Introduction to Law Dersi 1. Ünite Özet

Introduction

After analyzing the concept of law and its functions the chapter shall provide information about the most important living legal traditions in the world. What the common law and civil traditions are and how they evolved will be one of the main themes of the chapter. After introducing roots and basic concepts of these traditions, the chapter will provide you information about principle sources of law and the means by which laws are made.

What Is Law?

Law regulates virtually every aspect of our lives, from the cradle to the grave, though we may not always be aware of this fact. The legal system lies at the heart of any society since it regulates the conduct of almost every social, political and economic activity. Depending on the complexity of a given society and its economic advancement, regulatory scope of law expands. By regulating our relations with other members of the society such as marriage in family law, school life in administrative law, or our life as a consumer in consumer protection law, the legal system seeks to uphold certain values such as justice, freedom, security and the like.

The concept of law can be defined as “law is a set of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the courts.” This positivist definition is not the only definition of law of course; there are a lot of definitions which underline different specialties of concept of law.

Law is a body of rules. These rules, in other words, legal norms have varieties: Prescriptive norms, procedural norms and definition norms. Generally, a law norm contains a definition and a sanction. Sanction means to be penalized for who doesn’t follow the rule. A typical sanction in a civil case is compensation. In a criminal case sanction is usually imprisonment or less likely, penalty fine. Another type of sanction is nullity. Nullity is cancellation of the legal act and then that act becomes simply never done. After that it is seen like never happened.

Legal rules, as shown above, often tells us what we ought or ought not to do. This “ought” form of command is said to be normative. A normative statement lays down standards of behaviour to which we ought to conform if we are the addressee of a particular norm in a particular situation. Thus, the rule (the ought-type normative formulation) “car is not to be driven while under the influence of alcohol” affects a person if he is driving a car while drunken. The rules as normative statements, therefore, tell what ought to happen (do not kill!), a factual statement, on the other hand, tell us what does happen (someone is killed). Most of the legal profession deals with the question that what type of ‘ought-type” statement would conform to a particular ‘is”-type situation or vice versa. Thus, a legal rule is a statement of what may, must or must not be done.

From our analysis so far characteristics of law in a developed system could be identified as follows:

• Law is a system or set of rules. These rules are general, universally applicable to all cases that are within the confines of a particular rule; and finally, legal rules are predictable.
• Legal rules are binding
• Collective enforcement of law is ensured by an authority, say, police or court;
• Depending on the legal tradition laws man made either by the legislature or judges or both.

The Functions of Law

There are many significant functions of law, such as:

• Preserving order
• Achieving justice
• Protecting rights
• Imposing duties
• Establishing a framework for the conducts
• Promoting freedom
• Upholding the rule of law
• Protecting security
• Resolving disputes

One can add protection of property and protection of wellbeing of the community to the above list. Of these functions of law, our focus will be the main functions of law, that is, order and justice. In achieving these goals and preserving order, law should be enabled to fulfil its tasks. The main task of law is to enforce its precepts which vary according to particularities of the regulated area of life.

Law makes order. Law provides the security and selfdetermination to the members of society. Law creates a possibility for a peaceable ordering of the external relations of men and their communities to each other. Law’s primary function is the realization of legal ideas prescribed in a state through commanding what is right and prohibiting what is wrong. A legal system provides remedies if the precepts of the legal system are not followed or broken. Law imposes a restraint on our liberty in order to guarantee a peaceful order among the members of society. This is the first function of law, i.e. establishment and preservation of order in a society.

Law makes justice. in the modern constitutions justice regarded as one of the main functions of a government. it is not an easy to task to define what justice is. Justice is not synonymous with law. It is, therefore, possible for a law to be called unjust. In general terms, justice is regarded as a moral ideal that law seeks to uphold, and it is a challenging task ascertaining what is just and unjust in a particular situation. It is, therefore, no surprise that since Ancient Greek until today philosophers have developed and envisaged theories of justice. The main questions in this field are: What is justice? How is it to be secured? Is there a necessary connection between justice and law? It needs to be stressed that the subject of justice is an extraordinarily large one.

Justice requires in this sense that similar cases should be treated alike, which means not only Salih but others who have committed or would commit such acts should be punished as well. The Prophet of Islam, Muhammad, for instance, said, ‘verily, those who came before you destroyed because when a noble person from among them was found guilty of theft, they would pass no sentence on him’. So, justice requires a consistent and uniform application: “Treat like cases alike!”

Legal Traditions

Law is, as shown above, a response to felt need for justice and order in any given society. Since the dawn of history, mankind has developed order of things either through unwritten customs or as in the example of the Roman law through a complex system of codes that achieved a condition of considerable sophistication. Law as in the form of general codes first appeared around 3000 BC. Before the written law, laws were in the form of customary law. One can classify the law of this era into two:

• Jus non scriptum (unwritten law)
• Jus scriptum (written law)

In the contemporary world, there are two quite influential legal traditions in the western world that export their laws to other countries, which are in turn under the influence of these traditions. These traditions are civil law and common law. The dominance of said traditions both of which are of European origin is the direct outcome of European imperialism in earlier centuries. A legal tradition, as described by Merrymen and Perez-Perdomo, is: “a set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in the society and the polity, about the proper organization and operation of a legal system, and about the way law is or should be made, applied, studied, perfected, and taught. Of these traditions the civil law tradition is the older and the more widely distributed, and its roots could be traced back to the publication of the Twelve Tables in Rome in 450 B.C. The twelve tables are the earliest written legislation of ancient Roman law. Tables were written by 10 commissioners and later supplemented by two additional tables at around 451-460 B.C.

Western legal traditions dominate, to a large extent, the current legal systems in the world.

Civil law: Despite wide variety of sub-traditions the civil law tradition has but one initial source: the Roman law. Unquestionably, current state of European legal systems could be called Romanist systems, since these legal systems owe most of their legal institutes to the re-study of the law of Romans by jurists first in Bologna, Italy, and then all over the Europe from the eleventh century onwards.

Common law: Unlike the civil law tradition, law of England, home of the common law, was not influenced by the reception of Roman law. Development of this tradition was led by the judges, who were the creator of the case law. The phrase common law has a different variety of meanings. The term originally meant the law that was common to the whole of England. Common law is also a synonym for case law meaning the law that is not the result of legislation, that is, the law created by the decisions of the judges. A third meaning of the term common law is the law that is not equity that reveals the dual system of this legal tradition. The common law as a case law, is based on the principle of precedent. A binding precedent is a past decision in a legal case which is used as an authority for reaching the same decision in subsequent similar cases. The precedents are recorded in a law report which is a collection of case law known as yearbook or reports. In this sense, case law is the law that comes from the decisions of courts as opposed to legislation-a judge-made law as opposed to the law created by legislature. One can identify the basic characteristics of the traditional common law in following terms:

• It is uncodified;
• It is largely based on precedent and case law;
• It is developed from customs and decisions made by judges;
• It is not made by Parliament.

Religious law: Contemporary common and civil law systems are, to a greater extent, secular traditions based on the tradition and human reasoning. Yet, this does not mean that these traditions have completely divorced from their religious roots. As aptly put by Wacks: “No legal system can be properly understood without investigating its religious roots. These roots are often both deep and durable. Both in the common and civil law traditions, one can detect the traces of ecclesiastical law. It needs to be emphasized that the Roman Catholic Church has the longest, unbroken legal system in the western world. Thus being so, separation of church and state, in shape or another, is one of the hallmarks of western legal tradition. Religious law is a term of art which is employed to denote a legal system based upon or inspired by a particular religion. Major religious legal traditions of the world are:

• Islamic Law (Sharia Law)
• Canon Law
• Jewish Law (Talmudic Law)
• Hindu Law

The Sources of Law: Where Does Law Come From?

The question of where the law comes from could be answered with reference to legal tradition, and, in particular, the legal system we are dealing with. In football, for instance, laws of the game are the primary sources of law. In any legal system, there are sets of recognized sources of law. A lawyer should base his arguments on recognized sources if he wants to win his case. If a judge asks a lawyer “to support his proposition”, the lawyer in a common law system is very likely to cite either a previous decision of a court or a statute. A civil lawyer will refer to an article of a code in support of his argument. Although he may also cite a court decision, it will not have the same weight as it has in a common law jurisdiction. All in all, courts in the civil law systems derive from the direct interpretation of the law; courts in common law system give greater authority to legal precedent. As these examples illustrate, every legal system has its own recognized sources. That said, sources of law are more or less similar in most legal systems.

Turkish legal system is also based on the structure of a hierarchy of norms: The sources of law of Turkish law ordered in such a way from top to down may be listed as follows:

• The Constitution
• Statutes
• International treaties
• Decrees with the effect of law
• Regulations
• By-laws
• Customary law
• Judicial decisions

Law and Morality

Law is not the only normative system we have. Morality, etiquette and manners regulate and shape our behaviour as well. Moreover, in the historical development of law, the stage of customary law was identical with morality. In other words, law and morality were one and the same thing. Yet, history witnessed the separation of laws and morals. They still converge in some respects and diverge in others. Today, unlike morality, enforcement of legal norms is backed by the state power that possesses the resources to compel compliance. Spitting on the ground or telling lies to others can be condemned, but disobeying such rules often brings no sanctions whatsoever. That said, many rules in law converge with moral norms. For example, the moral prohibition “Do not kill!” is also prohibited and enforced under criminal law, which amounts to a very serious offence in any legal system. Likewise, damaging or destroying property of the other are prohibited under both legal and moral norms. However, unlike morality, law attaches a legal obligation to compensate the damage caused by the destruction. Indeed, it is a fact that the development of legal systems had been powerfully influenced by moral opinion, and in most cases, the content of many legal rules mirrored moral rules or principles.