Introduction to Law Dersi 2. Ünite Sorularla Öğrenelim

What has been the role of Western Universities in law?

In Western Europe, the autonomy of legal thought was maintained by the universities. As put forth by Berman: “The legal method which was taught in the European universities was one which made possible the construction of legal systems out of preexisting diverse and contradictory customs and laws. The techniques of harmonizing contradictions, coupled with the belief in an ideal body of law -an integrated structure of legal principles- made it possible to being to synthesize canon law and then feudal law, urban law, commercial law, and royal law.

What are the components of judicial syllogism?

Major Premise(Legal Rule)  - The legal rule (in most cases a conditional sentence)

Minor Premise (Facts) - Facts of a case that fits to the definition or conditions contained in the legal rule

Conclusion(Legal Judgment) - The consequences designated by the rule now apply

Here's an example;

Majority is attained by reaching the age of eighteen years (legal rule, major premise)
`A` has completed his eighteenth year (fact,minor premise)
Therefore, `A` has attained majority (judgment, conclusion).

What is the use of legal analogy?

The logical form of an analogy proceeds as follows:

(1) A (the source) has characteristics p, q, and r;
(2) B (the target) has characteristics p, q, and r;
(3 A has characteristics s;
(4) Therefore, B has characteristic s.

Analogy is an extension of the scope of a norm to be applied. Yet the purpose of a statute may sometimes prohibit analogical reasoning. In such cases, the argument of reduction may come into play, which is called teleological reduction. The other most important argument types related to analogy are:
• argumenta e contrario
• argumenta a fortiori
• argumenta a minore ad maius
• argumenta a maiore ad minus

What is the main difference between the American approach and the civil law approach?

Stolker describes: “the American approach as bottom-up: by endlessly varying the details of the case, students are forced into the role of the attorney. By contrast, the civil law approach is more top-down: law students invariably start with the codes, supplemented with cases and the doctrine. And though in the course of time civil law and common law legal education have started to overlap in many aspects, this pedagogical difference between the two remains relatively prominent.

What is systematic interpretation?

Systematic interpretation looks at the context of a norm; hence, it involves an investigation into the relations between the norm to be applied and other relevant norms and codes of the same legal system. This mode of interpretation serves the interests of consistency and coherence of the legal system as a whole. The systematic interpretation is a significant canon of construction in the civil law tradition.

How should cases be decided as per the doctrine of precedent?

The doctrine of precedent means that cases must be decided the same way when their material facts are the same. To be sure, this does not require that all the facts should be the same. Rather, it requires that the legally material facts must be the same. Two
elementary components of a system of precedent are as follows:
• According to the rule of stare decisis, lower courts must follow the decisions of higher courts in the same court hierarchy. Some courts are even bound by their own previous decisions (rationes).
• A reliable system of case reporting is necessary, enabling judges and lawyers to find out a precedent correctly.

How are cases handled in civilian tradition?

In civilian tradition, jurists looks at codes in which the abstract norms are contained. When faced with a case, the typical reasoning of a civilian jurist would be mostly deductive. He will first identify the likely applicable rule or rules, then check whether their conditions of application are met, and finally announce the results the application of rules gives.

What are the characteristics of a good jurist?

• A sense of justice;
• Judgmental reticence;
• Feeling for and interest in the social and ethical dimensions of law;
• Sympathy for people and their behaviors;
• Empathy;
• Objectivity

• A sense of the different characteristics of the
various fields of law and their roles in the
state
• Courage to ask and answer questions.

Why does Steiner suggest that the deductive method is to have the best ability to settle legal issues conclusively?

As described by an eminent legal scholar:
A higher civil servant with academic training, sits in his cell, armed only with a thinking machine, certainly one of the finest kinds. The cell’s only furnishing is a green table on which the State Code lies before him. Present him with any kind of situation, real or imaginary, and with the help of pure logical operations and a secret technique understood by only him, he is, as is demanded by his duty, able to deduce the decision in the legal code predetermined by the legislature with absolute precision.

What is conflict of rules?

Sometimes legal norms within a legal system may conflict with one another. Indeed, if there are several bodies that enact legislation that can apply to the same case, this would lead to, in some cases, to the conflict of rules. In this regard, the following solutions should be considered:
• One of the conflicting norms could be altered;
• An exception could be added;
• One of the conflicting norms could be invalidated.

How is law defined as a science?

There are, indeed, numerous views with respect to the nature of law.

A science should process through systematization. Legal science is thus defined as systematic thinking about actual law (legal dogmatic), encompassing every occupation with the law, including its making, application, exposition, and transmission.

What is Aristotelian logic?

The logical form the syllogism rests on is a process of inferring from two given premises, a further proposition, i.e. the conclusion. The truth of the conclusion is believed to follow from the previous two premises. 

All men are mortal (major premise)
Socrates is a man (minor premise)
Therefore, Socrates is mortal. (conclusion)

What are the functions of legal methodology as outlined by Seiner?

Rationality
Certainty
Justification
Guidance

How are cases usually resolved in common law traditions?

Common law traditions look for similar cases in resolving the legal dispute at hand. A case, according to this tradition, should typically be resolved not by applying a general rule. In his reasoning, a common lawyer rather searches for  the solution reached in previous and similar cases. Inevitably, the emphasis is here laid on the issue of distinguishing cases from one another, that is, determining when the facts at hand are different enough from those of a previous case in order to indicate that the resolution of the latter case is not to be applied.

What is judicial syllogism?

A typical judgment in a legal system based on civil law tradition is a logical deduction or series of logical deductions drawn from pre-existing premises. Deduction means reasoning that moves from general premises, which are known or presumed to be known, to certain conclusions. Induction, by contrast, is reasoning that moves from specific cases to more general, but uncertain, conclusions. The method of finding law based upon deductive reasoning, thus, means subsuming a case under a legal rule. It is called syllogism or, in French legal literature, syllogisme judiciare.

What is interpretation of statutes?

Interpretation is the process of clarifying the true meaning of a written document.43 As a result of interpretation, the interpreter shall decide whether the rule in consideration is applicable to the case at hand. To be sure, interpretation is not confined to statutes; other written texts such as case law, contracts, testaments, or international treaties require interpretation as well.

What are some basic issues pertaining to interpretation?

In challenging cases, a solution to the problem at hand cannot simply be found in the mere wording of a statute by applying the rules of logic and of legal methodology. Policy considerations and value judgments are also required which are reflections of moral values immanent in a legal system.

Read the following simple statutory rule: “No vehicles are permitted in the
park.” It can be safely interpreted that cars or motorbikes are not allowed in the park, yet, we cannot be completely sure whether a lawnmower is considered a vehicle in this case.

What is the importance of  interpretative practice by courts?

Interpretation in law is one of the most important tasks of jurists, especially in a legal system which is characterized by codifications. A sound and reasonable interpretative practice by courts is highly important in maintaining the consistency and coherence of a legal system. Particularly, if one considers the necessity of adapting codes and statutes in a codified system to rapid social transformation, it would be ill-advised to stick to a strict construction of meaning of code provisions.

What are canons of construction?

In solving problems, legal systems have developed the so-called canons of construction, which are the most important means of interpretation. Although they might be named differently in various legal systems in the civil law tradition, major canons of construction are;

Canons of Construction (Methods of Interpretation) in Civil Law Tradition
Textual (Literal) Interpretation
Historical Interpretation
Systematic Interpretation
Teleological Interpretation

Canons of Construction in Common Law Tradition
The Literal Rule
The Golden Rule
The Mischief Rule

How are the interpretation of contracts different than the interpretation of statutes?

In many respects, the interpretation of contracts resembles to that of statutes. However, there some aspects of interpretation that are peculiar to the contracts. For example, when interpreting wills, the interpreter must give effect, as far as possible, to the testator’s intention expressed in the will. Otherwise, canons of construction employed in the interpretation of contracts and statutes are pretty much similar.

What is textual(literal) interpretation?

Literal interpretation, also known as grammatical or semiotic interpretation, requires an investigation into the semantic content and the syntactic structure of a provision. The literal interpretation may at first sight seem simple. The basic rule of literal interpretation is that the literal meaning shall prevail whenever the words of a statute are clear and unambiguous and addresses the point at issue.

What is purposive interpretation(the golden rule)?

There are two versions of this canon, namely, the subjective-teleological and the objective-teleological interpretation;

• Subjective-teleological interpretation: This form of teleological interpretation is an inquiry into the actual intention of the legislator, which is, therefore, a variation of historical interpretation.
• Objective-teleological interpretation: This form of teleological interpretation requires an inquiry with respect to the sense and purpose of the norm to be applied. It is about the reasonable goals and policy considerations behind the norm to be applied.74 It is about ratio legis of the norm. The ratio or telos is actually the reason for the being of any norm.

What are the exemptions to the doctrine of precedent?

There are two exemptions to the doctrine of precedent each of which involves the use of  tools of legal reasoning:
• Distinguishing: Distinguishing enables a court not to follow a binding precedent. If a judge finds that the facts of the case he is dealing with are very similar to those of the precedent while at the same time thinking that there is a material difference between the two, he may distinguish the precedent.
• Overruling: A judge can also overrule a decision of a lower court, if he thinks that the lower court has wrongly decided.

What is historical (genetic) interpretation?

Historical (genetic) interpretation is an inquiry into the meaning of legal terms as intended by the historical legislator. This method requires an investigation into the purposes the legislator pursued by enacting the statute. Historical interpretation is about the legislator’s actual intention.

What are the guiding principles employed in interpreting contracts?

• Acontractwill be construed so far as possible in such a manner as not to permit one party to it take advantage of his wrong.
• Where the words of a contract are capable of two meanings, one of which is lawful and the other unlawful, the former construction should be preferred.
• The expression of a term which the law implies as a necessary part of the contract has no greater effect than the implied term would have had.
• The ejusdem generis rule: If it is found that things described by particular words have some common characteristic which constitutes them as genus, the general words which follow them ought to be limited to things of that genus.