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PRIVATE V. PUBLIC LAW


The distinction between private and public law is
considered to be very important in civil law
countries.
The distinction is recognized in common law
countries, but not considered to be of much
practical importance.
LAW CAN ALSO BE DIVIDED IN OTHER WAYS. THERE IS
ALSO A DIVISION BETWEEN INTERNATIONAL LAW AND
MUNICIPAL LAW.
International law 
laws that regulate
relations between
states, international
organizations, other
international actors.
Municipal law –

national law.

(Municipal law can
also mean the laws
governing a city.
Public Law
Rules regulating
relations between
private individuals
and the state.
 Operation of
government .
 Extent of state
authority, relationship
between state organs
and public.

Private Law

Relationships between
private persons.

“person” can be
natural or legal:

MORE WAYS LAW CAN BE DIVIDED. THE DIVISION
BETWEEN SUBSTANTIVE LAW AND PROCEDURAL
LAW.
Substantive law 

Rules that create, grant,
recognize and determine
rights and obligations.
Eg: the rules of criminal
law:
The laws defining
murder, theft, etc. A law
making using a
particular drug a crime
is a substantive law.

Procedural law 


Legal rules that provide
methods for enforcement of
rights or prosecution of
criminal violations.
In other words, rules that
lawyers and courts have to
follow when trying to reach
their substantive goals.
Eg: the rules of civil
procedure:

IN FEDERAL STATES, LIKE THE US AND GERMANY,
THERE IS ALSO A DIVISION BETWEEN NATIONAL
LAW AND STATE LAW.
Example: A corporation
is a legal person.
Rules on the steps one must
follow to start a civil suit
against someone.
BRANCHES OF LAW:
1) CONSTITUTIONAL LAW:
1.
2.
The fundamental source of law.
Article 11 of the Turkish Constitution (1982) states:
1.
2.
Laws shall not be in conflict with the Constitution.”
The provisions of the Constitution shall be the
fundamental legal principles binding the legislative,
executive and judicial organs, administrative authorities
and individuals.”
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WHAT DOES A CONSTITUTION DO?



1. Structures the government and the state.

2. Establishes a means of constitutional review
by the judiciary.

GOVERNMENT AND THE STATE.
PARLIAMENTARY

Presidential or parliamentary system
Unicameral or bicameral assembly
 Federal or unitary state


PRESIDENTIAL SYSTEM
As in the US, where the President is elected
separately from the legislature.


We will also look at how constitutional review
works in Turkey.
3. Provides for the protection of human rights.
1. STRUCTURES THE

Today, we will look at how a constitution can
structure the government and the state.
Ministers (secretaries) chosen by President, not
members of the legislature.
In theory, the executive and legislative branches
are equal.
SYSTEM
As in Turkey, government by a group of
ministers, chosen by the party that wins the most
votes for the legislature.

Executive branch chosen from legislative branch.
There is a head of state (monarch, president) but
he/she has little actual power.
 The real head of the executive is the prime
minister.

BICAMERAL VS. UNICAMERAL

2 houses:

1 house:


As in the US, UK, France.
As in Turkey.
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FEDERAL VS. UNITARY
A unitary state is one in which there is a single
supreme government authority. All local
government authority is delegated from the top.
 It is generally entirely up to the national
government which powers local officials may
exercise.
 Turkey and the UK are examples of this kind of
state.

WRITTEN VS. UNWRITTEN


The oldest constitution in existence today is the
UK constitution. It is often said to be
“unwritten.”
The oldest written constitution in existence today
is that of the US.
A federal state is one created when a number of
self-governing entities come together to form one
country.
 Generally, the national government and the selfgoverning entities will have clearly defined
powers, which will be enshrined in the
constitution.
 The US and Germany are examples of federal
states.

CONSTITUTION OF THE UNITED KINGDOM:
Not written in a single document
An accumulation of traditions, customs, acts of
parliament and legal precedents.
 Flexible, in that it can be changed by simply passing
an Act of Parliament.
 Unitary system of government, not federal.
 Fusion of power – executive elected from legislature.


UNITED STATES CONSTITUTION:
Written
Can be changed, but changing (amending) the
constitution is much more difficult than changing
the law.
 Provides for separation of powers between 3
independent branches of government: executive,
legislative, and judicial.
 Separation of powers between federal
government and state governments.



Actually, of course, the UK constitution is written
down – it is just not written in one document.
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AMENDING A CONSTITUTION
procedures for changing, or
amending, entrenched constitutions vary
from state to state.
CONSTITUTIONAL REVIEW:
 The

– the power of courts to review the constitutional
validity of statutes passed by parliament and acts of
government officials and to reject those that violate
the constitution.
 What
they have in common is that they
are all meant to make changing the
constitution more difficult than changing
an ordinary statute.
ACTION FOR ANNULMENT


In Turkey, access to the Constitutional Court is
available through an action for annulment, a
constitutional objection, or a constitutional
complaint.
Ordinary courts can raise this objection.
 Party must convince the court that the objection
is serious.
 When a court certifies a constitutional issue, it
suspends the case in question until issue is
settled.
Abstract review of legislation before
Constitutional Court.
Law may be challenged directly, without waiting for
a case.
 Only certain individuals and groups can use this
action:

Laws, decrees and parliamentary rules all within
jurisdiction of Constitutional Court.
CONSTITUTIONAL OBJECTION



President, party in power and main opposition party, 1/5 of
the members of parliament. (Article 150.)
CONSTITUTIONAL COMPLAINT
A new form of action that was added by amendment to
the constitution during the referendum of September
12, 2010.
 Using this form of action, any person who thinks that
his fundamental rights under the European
Convention on Human Rights have been violated may
apply directly to the Constitutional Court.

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

Individuals are required to exhaust domestic
judicial remedies prior to filing a petition with
the Constitutional Court.
Petitioners must pay 150TL to file a complaint.

http://www.non-discrimination.net/content/media/TR-10The%20individual%20constitutional%20complaint%20procedure%20ent
ers%20into%20force%20in%20Turkey.pdf. Retrieved on Nov. 1, 2012.
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