Sources Of Turkish Law
Legislation in Turkey based on Continental European Law and Roman Law as of being the roots of the preceding. The term “source of law” also refers to the positive law on which a court decision should be based. While under rule of Ottoman Empire the Turkish State started a codification movement synchronised with most of the continental countries in 18th century which will be crowned with the first written Constitution (Kanun-i Esasi) in 1876. Following the 1923 Revolution, reception and codification movement has continued until this day within the republican era.
Hierarchy Of Law
There is a hierarchical structure in Turkish Law System which is governed by The Constitution on top of every written source of law. Legislative actions may be done in conformity with the content of constitution and therefore are subject to constitutional jurisdiction.
The ranking of laws are as follows; 1- Constitution (founding source law legal system based on public vote), 2- International Treaties regarding the fundamental human rights and freedoms, 3- Law (a.k.a. statutes, code or act, enacted by the Turkish Grand National Assembly and by the President of State in state of emergency), 4- Presidential decrees and other regulations (which explains the ways of practising such laws and therefore should be in conformity with the preceding law). 5- By-Laws (issued by ministries and other governmental bodies in conformity with laws and regulations)
I – CUSTOMARY LAW
Some sorts of way of conducts of the society are accepted by the majority as customs. And some customary rules may be applied to the legal disputes between persons. A custom must have been existed for a long time, continuously observed, considered right by society, recognized by law, not opposed to written law.
The function of customary law may be occured in commercial law mainly where Turkish Civil Code and Code of Obligations have no provision have no applicable provisions.
II – LEGISLATION
Acts of legislation are generally named as law, code, statute or act and are enacted by the aurhorities designated by the constitution. Legislation usually consists of rules of general application to many situations and cases and may be easily referred to. As we mentioned above those constitution, codes, treaties, decrees, regulations and by-laws are the resources of legislation.
III – COURT DECISIONS
In many countries the decisions of superior courts set standards and are treated with respect by inferior courts which will follow them when they have to decide on similar cases. In turkish legal system some precedents are binding if they are set by General Assembly of all chambers of the Court of Cassation while other chambers can not enjoy the same privilege. All other precedents are followed by inferior courts for practical reasons even though they are not binding.
Juristic works may not be considered as a direct “source of law” although in many cases they lead a change in law. Legal publications help the courts on their decisions but rarely quoted by the courts in their decisions. In many cases, the interpretation of a sentence or certain word in law text varies between practitioners and doctrine provide help to those.