Public vs. Private Law in Turkish Law

Study Notes

Public Law: Regulates the organization of the state, relations between states, and state-individual interactions.
Private Law: Regulates relationships between individuals or entities.
Basis of Distinction: Rooted in Roman law, where jus publicum (public law) dealt with state structure while jus privatum (private law) focused on individual interests.
Continental vs. Anglo-Saxon: This distinction is prominent in Continental European (Civil Law) systems, but not as clear in Anglo-Saxon (Common Law) systems.
State's Role:
- Public Law: State holds authority, enforces laws, and acts in the public interest.
- Private Law: State acts as neutral mediator, focusing on resolving disputes and protecting individual rights.
Fundamental Principles:
- Private Law: Emphasizes equality and freedom of will between individuals.
- Public Law: State acts ex officio (based on its official capacity) and has a superior position.

Constitutional Law: Defines government structure and individual rights.
Criminal Law: Deals with offenses against the state and prescribes penalties.
Administrative Law: Regulates public administration and its interactions with citizens.

Civil Law: Governs personal relationships, property ownership, contracts, and family matters.
Commercial Law: Deals with businesses and commerce.
Inheritance Law: Defines asset distribution after death.
Law of Obligations: Regulates debt relationships between individuals, involving performance of specific acts.

Application of Laws: Public and private law dictate how laws are applied and who is responsible for enforcement.
Sources of Law:
- Continental European Systems: Primarily rely on written laws.
- Anglo-Saxon Systems: Heavily influenced by judge-made decisions (common law), which set precedents.
Evolution of Law:
- Continental Systems: Law evolves through legislative changes.
- Anglo-Saxon Systems: Law evolves through judicial decisions.

Hierarchy of Norms: The Constitution is the highest legal document in Turkey. All other laws must align with it.
Principal Constituent Power: The constitution establishes the state’s structure, defines how power is allocated, and regulates the exercise of state power.
Main Subjects of Regulation:
- State's Basic qualities: Defines Turkey as a democratic, secular, social state under the rule of law.
- State-Individual Relations: Establishes individual rights and freedoms, regulating state-citizen interactions.
- State's Functions: Outlines the legislative, executive, and judicial functions of the state.
- Organs of State Power: Defines the organization, powers, and interrelationships of the legislative, executive, and judicial branches.

Public Power: For a state-individual relationship to be governed by public law, the state must be exercising its public power, reflecting its superior position.
Enforcement: The state enforces laws and regulations in the public interest.