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Questions and Answers
Questions and Answers
Who is Hans Kelsen?
Who is Hans Kelsen?
An Austrian legal theorist known for developing the Pure Theory of Law.
The Pure Theory of Law separates law from other social sciences.
The Pure Theory of Law separates law from other social sciences.
True (A)
What is the term for the fundamental norm that provides authority to the entire legal structure according to Kelsen's theory?
What is the term for the fundamental norm that provides authority to the entire legal structure according to Kelsen's theory?
Grundnorm
What is natural law?
What is natural law?
Natural law is created by governments and enforced by authority.
Natural law is created by governments and enforced by authority.
Mandatory legal rules are laws that must be followed with exceptions.
Mandatory legal rules are laws that must be followed with exceptions.
What is the main purpose of mandatory legal rules?
What is the main purpose of mandatory legal rules?
What are norms, in the context of law?
What are norms, in the context of law?
Legal norms are not fundamental to the structure of legal systems.
Legal norms are not fundamental to the structure of legal systems.
What is common law?
What is common law?
How is common law based on precedents?
How is common law based on precedents?
What is the highest law of the land in Turkey?
What is the highest law of the land in Turkey?
What are the different sources of Turkish law?
What are the different sources of Turkish law?
What is the difference between private law and public law?
What is the difference between private law and public law?
What is jurisprudence?
What is jurisprudence?
Doctrines are legally binding like laws.
Doctrines are legally binding like laws.
What is the main difference between common law and civil law?
What is the main difference between common law and civil law?
What are the three main features of customary law?
What are the three main features of customary law?
What is a presidential decree?
What is a presidential decree?
Presidential decrees are always passed through the usual legislative process.
Presidential decrees are always passed through the usual legislative process.
In Turkey, presidential decrees became prominent after the 2017 constitutional referendum which expanded the powers of the president.
In Turkey, presidential decrees became prominent after the 2017 constitutional referendum which expanded the powers of the president.
What is the scope of authority for presidential decrees in Turkey?
What is the scope of authority for presidential decrees in Turkey?
Presidential decrees can regulate areas where the Turkish Constitution specifies that legislation is required.
Presidential decrees can regulate areas where the Turkish Constitution specifies that legislation is required.
If a law is already in place, a presidential decree can contradict it.
If a law is already in place, a presidential decree can contradict it.
What is the role of the Constitutional Court of Turkey in relation to presidential decrees?
What is the role of the Constitutional Court of Turkey in relation to presidential decrees?
A presidential decree is automatically overridden by new legislation passed by parliament.
A presidential decree is automatically overridden by new legislation passed by parliament.
Questions and Answers
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Flashcards
Flashcards
Hans Kelsen
Hans Kelsen
Austrian legal theorist, developed the Pure Theory of Law, separating law from morality and sociology.
Pure Theory of Law
Pure Theory of Law
Legal theory that studies law objectively, without considering morality or sociology.
Grundnorm
Grundnorm
Fundamental norm, the basis for a legal system's authority.
Natural Law
Natural Law
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Positive Law
Positive Law
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Mandatory Legal Rules
Mandatory Legal Rules
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Legal Norms
Legal Norms
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Common Law
Common Law
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Civil Law
Civil Law
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Source of Turkish Law
Source of Turkish Law
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Private Law
Private Law
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Public Law
Public Law
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Jurisprudence
Jurisprudence
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Customary Law
Customary Law
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Presidential Decree
Presidential Decree
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Study Notes
Study Notes
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
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Official orders issued by the president
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Often bypass the legislative process
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Became more prominent after 2017 referendum
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Expanded president's powers to issue decrees with the force of law (executive matters)
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Scope of Authority: President can issue decrees on executive matters (administrative organization, appointments, executive actions)
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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
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Judicial Review: The Constitutional Court has the power to review and annul unconstitutional decrees.
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Relation to Parliamentary Legislation: Parliamentary laws override decrees on the same matters
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