Public vs Private Law

Types of Law

• There are four types of law: Public, Private and Mixed

Historical Dimensions

• In primitive societies, law lacked scientific quality, relying on tradition rather than rational legislative behavior.
• Consequently, there was no distinction between public and private law.
• The emergence of the state brought a duty to protect individual rights, leading to the classification and separation of public and private law.

Public Law vs Private Law

• Based on Roman law, the science of law divides into public and private law.
• Public law involves legal rules concerning the Roman state.
• Private law consists of rules governing relationships between private individuals.
• Mixed law has emerged which combines characteristics of public and private law.
• Therefore, law is divided into three branches: public, private, and mixed law.

Dividing Law into Public and Private

• Public law grants authorities privileges not allowed by private law.
• It allows the state to pursue public interests through means like taxation and military service.
• Public law allows the state to amend or cancel administrative contracts in line with public interest.
• Private law requires consent from both parties for any amendments.
• Public law aims to achieve public interest.
• Private law aims to achieve private interest.
• Disputes involving the state fall under administrative judiciary, while other cases fall under ordinary judiciary.

Main Norms Dividing Law into Public and Private

• The interest norm is derived from the distinction between public and private interest.
• Public law pursues public interest, while private law aims to fulfill personal interests.
• The nature of the rules norm bases on whether rules are peremptory or complementary.
• Public law rules are peremptory and cannot be violated by agreement.
• Private law rules are complementary, and can be violated by agreement.
• Status of persons norm is based on the legal relationship of the persons.
• Public law regulates relationships involving the state or its branches.
• Private law regulates relationships between private persons or members of society.

Public Law

• It is a set of rules that regulate the state's relationship with its various institutions, and its relationship with individuals.
• Public law includes:
  • Constitutional Law
  • Financial Law
  • Administrative Law
  • Criminal Law
  • Public International Law.

Constitutional Law

• The Constitution establishes the organization and function of the State.
• It defines the relationship between state institutions and citizens' fundamental rights.
• Types of constitutions are either written or unwritten .
• Written constitutions have provisions and rules laid down in official documents.
• Unwritten constitutions, also known as customary constitutions, derive provisions from traditions and norms, binding on public authority.
• Historical development of constitutionalism in Turkey includes the following:
  • 1808 Sened-i İttifak
  • 1839 Tanzimat Edict
  • 1856 Reform Edict
  • 1876 Kanun-i Esasi
  • 1908 Constitutional amendments
  • 1921 Constitution
  • 1924 Constitution
  • 1961 Constitution
• The Constitution of 1982 is currently in effect in Turkey.

Financial Law

• It encompasses a set of legal rules that regulate the state's finances.
• Financial law defines state resources and regulates the expenditure of revenues on state utilities.
• Tax Law regulates mutual rights and duties arising from the tax relationship between the state and real or legal persons within legal limits.

Administrative Law

• It regulates the activities of the executive power during its administrative functions.
• It clarifies the mechanism for the executive power’s management of public facilities like hospitals and police stations.
• It also addresses the use of state funds, and regulates its relationship with public administrations and bodies.

Characteristics of Administrative Law

• It is issued by the judicial power.
• Rules and laws are not grouped into a single code.
• Administrative law emerged after the French Revolution (1789-1799) and is rapidly developing.
• The judge gives his decisions with personal discretion.

Criminal Law

• This defines criminal acts and behavior.
• Criminal law defines the penalties imposed on those who commit these crimes.
• The basic law in the field of criminal law in Turkey was passed on September 26, 2004 and is Turkish Penal Code 5237.

Public International Law

• A written agreement between subjects of international law creates legal effects and is governed by international law.
• It regulates the relationship between states and also with various international organizations.

Private Law

• A set of rules that regulate relationships between individuals.
• Private law includes:
  • Civil law
  • Commercial law
  • Contract law

Main Areas Covered by Private Law

 - Creation and enforcement of contract
 - Divorce and separation
 - Contract
 - The ownership and property
 - Enforcement of debts
 - Claims for negligence
 - Bankruptcy
 - Consumer goods and services
 - Company and commercial matters

Civil, Commercial and Contract Law

• Civil law regulates relationships between individuals.
• Commercial law regulates commercial relationships of individuals.
• Contract law governs making contracts, carrying them out, and determining remedies for breaches.
• Contract law aims to provide a legal framework for parties to regulate their contractual obligations.

Mixed Laws

• A set of rules that are difficult to define as they overlap between public and private law, such as the labor law.
• It regulates relationships between individuals like workers and employers.
• The state intervenes via laws regarding working hours, insurance, and salary improvement.

Labor Law

• The set of rules that regulate and define the relationships between employers and employees, whether in the public or private sector.

Characteristics of Labor Law

• Rapidly developing.
• Rules are subjective and refer to only business matters.
• Has many external and internal sources.
• Includes mostly peremptory rules.