basic concepts that's not so basic Flashcards
Rule of law? **
Two Dimensions:
1) Rule BY law: we rule everything in accordance with law. Anyone can make rule BY law
2) Rule of law: That the own government ties his hands with the rule of law, and that he himself abides to it.
HRs, democracy, transparency
ex. magna Carta
Legal positivism/ natural law
Legal positivism:
- Law is man-made and is separate from morality
- ex. speed limits are to maintain road safety, even if no one is on the road it’s law.
- ex. slavery was legal, morally right? no, but law.
Natural Law:
- law should reflect moral principles, unjust laws are illegitimate
Please just read “Lecture 2” short, sweet, and I can’t make cards for this shit
whats that thing called where we can trust our laws: w
Legal Certainty, why do we care?
it serves for our trust
- about the content of the law
- we trust it will be enforced
- and we trust that it will be applied consistently
- we care because we are sure and trusting in elections, when I get arrested I’m sure and trust in my government to not torture me.
Domestic Legal Sanctions
Criminal: fine, confinement
Civil: compensation, nullity (to cancel)
Sources of Law - Common Law
Anglo systems
Precedents, decision of the judge
then, in similar cases, you give the same judgement as the previous judge who created the law did.
In the US, if a judge wants to go against the precedent, it’s a huge deal, explain why. how, etc.
Sources of Law - Civil Law
“Continental European Lawyers”
Primary sources: written and unwritten
Secondary sources: Auxiliary
Don’t need to follow case law, because the law itself was the court decision.
Primary Sources of Law:
- consitution
- statute, law, acts,
International treaties
Presidential decrees
other
Unwritten:
- Customary law: long standing practice, which has been recognized as being obligatory and binding by the general public
ex. Raising white flags - surrender(don’t harm them!)
If Turkey uses civil law, why does Article 1 of the civil code say that in civil disputes, the judge can decide?
Interpreting law isn’t making law, it’s trying to understand it. And this is literally what judges in civil law do, they read the laws, then interpret the case then make the sentence.
Hierarchy of the law/norms (in Turkey)
- Constitution
- International treaties and HRs freedoms
- Law, statutes, acts
(customary laws, criminal law, international treaties, state of emergency presidential decrees, etc). - Presidential decrees (they don’t represent the society)
- Previous regulation
- Bylaws (regional acts, like speed).
Methods of Legal reasoning
- Argumentum a Contrario: an argument derived from the opposite of the meaning of a legal rule
example:
- Adoption is permitted only where an unmarried is at least 30 yrs old
- Ppl younger than 30 can’t adopt a child
- Mr. B is younger than 30 (fact)
Mr. B can’t adopt (judgement)
- Syllogism:
the act of thought when given two premises, we proceed to a third premise.
- all men are mortal
- Aristotle is a man
- Thus, Aristotle is mortal - Argumentum a fortiori
- If less of something is forbidden, the lot of it is also forbidden, if the lot is allowed, the less it also allowed
ex. It is forbidden to step on the grass- you can’t sit on it either then.
Ex. You can’t smoke smoke cigarettes here, so, you can’t smoke either.
Burden of Proof / Presumptions
Burden of Proof:
- whoever commences the legal action has the initial burden of proof.
- in criminal cases: prosecution
- civil cases: plaintiff
Presumptions: the assumptions of the truth of a fact without direct proof
- presumed to be true until someone claims that they aren’t
- natural presumptions: circumstantial evidence
- legal presumptions: established by the law
ex. the woman who gave birth is both the genetic and legal moth (presumption of maternity)
*Presumptions are linked to burden of proof
- because presumptions are true until burden of proof are initiated
- the burden of proof tells us who has the duty of proving
Private law vs Public Law
Public law:
regulates the relations between private individuals and the state
ex. constitutional
administrative
criminal
etc
Private Law:
regulates relationship between two private persons
family law, law of property
contract law
etc.
7 stages of application of legal rules:
- IS THERE AN APPLICABLE LAW
CIVIL LAW:
This refers to the area of law that deals with disputes between private individuals or entities. It is focused on private rights and obligations. contracts/family etc.
Law → present → the judge will apply it
→ not present → the judge will look for customary law
→ customary law exists → the judge applies it
→ customary law doesn’t exist → the judge creates the law (but just for that case)
PUBLIC LAW: This area of law governs the relationship between individuals and the government. It involves laws that affect society as a whole and the functioning of the state.. criminal law, constitutional, etc.
→ The judge cannot decide based on customary law nor can it create laws
Because we don’t want judges to create new things that constitute as being illegal
Judges cannot base their decisions on customary law, nor can they create new laws.
This is to prevent judges from expanding the scope of what constitutes illegal behavior, which could infringe on individual freedoms.
Argumentum a Contrario:
This Latin term means “argument from the contrary,” which suggests that if something is not explicitly permitted by law, it should not be inferred as allowed.
- WHETHER THERE IS A GAPE IN THE LAW
this is seen with the former step!
ex. the punishment of x crime is 1 - 3 yrs, how to determine the application of the punishments? the power of discretion belong to the judge - THERE IS LAW BUT ITS AMBIGUOUS
a) Grammatical interpretation
b) Historical Interpretation (preparation document, parliament discussions, etc).
ex. the preparation document of the ICC is based on the Rome Statute, so the ICC will never try drug trafficking, nor terrorism bc the preparation document for the statute
c) systemic interpretation
A method of interpreting laws by considering how they relate to the entire legal system.
example - Text of the Law: Prohibits parking during specific hours.
- The judge looks at other related laws, such as those about public safety and traffic regulations.
- They also consider the purpose of the street cleaning law: to keep the streets clear for sanitation workers and maintain public cleanliness.
- MULTIPLE LAWS ARE APPLICABLE TO THE CASE
→ Lex Superior: superior norm suppresses inferior norm ex. constitution #1, superior
→ Lex posterior: later norms suppresses earlier norms
→ Lex specials: special norms suppresses general norms ex. everyone stops at red light, but special norm for ambulances
- these relate to hierarchy of laws - APPLICATION OF NORMS IN TERMS OF PLACE
→ principle of territory (for public law matters)
- our laws are applicable in our country - land, sea, and air (= country) SOVEREIGN EQUALITY - all states are equal and sovereign, so no states can impose laws upon others
→ Principle of nationality (for private law matters)
Means that the laws of a person’s country of citizenship (national law) apply to that individual, regardless of where they are in the world. This principle often governs private law issues such as family law, contracts, and inheritance.
*exception: when two gay guys try to get divorced in turkey (gay marriage is illegal here) - APPLICATION OF LAWS IN TERMS OF TIME
a) Entry into force - need time after ratification to entry into force because the system has to adapt
- except parliament acts, which are adopted into law as soon as they sign it
b) Desuetude - legal principle where a law becomes ineffective or unenforceable due to non-use or lack of enforcement over time.
- abolition: explicitly cancels the law/or implicitly do so.
- annulment (cancels it)
NON-RETROACTIVITY OF LAWS
def: laws do not apply to actions that happened before the law was enacted
example: driving with a seatbelt when it because a law you don’t arrest everyone who didn’t do it before.
exceptions:
a) private law/morality
b)favoring the perpetrator
c) current cases
How did the Nuremburg trials occur, if there were no laws made for it?
through non-retroactivity, it made lawyers think.
However, please knew that it was a custom
due to natural law.
Common law vs. Civil Law
Civil law:
- judge based system
- judge is the direct representative of the state to conduct the trial, define the scope, and extend the inquiry to decide the facts AND law.
- Judge is way more involved
- Judge doesn’t make the law, just applies it
Common law:
- jury system
- judge is detached
- forbidden from engaging in any independent investigation of the case
- decision of the judge creates law and is binding on other judges
Novels: (new case entirely) **
then, common law and civil law is the same
b/c
common: judge looks at previous cases
civil: judge makes the case
So why do systems differ if the end point is the same?
It’s because of customs, and norms - england’s conservative nature gave more importance to maintaining its past judgements
But in the continental law, it’s derived from Roman law
What does Constitutional law regulate?
Exercise of state power
Structure of the states, its constitutional functions and practices
Distributes governmental power
Fundamental rights and freedom
Lays down basic principles for all other branches of law
Constitution can be codified or uncodified
Republic vs democratic state
Republic:
no monarchies
Democratic: more than 1 political party
checks and balances - legislative, executive, judiciary
free elections, held in timely periods
Secular State
1) Freedom of religion (art. 2)
a. unlimited freedom of religion
i. freedom not to believe
b. limited freedom of worship - you can’t start a fire in street b/c you worship
c. freedom of belief and worship are different
2) Separation of Religion and State affairs:
a. No official state religion - don’t have it in their constitution
b. the state should be impartial before all religions
c. the state should treat religious members all equally
d. religious and state institutions should be separated
e. legal rules shall not be subjected to comply with religious rules
