIFE

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In every social organisation, there is a kind of

(functional) social order including binding rules.
Associations, foundations, clubs etc. have an order
ruling the conduct of their members. Furthermore,
any society will eventually develop customary social
activities.

THE MEANING OF LAW IN SOCIAL LIFE

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From the legal point of view, order is the body of

binding rules, regulations and customs that apply to
the relations between the members of a certain
society. Each member is obliged to obey this order
of the society. The individuals amongst each other
are necessarily bound in their actions by the
established order.

THE MEANING OF LAW IN SOCIAL LIFE

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Rights and freedoms make only sense for individuals

living in a society. Without social fellows, there is no
need for rights and freedoms. Contrarily, rights and
freedoms must be conceded in social life. These
rights and freedoms concerning activities of
individuals in a society are determined by the legal
order, or the law.

THE MEANING OF LAW IN SOCIAL LIFE

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In short:
The law, whether embodied in written or customary
rules, is a required element of social life. The social
relationships between individuals are to be
regulated by the law. Individuals are legally bound
to obey the commands of the law. So the pattern of
their lives is set by the legal norms.

THE RELATION BETWEEN LAW AND

JUSTICE

THE RELATION BETWEEN LAW AND

JUSTICE
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From the major view, the concept of justice means

the fair result of a legal dispute. Therefore justice is
understood as the correct application of fair laws.
Following this, the applied law must not be in
conflict with justice. The main issue to resolve is what
happens if there is such a conflict. This issue leads to
two basic legal theories: legal positivism and natural
law.

THE RELATION BETWEEN LAW AND

JUSTICE
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In legal positivism the vital viewpoint is the positive

law. The central claim of legal positivism is that a
given rule within a legal system is legally valid, if its
(positive) sources are valid: only rules on the
statute books and other written forms can be a part
of the (valid) law. The fact that a rule is unjust is
never sufficient reason for not being the law.
Positivists consider the law as a matter of what has
been posited.

THE RELATION BETWEEN LAW AND

JUSTICE
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In contrast, the natural law view regards the law

from moral perspective. If (positive) law is
morally correct, thus it is valid; unless it is not. The
validity measure of (positive) law is a set of moral
norms governing human conduct. Thus, if (positive)
law is in conflict with natural law, the latter ought
to be valid.

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THE DIFFERENCE BETWEEN LAW AND NONLEGAL RULES

THE DIFFERENCE BETWEEN LAW AND

NON-LEGAL RULES
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The whole body of rules (or principles) which

regulate the actions of individuals in a society
constitutes the norms of social conduct. In legal
terminology, the term norm refers to legal rules.
All rules (or principles) that regulate and limit the
behaviour of individuals in a society may be called
the law or the legal order. However, the social order
is not only composed of legal rules. There are also
both the religious and the moral order.

THE DIFFERENCE BETWEEN LAW AND

NON-LEGAL RULES
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Moral rules are norms, concerning right or wrong

conduct; also called ethics. Like legal rules, ethics
affect the question as to what ought to be.
Therefore it is a measure and standard for human
activities.
Legal rules often correspond to ethics, but not
always. While some legal rules are without moral
content, some may even contradict ethical values.

THE DIFFERENCE BETWEEN LAW AND

NON-LEGAL RULES
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E.g. according to Art. 705 sec. I

Turkish Civil Code, registration in the
land register (tapu siciline tescil) is a
requirement for becoming the owner
of land. Despite of the importance
for legal practical, this legal rule is of
no moral impact.

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NON-LEGAL RULES
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On the contrary, to fall under the statute

of limitation (zaman am; mruruzaman)
excludes legally the right to sue for a due
debt (bor). Generally, the statutory
period of limitation for a contract debt is
10 years (Art. 146 Code of Obligations).
Morally, the due debt has to be pay off,
however.

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NON-LEGAL RULES
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In practice, legal rules are distinguished from

other rules of social conduct through
enforcement: if legal rules are not observed
voluntarily, the necessary measures, including
compulsion, are applied by the state. Taking
state action cannot be caused by violation of
other rules. The states authority decides which
social conduct are to be a legal rule and which
not.

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NON-LEGAL RULES
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In contrast, religious and moral sanctions

are not exercised by the state, unless
these sanctions are also directed by the
law.
From this it follows that, a rule of social
conduct is a legal rule, if the state
decides to enforce compliance to that
rule.

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NON-LEGAL RULES
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The measure taken by the state to enforce

legal rules are called sanctions
(meyyide, yaptrm).
In general terms, a sanction is what will or
may legally happen if a person does not
follow a legal rule. The concept of
sanction
includes
also
rewarding
compliance.

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NON-LEGAL RULES
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The sanction carried out by public authorities is

either criminal (punishment ceza), civil (e.g.
compensation tazminat), or administrative
(e.g. revocation of license ruhsatnamenin geri
alnmas).
The best-known kind of a criminal sanction is
punishment. The law defines certain types of
violating acts as crimes (offences) and provides
for the punishment of the violators.

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NON-LEGAL RULES
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Punishment is any fine (para cezas) or

confinement (imprisonment hapis cezas)
inflicted on a person for a crime
committed by him/her.
As a general principle, for every act,
considered as a crime, the law must
clearly specify the criminal punishment.

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NON-LEGAL RULES
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One type of civil sanction is monetary

compensation for injuries. If a wrongful act
results in injury to another, the wrong-doer
compensate the injury. A person who inflicts
damage (material/immaterial) upon another
person, or his property, is in principle legally
liable. Consequently, to rectify the wrongful act
the injured person must be paid an amount of
money.

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NON-LEGAL RULES
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The law divides legal wrongs into two categories:

criminal wrongs and civil wrongs.
In the first category, the injuries are to be redressed
through criminal prosecution, in the second one
through civil law actions, if necessary. In criminal
prosecutions, the state punishes those responsible for
criminal wrongs, whereas in civil law actions the
injured party files a private suit for damages.

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NON-LEGAL RULES
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Criminal cases are tried in criminal courts

(ceza mahkemeleri), civil cases in civil
courts (hukuk mahkemeleri).
A wrongful act can be treated as a
criminal or a civil matter. The law-maker
decides whether the appropriate sanction
should be a criminal punishment or a
payment of damages to the victim.

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NON-LEGAL RULES
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A person who commits both a criminal and a civil

wrong by the same act will be punished criminally
and imposed to pay a compensation. For example,
A destroys Bs car, which was worth 40,000 TL, by a
knowingly and wilfully conduct. B has a legal right
to receive compensation for his loss, even through
civil court procedure. In addition, A may also be
punished for malicious conduct, which carries a
sentence of up to 3 years imprisonment (Art. 151
Turkish Criminal Code).

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NON-LEGAL RULES
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Besides monetary compensation, there are

further civil sanctions.
One type of civil sanction is nullity (yokluk). For
example, marriage is a ceremonial contract
(trenli szleme; merasimli akit). It is to be
celebrated by an authorized person. If the
celebrant is not authorized, the marriage will
be absolutely inoperative. The man and
woman will not be considered to be married.

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NON-LEGAL RULES
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Another type of civil sanction is absolutely

inoperativeness (kesin hkmszlk; mutlak butlan).
That means, a legal act (hukuki ilem/muamele)
violating the law is legally ineffective from the
beginning (ab initio). In general, a legal act is
absolutely inoperative, if it fails to follow some
rules to meet legal requirements. F.e., a land sales
contract (gayrimenkul sat szlemesi) not
concluded before an authorized land registry
office (yetkili tapu dairesi) will be absolutely
inoperative.

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NON-LEGAL RULES
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A further kind of nullity comprises acts that are not

automatically inoperative from the beginning, but are
voidable (iptal edilebilir). In the event of voidability, the
parties (or to one of them) may nullify the effect of a
legal act. For example, if one party to a contract
(szleme, akit) has been induced by error (hata;
yanlma) or fraud (hile; aldatma) or threat (ikrah;
korkutma), it may void such a contract by a unilateral
(tek yanl) declaration (Art. 39 sec. 1 Code of
Obligations). If he or she does not choose to void the
contract it will remain legally valid and binding.