Lecture Notes On Public and Private Law PDF

PUBLIC LAW-PRIVATE LAW-TURKISH LAW SYSTEM In the Turkish legal system, the law is divided into two primary branches: Public Law and Private Law. This distinction is fundamental because Turkey follows the Continental European Legal System (also known as the Civil Law system), which is largely...

PUBLIC LAW-PRIVATE LAW-TURKISH LAW SYSTEM In the Turkish legal system, the law is divided into two primary branches: Public Law and Private Law. This distinction is fundamental because Turkey follows the Continental European Legal System (also known as the Civil Law system), which is largely influenced by Roman Law traditions. Understanding this division helps to navigate the structure and sources of law in Turkey. Law is fundamentally divided into public law and private law. This distinction is based on Roman law. According to the Roman jurist Ulpianus, the law concerning the structure of the state is called public law (jus publicum), and the law concerning the interests of individuals is called private law (jus privatum). This distinction is mainly used in countries that adopt the Continental European legal system, while there is no such distinction in countries that follow the Anglo- Saxon legal system. Sources of Turkish Law In the Turkish legal system, the law is divided into two primary branches: Public Law and Private Law. This distinction is fundamental because Turkey follows the Continental European Legal System (also known as the Civil Law system), which is largely influenced by Roman Law traditions. Understanding this division helps to navigate the structure and sources of law in Turkey. PRIVATE LAW Private law, on the other hand, regulates relationships between private individuals or entities. It is based on the principle of equality and freedom of will. Neither party in a private law matter holds a superior position. Examples of private law include: Civil Law, which governs personal relationships, property ownership, contracts, and family matters. Commercial Law, which deals with the conduct of businesses and commerce. Inheritance Law, which defines how assets are distributed after someone’s death. In private law disputes, the state plays a neutral role, typically through the courts, and focuses on resolving conflicts and protecting individual rights. PRIVATE LAW (JUS PRIVATUM) Private law rules generally regulate the relationships between individuals based on the principles of equality and freedom of will. In a private law relationship, one party cannot "command" the other. Private law, on the other hand, is focused on relationships between individuals. It deals 1 with the legal interactions and disputes that arise between private citizens or entities, rather than between individuals and the state. The purpose of private law is to protect individual interests, such as property rights, contractual obligations, and personal relationships. Examples of private law include: o Civil law, which governs issues like contracts, property disputes, and family law matters. o Commercial law, which regulates business transactions and commercial entities. o Law of Obligations/ Tort law, Law of Obligations is a branch of private law and primarily regulates debt relationships between individuals. The law of obligations covers relationships in which one party (the debtor) is obligated to perform a specific act for the other party (the creditor). This act (performance) may involve giving something, doing something, or refraining from doing something. In private law, equality is a fundamental principle. Both parties in a legal dispute are considered equals, and the role of the court is to resolve conflicts impartially. Unlike public law, where the state often has authority over individuals, private law assumes that individuals are free and capable of managing their affairs. The state’s role here is more limited to providing the legal framework within which individuals can settle their disputes. PUBLIC LAW Public Law It is the totality of the rules of law regulating the organization of a state, the relations between a state and another state and between a state and individuals. It is the totality of the rules of law regulating the organization of a state, the relations between a state and another state and between a state and individuals. There is a presumption that the actions of the state are in accordance with the law. The state can unilaterally execute its decisions ex officio. The source of powers is based on the state's pursuit of "public interest". The state can unilaterally execute its decisions ex officio. The source of powers is based on the state's pursuit of "public interest". (Ex officio is a Latin term that means "by virtue of one's office" or "in an official capacity." In law, it refers to the authority of a person or institution to carry out a specific duty directly, based on their official position, without needing additional approval or permission. In other words, the state can make certain decisions or take actions within its authority, without any external interference.) In other words, the state can make certain decisions or take actions within its authority, without any external interference. Public Law (Jus Publicum) Public law governs the relationships between the state and individuals, as well as the organization and functioning of the state itself. In this branch, the state acts with authority over individuals. Some key areas under public law include: Constitutional Law, which defines the structure of the government and the rights of individuals. 2  Criminal Law, which deals with offenses against the state or public order and prescribes penalties for crimes. Administrative Law, which regulates the functioning of public administration and its interactions with citizens. The state, in public law matters, has a superior position, and the focus is on maintaining public order and ensuring that the government operates within its legal limits. Public law concerns matters that affect the state and its structure. This means it deals with the organization and functioning of governmental bodies and the relationships between the state and individuals. Essentially, it is the legal framework that governs how the state operates and enforces laws. The primary aim of public law is to protect the interests of society and ensure that the state acts within its powers and upholds justice. In public law, the state typically has a dominant position, and its role is to impose order and enforce rules that apply to everyone equally. Why is this distinction important? The separation between public and private law is crucial because it helps to determine how laws are applied and who is responsible for enforcing them. This distinction between public and private law is most commonly found in legal systems based on Continental European law (such as the legal systems of France, Germany, and Turkey). In contrast, Anglo-Saxon or Common Law systems (like those in the United States or the United Kingdom) do not emphasize this division as much, and the lines between public and private law may not be as clearly defined. This system is based on English law traditions. It focuses on judge-made decisions, known as "common law," rather than written laws. In this system, court decisions are very important. It is more flexible and less predictable than the Continental system. Countries that have adopted the Anglo-Saxon (Common Law) legal system generally follow legal systems based on English law. These countries have either been historically influenced by England or were former British colonies. Some of these countries are: 1. United Kingdom (England, Wales, and Northern Ireland) 2. United States (except for the state of Louisiana, which is influenced by French civil law) 3. Canada (except for the province of Québec, which is influenced by French civil law) 4. Australia 5. New Zealand 6. India (blended with Hindu and Muslim laws in some areas) 3  7. Pakistan (applied alongside Islamic law) 8. South Africa (a mix of Common Law and Roman-Dutch law) 9. Ireland 10. Hong Kong (separate from China) 11. Malaysia 12. Singapore In these countries, court precedents are highly significant, and the legal system evolves through judicial decisions rather than relying primarily on written laws. In the Anglo-Saxon legal system, the decisions of judges set precedents for future cases and thus shape how the law is applied. The Turkish Constitution (1982) The Turkish Constitution is the highest legal document in the Turkish legal system and sits at the top of the hierarchy of norms (Article 11 of the Constitution). This means that all other laws and regulations must comply with the Constitution. Turkey prefers a written and rigid constitution, meaning it is a formal document that is not easily amended. The rigidity ensures stability and consistency in the legal system by making constitutional changes more difficult. Principal Constituent Power The constitution can be understood as a set of fundamental rules that govern how state power is created and exercised. This is known as the principal constituent power, which refers to the authority responsible for establishing the constitution and shaping the political and legal framework of the state. The constitution defines the state’s structure and regulates how power is distributed and used within the state. Main Subjects of Regulation The Constitution of Turkey covers several core areas: 1. Basic qualities of the state and its form of organization: This includes defining Turkey as a democratic, secular, social state governed by the rule of law, and its form as a republic. 2. State-individual relations, rights, and freedoms: It establishes the rights and freedoms of individuals and regulates the relationship between the state and its citizens. These rights include fundamental human rights like freedom of speech, freedom of religion, and the right to a fair trial. 3. Functions of the state: The constitution outlines the three basic functions of the state: o Legislative: The creation of laws, typically carried out by the parliament. 4  o Executive: The implementation of laws, managed by the president, government, and state agencies. o Judiciary: The interpretation and enforcement of laws, handled by courts and judges. 4. Organs of state power, their powers and duties, and relations between them: The constitution sets out how the legislative, executive, and judicial branches are organized, their respective powers, and how they interact with each other. It establishes the system of checks and balances to ensure that no branch of government becomes too powerful. Public Law and Relations The constitution also plays a key role in defining public law, which governs the relationship between the state and individuals or between the state and other states. Public law includes constitutional law, administrative law, and criminal law. For a relationship between the state and an individual to be governed by public law, the state must be exercising its public power. This means that the state uses its authority to enforce laws or impose regulations, reflecting its superior position over individuals in legal matters. https://www.anayasa.gov.tr/media/7258/anayasa_eng.pdf 5