Fundamentals of Law PDF

## SOCIETY AND ORDER ### Chapter #1 Since with the earliest days of recorded history, humans have lived in communities. This mode of communal living has long proved to be both natural and necessary for the survival of humankind. The English poet John Donne (1572-1631) wrote nearly 300 years ago: >...

## SOCIETY AND ORDER ### Chapter #1 Since with the earliest days of recorded history, humans have lived in communities. This mode of communal living has long proved to be both natural and necessary for the survival of humankind. The English poet John Donne (1572-1631) wrote nearly 300 years ago: > No man is an island, entire of itself; every man is a piece of the continent... In order to meet their most elementary needs and to be protected from the dangers of the natural environment, humans must live in society with their fellow beings, given the near impossibility of survival in nature entirely alone. Robinson Crusoe¹ is a fictional character. But even if we were to assume that the story were true, in order to survive on the uninhabited island Crusoe made use of the technical skills and knowledge he had acquired before he was marooned there. In other words, having lived in society for many years before he was shipwrecked, he had acquired a store of knowledge. Robinson Crusoe had to struggle to overcome the difficulties of living on an uninhabited island by himself, and relied upon the skills he had learned which were the product of an age-old struggle waged by previous generations against nature. As social beings, humans are dependent upon community life for survival. 1 Robinson Crusoe is the name of the hero of a novel by Daniel Defoe (1660-1731). An ingenious sailor shipwrecked on an uninhabited island, Crusoe lived there many years with no companions save his dog, a parrot, and finally his man Friday, a young native whom he rescues on a Friday from cannibals visiting the island. The story is supposed to be based upon the adventures of Alexander Selkirk, a Scot, who was a cast away on Juan Fernandez Island. In the animal world, humans are the least equipped physically to defend themselves against the natural elements and so rely on both cognitive skills and cooperative living. In short, living in society provides humans with certain degree of security against the dangers of the natural environment. Without this, life would be practically, if not entirely, impossible. When Dean Schizer of Columbia Law School said, in his graduation address of 2008, "I am convinced that if I had been born in prehistoric times, I would have been eaten by a saber-toothed tiger long ago" he was most probably referring to this fact. While it provides security for humans, life in society gives rise to a pressing need for order. Wherever humans have established units of social organization, they have also endeavored to prevent chaos and anarchy by establishing some sort of functional order. Any society, however rudimentary, will at least develop customary ways of carrying out social activities. If the human being was a solitary and isolated creature spending his/her life subject to natural conditions, there would be no need to discuss the role of order. Such a solitary being would be limited in his/her actions, living only by the laws of nature and by his/her instincts. No limitations of action or behaviour would be imposed upon him/her by any outside authority, except for the restrictions deriving from natural conditions. Such a person would, therefore, be viewed as being, in a sense, absolutely free from the social constraints that society imposes on its members. In social life, however, nobody is absolutely free. Each person is subject to both unwritten social rules and to written laws. Without some degree of regulation by means of legal institutions (laws, regulations, rules, customs, etc.), life in society would probably degenerate into chaos. At the very least we can state that having become dependent on rules and laws, the ability of humans to lead an orderly existence governed only by their instincts and desires has all but vanished, considering the many centuries of ordered communal living. Rules and order have permeated all facets of social life. Not only the official institutions such as the legislative and executive organs but associations, foundations, clubs, etc., all make rules and regulations governing the conduct of their members. And when humans come together to form political units, there are rules and regulations called laws. Society, by definition, requires order to regulate relations amongst its members. Unregulated social life would be chaos. Without some degree of order, society cannot serve its purpose and cannot provide security for its members. This is because order, generally speaking, is the condition in which everything is in its right place and functioning properly; to put it another way, it is the absence of disturbances and unruliness. As a legal concept, order is the body of laws, rules, regulations and customs that apply to the relations between the members of a certain society. When we speak of the legal (or social) order, we refer to the set of rules that regulates the conduct of the individuals who make up a society. Every individual is expected to comply with the prevailing rules of the society in which he or she lives. As a matter of fact, many rights and freedoms can be enjoyed by, and may be meaningful only for those who live in society. For example, freedom of thought, freedom of opinion and expression, the right to enjoy arts, etc., which are of particular moral value, make sense only for those living together. ### Chapter # 2 2. What limits and regulates most of the activities of individuals in a society is the legal order, in short, the law. Individuals are legally bound to obey the mandates of the law, and the pattern of their lives is set by the norms imposed by the law. If people lived in a state of complete isolation from one another, one man’s path never crossing another’s, there would be no need for law. In such a case, the need for a system regulating or guiding the relations of individuals would be absent. Living in a society, no matter how primitive, has always entailed subject- ing individuals to order. The individual members of a society are necessarily bound in their actions by the established order. The old Latin dictum "ubi soci- etas ibi jus" (wherever there is a society there is also law) expresses this truth. A society without order would merely be a source of anarchy and brutal force. Such a society cannot provide its members with security and simply could not survive. In a society where "homo homini lupus" (man is a wolf to man), no- body is secure. In short, some form of legal order, whether embodied in written rules or customary law, has always been an integral part of social life. The relationships to be regulated may vary from simple everyday activities to complex problems of economic life and political power. In sum, it is difficult to conceive of a society without a system of law. This, of course, does not mean that any existing (or past) system of law is perfect. On the contrary, many defects and shortcomings may be observed even in the most developed systems of law. The point here is that from the earliest be-2 cf. Article 27, Universal Declaration of Human Rights: "Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and ben-efits." ginnings of organized societies throughout the world, a system of law, however defective, incoherent or imperfect, has existed in every society. Below is quotation from my late friend and colleague Prof. Dr. Arif Payaslıoğlu that clearly elaborates this point: > "In times of social upheavals within or berween societies such as wars and rev- olutions or natural disasters such as earthquakes or floods the existing legal system may be seriously hampered or broken down. Yet, sooner or later it will either be reestablished or replaced by a new legal order. This legal order may be imposed from within a society as in the case of a successful revolution or from outside as in the case of a country conquered in a war; but it will be there one way or the other. For the complete lack of a working legal system in or among societies means endless conflicts and violence, anarchy and chaos which may result in the destruction of a society or some societies and perhaps of the mankind. It is for this reason that goverments and international organizations try to subject even wars and the production and use of highly destructive weap- ons to legal rules. > > A legal system may be thought, in its essence or in its parts, to be unjust, oppressive or impractical. Those who have such opinions may attempt to change a legal system even by resorting to force and violence. But whatever they do they may either be successful only to establish a new legal order or fail, and then be eliminated or punished in the name of the legal system against which they had fought. > > On the other hand a legal system may not or can not be fully enforced; there may be arbitrariness in its applications; some people may find ways to avoid or evade it; or that it may be demonsrated that it is a reflection of the so- cio-economic infrastructure; yet it does make itself felt one way or another. Some may wish or hope or predict that legal order, at least as a means of coer- cion should or will wither away; it seems, nevertheless, that it will be here to stay for generations to come. "3 ## SOCIAL ORDER ### Chapter # 2 In a broad sense, all rules or principles that regulate and limit the conduct of Individuals in a society may be called the law or legal order. This definition could imply that the law is synonymous with, or equivalent to, the word "or- der”. However, this is only partly true. A closer examination of the matter reveals that the social order is not merely composed of legal rules. In fact, law is only one of the parts that make up the social order. There exist other orders in society, alongside the legal order, such as the religious order and the moral order. The legal order (i.e. legal norms)¹ constitutes only one part of the "patterns of social conduct", i.e. the whole body of rules which regulate the actions of individuals in a society. Legal norms have certain characteristics that distinguish them from other rules of social conduct. However, before examining the characteristics peculiar to legal norms, we will briefly study the other orders of society. **1) MORAL ORDER** Perhaps the most important of the rules of social conduct, apart from the law, are moral rules. Moral rules are principles, or standards, concerning right or wrong conduct, which are also called ethics. Ethics define the principles, standards, and ideals which apply when judg- ing human conduct. These are known as moral judgments. Ethics is thus a "nor- 1 The term "norm" means, in general, a rule or authoritative standard. In legal terminology, it refers to legal rules. The Black’s Law Dictionary defines the “Norm” as "A model or standard accepted (volun- tarily or involuntarily) by society or other large group, against which society judges someone or some- thing". The nature of legal rules will be explained in Chapter Three. mative" science, i.e. it is concerned with norms and standards, with what ought to be, in contrast to the "positive" sciences, such as physics or chemistry, where the aim is to discover the facts and the laws governing these facts. In every society there exist certain general moral principles that are strongly and deeply held. People have always made distinctions between what is right and what is wrong, or between good and bad in human conduct. Moral im- plies that a person’s conduct or character is in conformity with the generally ac- cepted standards of goodness or rightness. The laws of ethics or morals prevailing in a society reflect the values which are embraced as desirable or ideal standards of human conduct in that society. Our daily experiences teach us that moral rules (such as to be honest and not to tell lies) are necessary in social life, although not always practised. Along- side the law, morals also constitute a social institution. > “When one speaks of the laws of ethics or morals, he is talking about what are regarded as the accepted, desirable or idealistic standards of human conduct. For example, ‘one ought always to be truthful’ or ‘a husband should be faithful to his wife’. Many of those standards contain an element of idealism; they are based in part on ‘ethical’ or ‘moral’ foundations (what is ‘good’); but organized society (government) does not undertake to enforce them (as laws of ethics). Their practical acceptance is left to public or group opinion and to organized groups interested in the standing and well-being of those groups. "2 **A) Relations Between Moral and Legal Rules** Law and ethics (moral rules) are related insofar as both are concerned with human conduct. There is a close relationship between moral and legal rules. Many legal rules are derived from morality. Actions such as murder, theft, defamation, mislead- ing publicity (advertisement) and the like are prohibited by both morals and law. To rescue a person injured in an accident, for example, is a moral duty; but it is also a legal duty under Article 98 of the Turkish Criminal Code (Türk Ceza Kanunu). Failure to provide such assistance would constitute a criminal of- fence punishable by imprisonment or a fine (para cezası). In some cases, the law makes direct reference to morals. One of the best examples of the relationship between morals and the law is Article 2 of the Turk- ish Civil Code (Türk Medeni Kanunu). This provision states: > “Every person is bound to exercise his rights and fulfill his obligations accord- ing to the principles of good faith (dürüstlük, objektif iyiniyet).”3 2 Gavit, B.C., Introduction to the Study of Law, (Brooklyn, 1951), p.2. 3 “Herkes, haklarını kullanırken ve borçlarını yerine getirirken dürüstlük kurallarına uymak zorundadır.” The Netherland's Civil Code has a similar but somewhat detailed provi- sion on the subject. Article 13 reads as follows: > The holder of a right may not exercise it to the extent that it is abused Instances of abuse of right are the exercise of a right with the sole intention of harming another or for a purpose other than that for which it was granted; or the exercise of a right where its holder could not reasonably have decided to exercise it, given the disproportion between the interest to exercise the right > > and harm caused thereby. The nature of the right can be such that it cannot be abused. Good faith is a general moral category, which requires that every person act truthfully in his/her relationships with others. This means that every person is expected to act as a reasonable, honest human being bound by moral princi- ples when exercising his/her rights and performing his/her duties. Thus, good faith, which is essentially a moral principle, has also been made a fundamental principle of law by the Civil Code. A moral rule may be converted into law when the legislative body enacts a piece of legislation incorporating it. An example of the moral rules expressly referred to by the law can be seen in Article 364 of the Civil Code (Swiss Civil Code, art. 328). This provision cod- ifies the moral rule requiring members of a family to assist and support each oth- er, thereby making it a legal rule as well. It reads as follows: > “Every person is bound to contribute towards the maintenance of their ascen- dants and descendants (üstsoy ve altsoy) in the direct line as well as of their brothers and sisters, where without such assistance they would become destitute.”4 The Code of Obligations (Borçlar Kanunu) also refers to good morals. According to Article 20 of this Code, contracts which are contrary to good mor- als are void, i.e. they have no legal effect. The validity of such a contract is not recognized by the law, and the parties to it are not protected by the law. The courts will refuse to enforce such a contract. 4 “Herkes, yardım etmediği takdirde yoksulluğa düşecek olan üstsoyu ve altsoyu ile kardeşlerine nafaka vermekle yükümlüdür.” It should be mentioned, however, that in contrast to the general moral rule, which requires providing assistance to everyone who is in need, the law limits this obligation to close Similarly, an heir who has seriously failed in the duties laid upon him by law towards the testator or the testator’s family may be disinherited by the testa- tor (Turkish Civil Code art 510/4; Swiss Civil Code art 477/2). It should be noted that a person who has killed or attempted to kill the de- ceased is disinherited by operation of law (Turkish Civil Code art 578/1, Swiss Civil Code, art 540/1). A good example indicating the concept of morals functioning as a legal in- strument can be seen in the Italian Civil Code, Article 34 of which provides: > “in no case can the laws and acts of a foreign state, the rules and acts of any institution or entity, or private provisions and agreements be effective within the territory of the (Italian) State, when they are contrary to public policy or morals.” Another example of a situation where a moral duty is turned into a legal obligation is Article 338 of the Turkish Civil Code, which provides that a spouse is required to take good care of his/her step-children. Contracts to bribe a judge or to testify falsely in court are void because they are contrary to good morals. The subject-matter of these contracts also con- stitutes criminal offences and so they are void not only because they are contrary to good morals but are contrary to the law as well. However, an immoral contract is not always a criminal one. There are contracts for the commission of acts, such as sexual acts deemed to be immor- al, which the law seeks to discourage, although not by criminal punishment. Instead, contracts of this kind are rendered void and thus invalid (unenforce- able). The invalidity extends to the entire contract, including the counter- promise of acts which may in and of themselves be legal, such as a promise of payment. For example: Ms. A and Mr. B enter into a contract under which Ms. A promises that she will have sexual intercourse with Mr. B if he buys her a pre- cious jewel. From a purely legal point of view, there is nothing to be said against 7 See "C) Law and Justice" infra, where "legal positivism" is discussed 8 The above example is a purely imaginary one. In real life, "contracts" of a similar nature are usually not made public. A news item carried by the international media in late June 2008 is one of the few ex- amples of a similar, if not identical, case: > “MIAMI-A struggling single mother and real estate agent is trying to sell her Florida home and find a husband at the same time. She’s auctioning off both her home and her love in a package deal. > > Single mother of two girls, ages 14 and 21, Deven Traboscia has been divorced for eight years. She had hoped to be remarried by now, so she is turning to the internet for help. The 42-year-old real estate agent, tired of struggling on her own, came up with a package deal to auction off her Palm Beach Gardens home and herself.” the mutually promised acts of Ms. A and Mr. B, because consensual sexual inter- course between an unmarried adult woman and man is not a crime under Turk- ish law. However, from the point of the prevailing moral values, such a contract would probably be considered contrary to good morals and would therefore have no legal effect, i.e. it would be void. In practice, this means that if Ms. A refuses to have sexual intercourse with Mr. B, he will have no legal recourse be- cause the law does not recognize the contract as binding. The law does not pro- tect Mr. B’s interest because such an interest is deemed to be contrary to good morals. Likewise, the same law will not protect the interest of Ms. A if Mr. B re- fuses to buy her the jewel in question. In some cases, the subject-matter of a contract may not be immoral, but if the contract’s objective is to achieve an immoral purpose, it will also be consid- ered void under the law. For example, if the subject-matter of a contract is the promise by one party not to participate in an auction in return for money, the promised act might not violate societal standards of good morals, but the law will render the contract void because of its immoral objective - rigging an auction. **B) Public and Private Morality** In examining this topic an important question arises: by what standards should moral acts or contracts be distinguished from immoral ones? Should objective standards of general (public) morality (general moral beliefs and values of a so- ciety) or subjective standards of private morality (i.e. the individual value judg- ments of the parties involved) apply? Moreover, in States composed of multiple cultures, which culture’s standards of morality should the law take as its basis and uphold? For example, in a South African murder case, a Zulu man killed a wom- an he believed to be an evil witch after she had threatened to kill him with witch- craft. He claimed in his defense that as a Zulu he genuinely believed that she would kill him with magic if he did not kill her first. Unfortunately for the defen- dant, the white judge rejected the individual belief of the Zulu man and imposed the law based on the morality of the dominant white group within the South Af- rican society, stating that: > The common law of South Africa in regard to murder and self-defense reflects the thinking of western civilization. Hence, in considering the unlawful- ness of the appellant’s conduct, his benighted belief in the blight of witchcraft > > 9 If a contract is "void" it does not legally exist. Therefore, the expression "void contract" is a contra diction in terms. However, the expression is used in order to indicate the distinction between "void" and "voidable" contracts > > See Chapter Three. cannot be regarded as reasonable. To hold otherwise would be to plunge the law backward into the Dark Ages. 10 There is often a conflict between private moral values and those of the community. For example, flirting or drinking alcohol may violate the private morality of a conservative individual but be acceptable under the moral values of the general community. Whether a contract is against good morals is usually decided according to the general standards of morality. The subjective moral values of the persons in- volved are not taken into account. For example, in certain sections of some societ- ies, the husband is under a traditional cultural moral obligation to punish the infi. delity of his wife by killing her. His failure to punish her act of adultery would be seen as an immoral act in itself. However, the killing of a wife for adultery is pun- ished as crime under most national laws, and the private morality of the particular group would not be recognized as an absolute defense. Perpetrators of so called "honor killing" crimes may be praised by other members of their family (community) because they believe that the victims had brought dishonor upon the family (community). **C) Law and Justice** The concept of justice, meaning the fair, correct outcome of a legal dispute, is at the core of the longstanding and popular view of the essence of law. "Law" and "Justice" may be regarded as close neighbours, justice meaning the proper and fair administration of laws. In many countries, the department of government that is in charge of the administration of the court system is called Ministry of Justice, 11 Legal rules are expected to achieve the ends of justice. In other words, the purpose of every law must be to uphold justice. However, there are instances where a particular legal rule is regarded as an unjust law by certain people while others praise it as the embodiment of justice. This is because it is not easy to state exactly what is justice or just treatment in a particular situation. The Greek philosopher Aristotle distinguished between distributive and corrective justice, with the former seeking to distribute the law equally amongst equals and the latter seeking to remedy any inequalities and secure fairness in the exchange of goods and the fulfillment of contractual obligations etc. Natu- 10 S. v Mokonto 1971 2 5A 319 (A). Citation taken from Kleyn D.; Viljoen F. Beginners Guide for Law Students (Second Ed.) p.15, (Juta & Co.) 1998. 11 In the USA the equivalent of "Minister of Justice" is the Attorney General who is a member of the Cab inet appointed by the President. He is the head of Justice Department. rally, this would apply to a system based on the tenet that everyone is equal be- fore the law, or as expressed by the well-known adage, the eyes of justice are blind. However, history is replete with legal systems which were based on in- equalities, particularly for women and people of colour. Nevertheless, after centuries of conflict we have arrived at a point in modern legal systems where slavery is prohibited and equality does, in principle at least, apply to women and to people of all colour and ethnic origins. In this connection, it would be appropriate to refer, briefly, to the relative- ly modern concept of "social justice" which aims to secure that all members of a society should have equal benefits and opportunities. For the advocates of social justice, declaring that all persons, irrespective of ethnic origin, gender, posses- sions, race, religion, etc., are to be treated equally and without prejudice is necessary but not sufficient. The State should create concrete conditions for the enjoyment of all the rights and possible benefits by all members of the society. For this end, legislation which provide better working and living conditions for the working people must be introduced and effectively implemented. The question as to whether law must embody justice has given rise to two separate jurisprudential views: legal positivism and natural law (sense of justice). Legal positivists take their view of the law from positive science. Law is studied on an objective and empirical basis. The question is not what the law ought to be, but rather what the law actually is. Only laws on the statute books and other written forms can be considered as law, since they have an empirical form. Consequently, according to this view, the function of a judge is somewhat mechanical: it is simply to apply the objective (enacted) law. The Latin motto: lus dicere non facere (judges speak the law; they do not create the law) permits only "strict" (textual or literal) interpretations of legal texts. 14 In contrast, the natural law view has a moral (or "natural justice") dimen- sion, in that it seeks to define the law not simply as it is (i.e. in its empirical form) but also how it ought to be, that is, in line with "morally" correct or just behav- iour. According to this view of the law, whatever positive law may provide, there is always a set of moral norms dictating human behaviour. Thus, if positive law is at odds with natural law (or sense of justice), the latter should serve as the ba- sis for resolving the conflict. 12 In fact, in the very society in which Aristotle lived, "slavery" existed and recognized as a social and le- gal "institution". 13 "No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms" (Article 4, Universal Declaration of Human Rights). "No one shall be held in slavery or servi tude" (Article 4/1, ECHR). 14 see infra. "Methods of Interpretation". A good example of the conflict berween the enacted law (de. the law on the statute books) and the natural law ("sense of justice") is a post-Second World War decision of a German court. In 1944, during the Nazi rule, a wom an who wished to get rid of her husband denounced him to the "Gestapo"15 insulting remarks he had made about Hitler's conduct of the War. The husband was tried and sentenced to death by a Nazi Court, but his sentence was converted to service as a soldier on Eastern (Russian) front. He eventually survived and for returned to Germany. After the war the wife was prosecuted for causing her husband's loss of liberty. Her defence was that the husband had committed an offense under a Nazi statute of 1934 which was the law on the books, then. However, the court hearing the case after the end of war convicted her on the ground that the stat- ute under which the husband had been punished offended the "sound conscience and sense of justice of all decent human beings" therefore it could not be regarded as "law". The famous American (US) case of Riggs v. Palmer (115 N.Y. 506) decid- ed in 1889 is another example signifying the contrast between the legal positiv- ism and natural law approaches. At issue was the division of the estate of a Mr. Francis Palmer between his daughters, Mrs. Riggs and Mrs. Preston, and his grandson, Elmer Palmer. Fran- cis Palmer had left a last will and testament that specified how his property was to be divided among those parties. Elmer Palmer desired his grandfather's wishes to be followed to the letter; but Mrs. Riggs and Mrs. Preston wanted the court to amend their father's will to exclude Elmer Palmer from inheriting any of their father’s property. Their rea- son for so requesting is that Elmer Palmer murdered his grandfather when he learned that Francis was planning to change his will so as to exclude Elmer from inheriting. In brief, the court was asked to decide on the following question: > Can a murderer inherit from the person whom he has murdered? At the time there was no statutory law preventing killers from inheriting from their victims. Judge Gray, in his dissenting opinion gave a good example of legal positiv- ism. He argued that the Criminal Law provided for the punishment of the murder and if the court denies Elmer's inheritance rights it would add significant further punishment to what murderer received under the statutory provisions of Criminal 15 Secret State Police (Geheime Staatspolize) of the Nazi regime, organized to operate against political opposition. Law. The dissenting judge opined that the court could not go beyond the literal in- terpretation and create new rules to obtain morally pleasing results. However, Judge Earl who wrote the majority opinion based his arguments on natural law. He reasoned that tenets of natural (or universal) law would be violated if the murderer is allowed to profit from his crime. He noted that on top of ordinary laws, there were fundamental maxims of the common law. No one shall be permitted to profit by his own fraud, or take advantage of his own wrong or to acquire property by his own crime. 16. These maxims and principles were dictated by public policy and had their foundation in universal law administered in all civilized countries. Therefore, Elmer should not inherit from his grandfather whom he had murdered. If the concepts of equality and freedom are tenets of natural law, a legal system whose positive law condones slavery cannot be upheld according to the principles of natural law. 17 The natural law view is at the heart of "civil disobe- dience" movements, such as the Civil Rights movement in the United States during the 1960s. The southern States of the USA had laws which envisaged different legal rights for blacks and whites, thereby violating the natural law te- net of equality for those who advocate the supremacy of natural law. Accord- ingly, for those who advocate the supremacy of natural law when the positive law violated the tenets of natural law, the legally correct action to take was to disobey the unjust positive law. Millions of people protested by violating these unjust laws of racial segregation. One of the first acts of civil disobedience was when Rosa Parks, a black woman, defied the segregation laws of Alabama requiring blacks to sit at the back of the bus. By choosing to sit at the front of the bus, she violated positive law. But could she be accused of having violated nat- ural law? Sometimes the line between what is right and what is wrong, even accord- ing to the tenets of natural law, is not so clear. For example, euthanasia has be- come one of the most controversial moral and legal issues of our time. The legal- moral question comes down to whether the protection of life is the moral duty of 16 "Nemo auditur propriam turpitudinem allegans" is a Civil Law maxim which may be translated into English as "no one can be heard (by a judge) to invoke his own turpitude (immorality or guilt)". For Civil Law see Chapter Six, "Legal Systems of the World". Under Turkish and Swiss Law a person who has intentionally and unlawfully caused or attempted the death of the deceased is held to be unworthy to take as heir or otherwise to benefit under a testamentary disposition (Turkish CC art. 578/1; Swiss CC art. 540/1). 17 In this connection it may be interesting to note that it was only after the Civil War that the US Congress passed, in 1865, the Thirteenth Amendment to the Constitution, abolishing slavery throughout the USA. the law, regardless of the quality of life, and of the person’s pain and suffering, or should the definition of life include what has been termed "life with dignity"? **D) Where Law and Morals Diverge** While the law often adopts and defines the ethical or moral standards of society, not all laws necessarily reflect "morality". Morality may be regarded as the bed. rock of law but it is not the law. That is, the nature of the rules of law and of morals can differ at times. Many areas of law, in fact, have no moral content whatsoever. Indeed, some legal rules may even diverge from accepted moral values. People sometimes commit acts of selfishness which are gravely injurious to others yet are not contrary to the law. For example, deceiving a boyfriend (or girlfriend) by telling lies about his/her past affairs or disappointing parents by en- gaging in acts not approved by them may be morally wrong but perfectly lawful, This leads us to consider the divergence between law and morals. Let us start with one or two simple examples indicating how law and morals, even if starting from similar premises, may nonetheless develop along different and sometimes contradictory lines. The law may discourage, condemn and even pun- ish sexual immorality in various forms. But it may also refrain from attaching le- gal consequences to some acts of immorality such as licensed prostitution, fornication or homosexual conduct between adults, as long as there is no element of violence. On the other hand, there are some legal rules which have no moral relevance at all. For example, according to Article 705 of the Turkish Civil Code (Swiss Civil Code Art 656), registration in the land registry is a prerequisite for acquiring ownership of land. This rule is of great importance from the legal and practical points of view but is of no moral significance. Unless it is duly complied with, however, no transfer of title can take effect. Another example of how moral values and legal norms may contradict each other is the "statutory period of limitation". There is a moral obligation to repay one’s debts when they are due. The law, however, excludes the right to sue on a contract if no action is brought within the prescribed period of time. The statutory limitation for an action in contract is 10 years, unless some other limi- tation period is expressly provided for (Code of Obligations, Article 145). The purpose of the statute of limitation is to prevent stale claims which, with the passage of time, may become difficult to prove because of loss of evi-18 It should be noted, however, that in certain cases (such a succession, execution for debt, a judgment of the court etc.) a person may acquire land before registration (Turkish Civil Code art 705, Swiss Civil Code art 656). dence, e.g. death or absence of witnesses or difficulties of recollection. These practical considerations, however, cannot justify the rule if the matter is viewed and evaluated from a purely ethical point of view. The major justifications for legal rules which appear to contradict or ig- nore moral rules include convenience, expediency and order for the sake of order. **E) Discussion Points** Discussing the following cases from the moral and legal point of view may lead to a better understanding of the issues in question. 1. Ms. A and Mr. B are not married but live together. Their neighbours want them out of the neighbourhood. 2. A and B are two students who take the same course of Introduction to Law. A does quite well in the examinations; B gets very poor grades. Faced with the threat of expulsion from school, B asks A to cheat and help him during the written examination. A promises to help but does not keep his promise in the examination room. B fails the examination. 3. A doctor shortens the life of an incurably ill patient at the patient’s request. 4. Can a murderer inherit from the person whom he has murdered? 5. A person who has borrowed a knife from a friend refuses to return it on request because he has good reason to suspect that his friend in tends to use it to commit a violent assault against another person. 6. The owner of a restaurant refuses to give meals to a starving person because he is unable to pay. 7. Below are the opposing opinions of the two eminent jurists on the Ger- man Court’s decision referred to at supra p. 14. >What is your considerations on these opinions: > >“H.L.A. Hart, Professor of Jurisprudence at Oxford, contended that the decision of the court, and similar cases pursuant to it, was wrong, because the Nazi law of 1934 was a formally valid law. > >Professor Lon Fuller of Harvard Law School, on the other hand, argued that, since Nazi ‘law’ deviated so significantly from morality, it failed to qualify as law. He therefore defended the court’s decision, though both jurists express their preference for the enactment of retroactive legislation under which the woman could have been prosecuted. > >19 Wacks, Raymond; Law- A Very Short Introduction, Oxford, 2008,p.69 ## (RELIGIOUS ORDER ### A) Introduction