Civil Law System (Continental
System)
Romano-Germanic
Family
Continental System
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Rules of Civil Law System were formulated basically by the
legal scholars in universities
not interested in the administration and application of these
rules----these were vested to legal practitioners
It has evolved basically as a private law
occurred in the 13th Century, mostly because of the
Renaissance + idea of secular society
increase of the number of big cities and trade relations
among them, rule of law or “legal system” became more
important than before for the protection of “rule and order”
in Europe
Civil Law System
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collapse of the Roman Empire----the arbitrariness---a need to formulate a social relation based on law
instead of arbitrariness
Universities played an important role and the
University of Bologna in Italy was at the top of this
list
Academics---the principles of justice and methods
(ways) of finding out these principles
Civil Law System
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They were not interested in the solutions by courts to
pending cases
They did not teach the local law, because it was primitive
and it contained confusing elements. The law was related
with the philosophy, theology and religion during this
period.
For them---Contrary to the Local law—Roman Law could
offer an organized and clear understandable system
Day by day the Roman Law was simplified + adapted
and applied for the solution of new problems
Civil Law System
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Roman Law was used as a basis for the
creation of Romano-Germanic System
Academic scholars adapted these Roman
Laws to the society of their own time
Romano-Germanic System has contributed
to the unification of Europe but on the other
hand it respected the diversity of European
countries
Civil Law System
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In the 17th and 18th Century---A new approach within the Civil
Law System Occurred and called as “Natural Law School”:
Contributions:
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order of a system is not because of a divine will (like god or king),
but because of the human being itself----“man” in the middle and
the “man’s reason” was accepted as the most important element
for the creation of a legal system (secular)
a different method in the application and interpretation of
Roman Law-----there has to be public law in addition to the
private law for the Roman Law---this public law was established
by way of supporting the “natural rights of man” approach and
by enhancing freedom and liberties of individual
Civil Law System
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Another contribution was Codification.
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Codification means the collection and harmonization of
rules and transforming them into a written form as “codes”
mostly by way of enacting legislation through the legislative
bodies
At the end of the codification process-----“National legal
systems” of different European countries.
In 19th Century----different “Civil Codes” in Germany +
France + and Switzerland.
these codes were adapted to the changing needs of
societies in which they were applied
Civil Law System
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Because of the same techniques and
methods derived from the original Roman
Law----we can find;
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similar fundamental branches in European
Countries
they use same vocabulary and ideas
Sources of Civil Law System
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These are the countries of written law---therefore “legislation” forms the basic
source of law
Sources:
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1- Legislation (Primary source)
2- custom
3- court decisions
4- doctrinal or legal writing
5-General principles of law
Sources of Civil Law System
Legislation:
Constitution
International
Treaties
Codes and Enacted Laws
Statutes
Statutory Decrees
Regulations
By-laws
Sources of Civil Law System
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Rules and principles on Legislation:
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Can be understood easily than other sources—written
+ explicit + general====”ignorance of law is no
excuse”
Includes more than one source and there is a
hierarchy between these sub-branches of legislation
Constitution is at the top of this hierarchy----All other
ordinary legislation must be consistent with the
Constitution-----result: “judicial control of
constitutionality of ordinary legislation” in these
countries.
Sources of Civil Law System
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“international treaties”-----undertakings of state----are transformed into domestic legal system--------than become part of the legislation
codes and enacted laws (or statutes)
Sources enacted by executive organs instead of
legislative one.-----they are called as “regulatory
acts”:
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They are promulgated for the implementation of statutes
by administrative authorities
They are subordinate to the legal statutes
They are: Statutory decrees + regulations + by-laws
Sources of Civil Law Systems
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Constitution:
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Supreme law of the land---no law can be contrary to it
Art. 11 Turkish Constitution:
“Supremacy and Binding Force of the Constitution
“The provisions of the Constitution are fundamental
legal rules binding upon legislative, executive and
judicial organs, and administrative authorities and
other institutions and individuals. Laws shall not be in
conflict with the Constitution”
Sources of Civil Law Systems
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Codes and Statutes (Laws)
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Different laws have different sphere of application
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Some applies to entire territory and all citizens/residents
(Criminal code)
Some applies to only some citizens (Labor law or laws
on particular areas--cities)
Some applies for a certain amount of time: earthquake—
tax exemptions
Sometimes a law applies to a certain citizen: surname
“Atatürk”
Procedure for a law to be “put into force”
Sources of Civil Law Systems
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International Treaties-(Uluslararası Antlaşmalar)
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Treaties of which that state is party to...
are approved by the Turkish Grand National Assembly by
enactment of a law.-----therefore----technically treaties are
Laws and like other Laws become enforceable following
their publication in the Official Gazette
But----the constitutionality of treaties in Turkey---unlike
other statutes (Laws) Cannot be challenge.-----this is
provided in the famous article 90
Art. 90 (Turkish Constitution)
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International Treaties ratified by the Grand National
Assembly enjoy all the qualities of a law.----International agreements carry the force of law in
Turkey----Be aware that this is valid for Turkey.
But unlike lawsConstitutionality or
unconstitutionality of international treaties cannot
be detected (controlled) by the Constitutional Court.
Their place in the hierarchy and Lisbon Treaty—
Czech Constitutional Court
Statutory Decrees (Kanun Hükmünde
Kararnameler)
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Turkish Grand National Assembly can authorize the
Council of Ministers by a special law to issue
statutory decrees on certain topics.
They are the decrees having the effect/force of law.
Although statutory decrees are enacted by the
executive authority, instead of the legislative one,
they are submitted to the Parliament for the review
and approval.
This special law-----describes scope + principles
and duration of the power to issue a statutory
decrees.
Statutory decree
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subject to judicial control of the constitutional
court.-----They have to be consistent with the
constitution + with codes and statutes + and with this
special law.
In Turkey in case of emergency and martial law-Council of Ministers has power to issue statutory
decrees without an authorization from the
Parliament.----Constitutionality of this kind of
statutory decrees cannot be controlled and annulled
by the Constitutional Court.
Regulations (Tüzükler)
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The Council of Ministers has the power to issue
regulations in order to determine and regulate the
implementation of statutes.
to issue a regulation-----there has to be a clear
reference within the statute on the promulgation
of regulations. Exp: TRNC Const. Art. 122:
“Unless the Constitution or a law gives express
power, no organ of the State shall make regulations
and put them into force. By-laws shall be made and
put into force only in accordance with Regulations.”
Regulations
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Regulations contain more concrete and
specific rules than statutes (Laws)
In Turkey---You can get annulment of a
regulation if it contains provisions contrary to
statutes from the Council of State
(Danıştay)---highest administrative court
In TRNC---High Court (sitting as
Administrative Court)
By-laws (Yönetmelikler)
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According to Turkish Constitution prime Ministry
+ the ministries + and public corporate bodies
(kamu tüzel kişileri) have the right to issue by-laws
in order to ensure the enforcement of statutes and
regulations
they should be published in the official gazette
Universities and municipalities may also issue bylaws in order to regulate their internal business and
relations with individuals
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Exp: by-laws on grading and evaluation + attendance
By-laws
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By-laws must be compatible with the statutes and
regulations.
In Turkey---if a by-law is issued by a ministry and
applied throughout the country-----the Council of
State is the body which has power to declare bylaws as “null” if it is contrary to the statute or
regulation.
But by-laws issued by other corporate bodies--not applied throughout the country might be
invalidated by lower administrative courts (Ankara
University----Promotion academics)
Custom (Gelenek)---Second source of
Law in Civil Law Countries
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In the primitive communities---customary rules
played an important role---But development of
legislators in world—in the modern communities
In Turkish legal system for a custom to have legal
validity----there are some requirements that must
be satisfied:
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Antiquity
Continuity
Popular belief in the rightness of a custom
State sanction
Agreement with statutory law
Conditions of Custom
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Continuity: This is the “objective (material) factor”
for the validity of a custom. A customary rule must be
continuously observedIf it is abandoned or its
practice is interrupted in favor of another custom--the continuity requirement is not fulfilled
antiquity: As a principle----a customary rule must
have existed for a long time and no living person
should know the beginning of it
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Exceptions---recently existed custom due to new inventions---custom on space law
Conditions of Custom
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Popular belief in the rightness of a
custom: This is the “subjective factorelement” for the validity of a custom. A
customary rule must consciously or
unconsciously be considered “right” by the
members of the society---–
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This is called “opinio juris” in Roman law
If a custom is maintained only by force---it
cannot be considered as valid custom.
Conditions of Custom
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State sanction: A customary rule receives legal
recognition when it is enforced by court order.----But a statute is law even before it is enforced by a
court decision (remember classical theory in English
Legal System)
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When does a court apply customary law rules?
civil code says: “where no provisions are applicable, the
judge should decide according to existing customary law…”
When the statutes are silent-----judges are allowed to apply
customary principles
Conditions of Custom
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Agreement with statutory law: A valid
custom must be in agreement with statutory
laws
statutory laws are superior to the customary
rules.
polygamy (having more than one spouse at
the same time) was abolished in Turkey by
lawreligious custom became “null and
void”
Other Sources in Civil Law Systems
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Court Decisions—Jurisprudence (Mahkeme
kararları-İctihad)-third source of Law in Civil
Law Countries:
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judges tend to decide in accordance with the pattern of
previously decided cases: easy + safe
Contrary to Common Law system---in the Continental
countries judicial precedents are not regarded as
direct source of law
court decisions play a creative part in the process of
interpretation of legislative texts only. And court
decisions do not directly create legal rules
Court decisions
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In Turkey----only certain precedents are followed.------inferior
civil and criminal courts are bound by some decisions of the
Court of Cassation (Yargıtay) and this court is also bound by
some of its own decisions.
Again---inferior administrative courts are bound by some
decisions of the Council of State (Danıştay).
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“some decisions”----Chambers responsible for “unified decisions”
of superior courts
binding and authoritative decisions of higher courts in
Turkey are-----Court of Cassation + Council of State + Military
Court of Cassation + High Military Administrative Court (Yüksek
Askeri İdare Mahkemesi)
Legal Writing-Doctrine
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position of universities within the evolution of the Romano-Germanic
Family
With the codification----this primacy of doctrinal writing was
replaced by the enacted law
legal writings are often persuasive and used as a supportive
element of a certain decision of the courts
offers some amendments and additions to the legal rules currently
in force and they contribute to the dynamic evolution of law.
Doctrine also creates some guidelines for the authorities
administering the law
2001 Turkish Civil Code: (Art. 1): “Law applies to all matters with its
letter and spirit. If there is no provision in the law applicable to a case,
the judge decides in accordance with custom. The judge take into
consideration academic opinions and court decisions in taking his/her
decision”
General Principles of Law
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Examples:
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“Principle of good faith” (bona fide principle): if you misuse your
right it would be impossible for you to exercise it again in future
“the principle of non-retroactivity of laws”: a statute could not
change rules applicable to past events.------and it is very important
for the stability of law and legal order
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a safeguard of democracy and personal freedom
Article 38 of the Turkish Constitution provides that “No one shall be
punished for any act which does not constitute a criminal offence
under the law in force at the time committed; no one shall be given a
heavier penalty for an offence other than the penalty applicable at the
time when the offence was committed.”
Exception----reduction case-in favor of the offender
General Principles of Law
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“Ignorance of law is no excuse”:
Lex posterior
Lex specialis
Presumption of innocence
No need to see such principles in a written
form in laws or other forms of legislation