Legal Theories Overview: Kelsen and Natural Law

Hans Kelsen

• Austrian legal theorist, known for the Pure Theory of Law
• Separates law from other social sciences (e.g., morality, sociology)
• Emphasizes objective study of law
• Argues law is based on a Grundnorm (fundamental norm)
• This norm provides authority to the whole legal structure

Natural Law

• Philosophical theory positing the existence of inherent and universal laws of nature
• Suggests laws should be based on morality and justice grounded in human reason
• Contrasts with positive law (created by governments)

Mandatory Legal Rules and Authority of Legal Rules

• Laws that must be followed without exception (e.g., criminal law)
• Establish authority of legal rules
• Require citizens to act in specific ways
• Binding due to official source (e.g., government, constitution)

Norms

• Standards of behavior accepted as part of the legal order
• Can be binding (legal norms, backed by sanctions) or social expectations (informal norms)
• Fundamental to structure of legal systems
• Shape acceptable behavior and maintain order

Common Law

• Predominantly used in UK, US, and former British colonies
• Based on precedents (past judicial decisions)
• Past rulings influence future cases
• Relies heavily on judge-made law, contrasting with codified statutes (civil law)

Source of Turkish Law

• Based on several sources:
  • The Constitution (highest law)
  • Legislation (laws passed by the Grand National Assembly)
  • Customary Law (traditions and customs)
  • Case Law (precedents from higher courts)
  • Doctrine (academic writings)

Private Law vs. Public Law Distinction

• Private Law: Governs relationships between individuals (e.g., contracts, property, family law)
• Public Law: Deals with issues between individuals and the state/government (e.g., constitutional, administrative, criminal law)
• This distinction organizes legal principles and processes

Jurisprudence and Doctrines

• Study and theoretical analysis of law
• Aims to understand the nature, sources, and purpose of laws
• Doctrines are academic and theoretical writings on law, but not legally binding
• May influence legal reasoning and interpretations

Common Law vs. Civil Law Distinction

• Common Law: Relies on case law (judges' decisions create precedents)
• Civil Law: Based on comprehensive statutes and legal codes (judges apply written laws to cases)

Customary Law

• Unwritten law arising from long-standing practices
• Key Features:
  • Continuity: Practice consistently followed over time
  • Ancient: Deep historical roots
  • Common Belief: Generally accepted and viewed as binding by the community

Presidential Decrees in Turkey

• Official orders issued by the president

• Often bypass the legislative process

• Became more prominent after 2017 referendum

• Expanded president's powers to issue decrees with the force of law (executive matters)

• Scope of Authority: President can issue decrees on executive matters (administrative organization, appointments, executive actions)

• Limits of Decrees: Cannot regulate areas where the Turkish Constitution requires legislation (e.g., fundamental rights), or areas already covered by law (must not contradict existing laws)

  • Parliamentary laws take precedence over decrees

• Judicial Review: The Constitutional Court has the power to review and annul unconstitutional decrees.

• Relation to Parliamentary Legislation: Parliamentary laws override decrees on the same matters