Key Concepts in Legal Studies PDF

# Key Concepts in Legal Studies ## 1. Hans Kelsen Hans Kelsen was an Austrian legal theorist known for developing the Pure Theory of Law which separates law from other social sciences, emphasizing that law should be studied objectively without reference to morality or sociology. Kelsen argued that...

# Key Concepts in Legal Studies ## 1. Hans Kelsen Hans Kelsen was an Austrian legal theorist known for developing the Pure Theory of Law which separates law from other social sciences, emphasizing that law should be studied objectively without reference to morality or sociology. Kelsen argued that a legal system is based on a *Grundnorm* (fundamental norm) providing authority to the entire legal structure. ## 2. Natural Law Natural law is a philosophical theory that posits the existence of certain laws of nature that are inherent and universal. It suggests that laws should be based on morality and justice, grounded in reason and discoverable by human nature. This concept is contrasted with positive law, which is created by governments and enforced by authority. ## 3. Mandatory Legal Rules and Authority of Legal Rules Mandatory legal rules are laws that must be followed without exception (e.g., criminal law). They establish the authority of legal rules, requiring citizens to act in certain ways. Authority here implies that rules are binding due to their official source (e.g., government, constitution) and must be obeyed. ## 4. Norms In law, norms are standards of behavior that are accepted as part of the legal order. They can be binding (legal norms, backed by sanctions) or social expectations (informal norms). Legal norms are fundamental to the structure of legal systems, shaping acceptable behavior and maintaining order. ## 5. Common Law Common law is a legal system primarily used in the UK, the US, and other former British colonies. It's based on precedents set by judicial decisions, meaning that past rulings by courts influence future cases. This system relies heavily on judge-made law and contrasts with civil law systems that rely more on codified statutes. ## 6. Source of Turkish Law Turkish law draws from several sources: - **The Constitution** The highest law of the land. - **Legislation** Laws passed by the Grand National Assembly of Turkey. - **Customary Law** Traditions and customs recognized by the legal system. - **Case Law (precedents)** Decisions from higher courts that guide future rulings. - **Doctrine** Academic writings, though not legally binding, can influence judges. ## 7. Private Law vs. Public Law Distinction - **Private Law** Governs relationships between individuals, such as contracts, property, family law, etc. - **Public Law** Deals with issues between individuals and the state or government, like constitutional, administrative, and criminal law. This distinction helps organize legal principles and processes. ## 8. Jurisprudence and Doctrines (Not Binding) Jurisprudence is the study and theoretical analysis of law, aiming to understand the nature, sources, and purpose of laws. Doctrines refer to academic and theoretical writings on law. While they're not binding like laws or court decisions, they often influence legal reasoning and interpretations. ## 9. Common Law vs. Civil Law Distinction - **Common Law** Relies on case law where judges' decisions in previous cases create precedents. - **Civil Law** Is based on comprehensive statutes and legal codes. Judges in civil law systems apply written laws to cases with less emphasis on previous rulings. ## 10. Customary Law (Three Features) Customary law is unwritten law that arises from long-standing practices. Its main features are: - **Continuity** The practice has been followed consistently over time. - **Ancient** The practice has deep historical roots. - **Common Belief** The practice is generally accepted and viewed as binding by the community. These topics are foundational concepts in legal studies and can provide a framework for understanding different legal systems and their principles. Let me know if you'd like to delve into any topic further! ## Presidential Decrees in Turkey A presidential decree is an official order issued by a president, particularly in systems where the president holds executive authority. It is a powerful tool used to regulate or organize matters within the president's legal purview, bypassing the usual legislative process. In Turkey, presidential decrees became prominent after the 2017 constitutional referendum which expanded the powers of the president significantly, allowing them to issue decrees with the force of law on executive matters. Here are key points: 1. **Scope of Authority:** The president can issue decrees on matters that fall within the executive branch's authority, such as administrative organization, public appointments, and executive actions. 2. **Limits of Decrees:** Presidential decrees cannot regulate areas where the Turkish Constitution specifies that legislation is required such as fundamental rights and freedoms or areas already covered by law. If a law is already in place, a presidential decree cannot contradict it; laws passed by parliament take precedence over decrees. 3. **Judicial Review:** The Constitutional Court of Turkey has the power to review presidential decrees to ensure they comply with the constitution. If a decree is deemed unconstitutional, it can be annulled. 4. **Relation to Parliamentary Legislation:** If parliament passes a law in a domain covered by a presidential decree, the decree is automatically overridden by the new legislation. Parliament still retains the power to legislate on all issues, so a presidential decree does not eliminate the need for parliamentary oversight. Presidential decrees streamline the ability of the executive branch to act quickly in governance but are balanced by constitutional limitations and parliamentary authority to prevent overreach.