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Questions and Answers
What does the positivist view emphasize regarding the validity of laws?
Which of the following is NOT one of Fuller's procedural requirements for the rule of law?
What does Hart's Rule of Recognition primarily emphasize?
What does the naturalist view argue about laws?
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Which legal principle allows for international intervention when a state fails to protect its population?
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According to Hart's rule of recognition, a law's validity depends on what factor?
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What conflict does natural law theory address in relation to legal systems?
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Which classical thinker asserted that 'the King is subject to God and law'?
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In the context of Roe v. Wade, what does the 2023 overturn signify?
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Under what context can child sacrifice be viewed as a legal issue warranting intervention?
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Which of the following best reflects Lord Devlin's view on morality and law?
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How does legal positivism differ from natural law theory?
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Which principle is core to legal positivism?
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What does the Universal Declaration of Human Rights guarantee regarding child sacrifice?
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What aspect of law does Hart's Rule of Recognition allow to evolve over time?
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What does the professor ultimately encourage students to explore regarding law?
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What principle does Article 2(7) of the UN Charter primarily emphasize?
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Which body exercises legislative power according to the Turkish Constitution?
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What is the maximum term length for the Grand National Assembly deputies?
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In which aspect does Article 104 of the Turkish Constitution state the President cannot issue executive decrees?
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What is not a power of the Grand National Assembly based on the provisions of the Turkish Constitution?
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What does Article 138 of the Turkish Constitution guarantee regarding judges?
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Which power cannot issue decrees concerning matters reserved for laws by the Turkish Constitution?
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What action is subject to judicial review according to Article 125 of the Turkish Constitution?
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What is the primary focus of moral analysis in lawmaking?
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In a syllogism, which component represents the conclusion?
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What is the first step in the case analysis structure?
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Which of the following is a crucial element of effective essay writing in law?
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Which of these is a primary source used for legal interpretation?
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What should an introduction in a legal essay explicitly include?
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What is an essential aspect of analysis in legal essays?
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Which resource is considered a crucial database for legal research?
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What is the primary function of the Constitutional Court in Turkey?
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Which article of the constitution emphasizes the independence of courts?
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How are judicial proceedings typically conducted in Turkey?
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What does Article 139 ensure regarding the tenure of judges?
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What is the role of the High Court of Appeals (Yargıtay) in Turkey?
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Who can initiate annulment actions in the Constitutional Court?
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Under which legal system do judges play a significant role in creating legal precedents?
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What is a key difference between civil law and common law systems as noted in the context provided?
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Study Notes
Moral Analysis of Lawmaking
- Ethical Dimension: Focuses on what is right or just from a moral standpoint, rather than what is legally prescribed.
- Questioning Law Alignment: Examines whether current laws align with moral values.
- Application of Law: Involves applying legal principles to specific factual scenarios.
Case Analysis Structure
- Facts of the Case: Details the events and circumstances that led to the legal dispute.
- Procedure: Identifies the parties involved, the court with jurisdiction, and the legal process followed.
- Legal Problem: Presents the arguments of each party involved in the dispute.
- Court’s Decision and Justification: Outlines the court's ruling and the reasons for their decision. This is known as the ratio decidendi.
- Critical Analysis: Analyzes the court’s decision, considering its strengths and weaknesses.
- Conclusion: Summarizes the key findings of the case analysis.
Essay Writing
- Knowledge: Demonstrates detailed and accurate understanding of the relevant legal principles.
- Analysis: (i) Explains the complexities of the law. (ii) Engages with academic arguments and addresses counter-arguments.
- Clear and Logical Structure: Provides a clear introduction, body paragraphs, and conclusion. Each paragraph should have a topic sentence and link back to the main argument.
- Research Skills: Uses primary and secondary sources effectively to support arguments.
Legal Research
- Databases: Utilizes legal databases (e.g., Westlaw, Lexis, HeinOnline) for finding legislation, cases, and journal articles.
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Sources of Law:
- Primary Sources: Include the Consitution and Parliamentary Acts.
- Secondary Sources: Encompass court decisions and academic opinions.
Essay Plan
- Strong Focus: Emphasis on clear structure, detailed knowledge, and legal analysis.
- Introduction: Clearly state the arguments and provide a map of the essay's structure.
- Body: Engage with counter-arguments within each paragraph.
- Conclusion: Summarize the main points of the essay and restate the position.
Assessment Criteria
- Knowledge: Accurate understanding of the relevant legal principles.
- Analysis: (i) Explains the complexities of the law. (ii) Engages with academic arguments and addresses counter-arguments.
- Clear and Logical Structure: Provides a clear introduction, body paragraphs, and conclusion. Each paragraph should have a topic sentence and link back to the main argument.
Positivist View
- Focus: Adherence to legal procedures and preventing arbitrary power.
- Example: A law is considered valid if it follows the rules of enactment, even if it is morally questionable.
Naturalist View
- Emphasis: Laws must align with higher moral principles or natural rights.
- Example: The Nuremberg Trials held individuals accountable for crimes against humanity, even though their actions were legal under Nazi law.
Fuller’s Procedural Requirements for Rule of Law
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Internal Morality of Law: For a law to have internal morality, it must meet these eight criteria:
- Generality: Laws must apply to everyone.
- Promulgation: Laws must be publicly known.
- Non-Retroactivity: Laws cannot apply to past actions.
- Clarity: Laws must be clear and understandable.
- Non-Contradiction: Laws should not contradict each other.
- Possibility of Compliance: Citizens must be able to follow the law.
- Constancy: Laws shouldn't change frequently.
- Congruence: Officials must follow the declared rules.
Case Example: Roe v. Wade
- 1973 Ruling: The U.S. Supreme Court declared anti-abortion laws unconstitutional.
- 2023 Overturn: The precedent set by Roe v. Wade was overturned showing how legal interpretations can change over time.
Natural Law: Historical Roots and Influence
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Classical Thinkers:
- Aristotle: "The King is subject to God and law."
- Cicero: Natural law is universal and eternal, and no one can alter or abolish it.
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Impact on Revolutions:
- American Declaration of Independence: Rights are self-evident and given by the Creator.
- French Declaration of Human Rights: Emphasized natural rights.
- Lord Devlin's View: Society has the right to punish acts deemed grossly immoral, even if they harm no one, to preserve social cohesion.
Legal Positivism: Key Ideas
- Proponents: John Austin, Jeremy Bentham, H.L.A. Hart.
- Core Principle: A law's validity comes from being enacted properly, not its moral content. Even evil laws can be valid.
- Hart's Rule of Recognition: A law is valid if it is created according to accepted procedures and recognized by officials.
- Hart's Perspective on Morality: A society does not need a shared morality. Laws can regulate self-harm for societal benefit (e.g., seatbelt laws, euthanasia debates).
- Joseph Raz: A legal system can technically follow the rule of law even if it violates human rights, such as under an oppressive regime.
Sources of Law, Hierarchy of Norms, and Court Structure
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Structure of a Legal Norm:
- Major Premise (Norm): General rule or principle.
- Minor Premise (Execution): Application in a specific context.
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Sovereignty:
- Art. 6 of Turkish Constitution: Sovereignty belongs to the nation and can only be exercised through authorized organs.
National Sovereignty and the Constitution
- Legislative Power (Article 7): Grand National Assembly of Turkey exercises legislative power on behalf of the nation.
- Executive Power (Article 8): Exercised by the President of the Republic in accordance with laws and the Constitution.
- Judicial Power (Article 9): Exercised by independent and impartial courts.
- Supremacy of the Constitution (Article 11): The Constitution binds all state organs and no law or authority can override its provisions.
Legislative Power
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Grand National Assembly:
- Composition: 600 deputies elected by universal suffrage.
- Election Term: 5 years, synchronized with the Presidential elections.
- Powers of the Assembly: Enact, amend, or repeal laws, approve budgets and international treaties, declare war, issue currency, and grant amnesty.
Executive Power
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President of the Republic (Article 104):
- Head of State and exercises executive power.
- Represents national unity and ensures constitutional functioning of state organs.
- Can issue presidential decrees, but not on fundamental rights or matters reserved for laws by the Constitution.
Judicial Power
- Independence of the Courts (Article 138): Judges act independently, following the Constitution and laws. Courts cannot receive orders from other branches or individuals.
- Judicial Review (Article 125): Administrative actions are subject to judicial review for legality, not expediency. Courts cannot restrict executive functions beyond the law.
Court Structure
Judiciary Overview
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Article 138: Independence of Courts:
- Judges are independent and follow the Constitution, laws, and personal conviction.
- No interference from external entities (e.g., government or individuals).
- Legislative and executive bodies must comply with court decisions without altering or delaying their execution.
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Article 139: Security of Tenure:
- Judges and prosecutors cannot be dismissed or forced into retirement before the constitutionally mandated age.
- Salaries and benefits are protected.
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Article 141: Public Hearings:
- Court hearings are generally public, but may be closed for reasons like public morality or security.
- Trials must be concluded quickly and cost-effectively.
Court System in Turkey
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Constitutional Court
- Functions: Examine constitutionality of laws, presidential decrees, and parliamentary rules; Act as the Supreme Criminal Tribunal for cases involving high-ranking officials; Review individual applications for fundamental rights violations under the European Convention on Human Rights (ECHR); Hear cases regarding political parties and decide on their dissolution.
- Annulment Actions: Can be initiated by the President, major political parties, or 1/5 of the Assembly members. Time limit: 60 days from the law’s publication.
- Supreme Criminal Tribunal Role: Tries high officials (e.g., President, ministers, top judges, military commanders) for offenses related to their duties.
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Judicial Justice System
- High Court of Appeals (Yargıtay): The top appellate court for civil and criminal cases.
Scenario: Child Sacrifice
- Question: Is the inference of the international community justified, moral, or legal?
The Legal Justification for Intervention
- Responsibility to Protect (R2P): Under international law, states have a responsibility to protect their populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. The international community can intervene when a state fails to uphold this obligation.
- Child Sacrifice as a Human Rights Violation: Child sacrifice can be framed as a gross human rights violation or a crime against humanity.
- Universal Declaration of Human Rights (UDHR): Guarantees the right to life and protection from inhuman treatment, making child sacrifice a violation of international law.
- Red Cross Australia: Provides background on R2P and its evolution.
- E-International Relations: Discusses the legal character of R2P and its relationship with the UN Charter.
- Oxford University Press: Commentary on the UN Charter, analyzing how Article 2(7) is applied.
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Description
Test your understanding of the ethical aspects of lawmaking and how they align with moral values. This quiz explores the structure of case analysis, including the legal problems and conclusions drawn by courts. Challenge yourself with scenarios that require critical thinking about legal decisions.
