INTRODUCTION TO LAW

FATH UNIVERSTY
LAW FACULTY
FALL TERM 2013/14

Ass. Prof. Dr. Engin Karabulut

Legal systems
2

Civilian Law
Common Law
Socialist Law
Islamic Law

CIVILIAN LAW

CIVILIAN LAW
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A lot of nations today follow the major legal

traditions of Civilian Law. Civilian countries
include continental Europe and many Latin
America countries and Turkey.
Fundamental
Law systems of Civilian
countries to a greater or lesser extent are
based on Roman Law or rather revived Roman
Law.

CIVILIAN LAW
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Historical
roots

The term civilian law derives from the

Latin ius civile, that is to say, the law
applicable to all citizens (Latin speech:
cives). Its origins and model are to be
found in the monumental compilation of
Roman law. Roman law was the law that
was in effect throughout the age of
antiquity in the City of Rome and later
in the territories of the Roman Empire
(including the Byzantine Empire).

CIVILIAN LAW
6

Historical
roots

In the 11th century, Roman law came to

be applied in many European countries.
This process (so-called reception or
re-adoption) occurred at varied times
and to various extents across the
European continent. Roman law was
rediscovered and made the basis for
legal instruction in Italy. In the 16th
century, it came to be known as Corpus
ius civilis.

CIVILIAN LAW
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Historical
roots

Following generations of legal scholars

throughout Europe adapted the principles
of ancient Roman law in the Corpus iuris
civilis to contemporary needs. Thereby, in
the process of reception, many Roman rules
were amended to suit the domestic
conditions and sometimes amalgamated
with the existing traditional rules. The civil
law tradition based on Roman law was
thus
integral
to
European
legal
development.

CIVILIAN LAW
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Historical
roots

The civilian law tradition, developed in

continental Europe, was applied in the
colonies of European imperial powers, such
as Spain and Portugal. Civilian law was
also adopted in the 19th and 20th
centuries by countries formerly possessing
distinctive legal traditions, such as Russia
and Japan, that sought to reform their
legal systems in order to gain economic
and political power comparable to that of
Western European nation-states.

CIVILIAN LAW
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Historical
roots

As civil law came into practice throughout

Europe, the role of local custom as a source
of law became increasingly important
particularly as growing European states
sought to unify and organize their
individual legal systems. Throughout the
early modern period, this desire
generated
scholarly
attempts
to
systematize disparate legal provisions and
local customary laws, and bring them into
harmony with rational principles of Civil
Law and natural law.

CIVILIAN LAW
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Characteristic
traits

Civilian Law is codified. Countries with

civilian
law
systems
have
comprehensive, continuously updated
legal codes (written legal rules).
In a civilian law system, the judges role
is to establish the facts of the case and
to apply the provisions of the
applicable code. Indeed, the judge
cannot invent new legal rules.

CIVILIAN LAW
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Characteristic
traits

Though the judge often brings the

formal charges, investigates the matter,
and decides on the case. He works
within a framework established by a
completely codified set of laws. The
judges decision is consequently less
crucial in shaping civil law than the
decisions of legislators and legal
scholars who draft and interpret the
codes.

CIVILIAN LAW
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Characteristic
traits

The legal codes specify all matters capable of being

brought before a court, the applicable procedure,
and the appropriate punishment for each offence.
Such codes distinguish between different categories
of law:

Substantive law (maddi hukuk) establishes which

acts are subject to criminal or civil proceedings;

Procedural law (usul hukuku) establishes how to

determine whether a particular action constitutes a
criminal act;

Penal law (ceza hukuku) establishes the

appropriate penalty.

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COMMON LAW

COMMON LAW
14

Common Law is a system of principles and concepts

based on the judgement of courts. Common Law
concepts developed by judges on a case by case
basis may eventually become statutory law when
the legislature chooses to regulate the matter by
legislation.
Common Law countries comprise the Englishspeaking world and territories which, in the past,
were parts of the British Empire such as Australia or
New Zealand, and the USA as well.

COMMON LAW
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Historical
roots

The common law tradition emerged in

England during the Middle Ages and
was applied within British colonies
across continents. At that time, the courts
did not have any written legal measure
to decide on the cases before them.
Therefore the courts occasionally had to
judge, in the main, according to their
own conscience.

COMMON LAW
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Historical
roots

Medieval kings began to establish new

forms of legal action functioned through a
system of writs (royal orders). Each writ
provided a specific remedy for a specific
wrong. The system of writs became so
highly formalized that the laws, which the
courts could apply based on this system,
often were too rigid to adequately
achieve justice. Consequently, court
judgements were criticized as unjust or
unfair.

COMMON LAW
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Historical
roots

Therefore a further appeal to justice

would have to be made directly to the
king. This necessity led to a new kind of
court, the court of equity. This court were
authorized to apply principles of equity
based on many sources (such as Roman
Law and natural law) rather than to apply
only the Common Law, to achieve a just
outcome.

COMMON LAW
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Historical
roots

The writs system was abolished in the midnineteenth century. Even today, however,
some U.S. states maintain separate courts
of equity. Likewise, certain kinds of writs
still exist in the modern practice of
Common Law:

COMMON LAW
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Historical
roots

An example is the writ of habeas

corpus, which protects the individual
from unlawful detention. This writ
summoned the prisoner to court to
determine whether he was being
detained under lawful authority.

COMMON LAW
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Historical
roots

A further example is the Magna Carta,

produced in 1215, which declared
certain individual liberties of freeman
who could not be imprisoned or
punished without the judgment of his
peers under the law of the land
thus establishing the right to a jury trial.

COMMON LAW
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Characteristic
traits

Common Law is generally uncodified. This

means that there is no comprehensive
compilation of legal rules and statutes.
On the one handside, Common Law does
rely on some scattered statutes, which are
legislative decisions, it is largely based on
precedents. Precedents are the judicial
decisions which have already been made
in similar cases and are binding on the
court. Thus Common Law is also called
case law.

COMMON LAW
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Characteristic
traits

These precedents are maintained over

time through the records of the courts as
well as historical documentation in
collections of case law known as
yearbooks and reports. The
precedents to be applied in the decision
of each new case are determined by
the presiding judge. As a result, judges
have an enormous role in inventing and
shaping the law.

COMMON LAW
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Characteristic
traits

Judicially, Common Law functions as an

adversarial system. Accordingly, a contest
between two opposing parties takes place
before a moderating judge. A jury of
ordinary people without legal training decides
on the facts of the case. The judge then
determines the appropriate sentence based
on the jurys verdict. Theoretically, as the most
defining fundamental distinction between
Civilian and Common Law, the judicial
approach in Civilian Law follows the
inquisitorial method of law, particularly in
criminal cases.

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SOCIALIST LAW

SOCIALIST LAW
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It is controversially discussed as to
whether or not Socialist Law ever
constituted an own and separate legal
system.
The socialist system of law continue its
existence even after the collapse of
Soviet Union in countries like Cuba and
North Korea.

SOCIALIST LAW
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Socialist law systems provide for most property to be

owned by the state or by agricultural co-operatives,
and having special courts and laws for state
enterprises. Alongside, for example, the Soviet Union
had a term of private property in its civil code, courts
that interpreted this civil code, and a civil law approach
to legal reasoning (interpretation and application of
law). As a primary goal of socialism private property
was to be reduced through almost entirely
collectivisation and nationalisation.

SOCIALIST LAW
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Characteristic
traits

Socialist law has a highly enlarged

public law sector and diminished
private law sector.
The judicial process lacks adversary
character, as the public prosecution acts
as an inquisitorial "provider of justice.
A specific institution called court of
comrades decided on minor offences.

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ISLAMIC LAW

ISLAMIC LAW
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Islamic Law is more or less applied in islamic

countries, so it may be regarded as a religious
legal system.
It should be noted, that in many islamic countries
you may find a mixture of different legal systems.
There may be instances where the adoption of a
foreign code does not necessarily mean that the
actual legal practice of the foreign country in
question has been fully taken on.

ISLAMIC LAW
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For example in Turkey, although the fundamental

codes in the field of Civil Law and Civil Procedure
were receipted from Switzerland, legal practices of
the two countries are not identical. In addition to the
legal texts, which were altered through
transformation into Turkish, particular economic and
social circumstances brought about significant
differences in the interpretation of certain legal
provisions in Turkey.

ISLAMIC LAW
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Characteristic
traits

Islamic Law (Arabic: sharia) has certain

laws which are divinely ordained,
concrete and timeless for all relevant
situations. Sharia refers to rules and
principles out of the last Holy Book of
Allah (Quran) and the words, habits,
practices, and silent approvals of the
Prophet Muhammad (Sunnah).

ISLAMIC LAW
32

Characteristic
traits

It also has certain laws which are

extracted from the aforementioned
rules and principles by islamic scholars,
lawyers and judges (mujtahidin, ulema
and qadi).
The science to educe legal rulings
(ijtihad) is a part of fiqh (Islamic
jurisprudence), which refers to the sharia.

ISLAMIC LAW
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Characteristic
traits

Islamic jurisprudence is divided into two

parts: the study of the legal sources and
methodology (usul al-fiqh - roots of the
law) and the practical rules in the form
of branches of law (furu' al-fiqh).

ISLAMIC LAW
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Characteristic
traits

In the conception of Imami-Shi'I (Shia

jurisprudence), the sources of law are
the Qur'an, Sunnah and the practices of
the 12 Imams. The practices of the
12 Imams have roots in local customs
and way of their life (al-urf). As an
widespread
belief
among
the
adherents of this conception the third
source is the human intellect (aql).

ISLAMIC LAW
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Characteristic
traits

For Sunni Muslims (people of the tradition of the

Prophet), after the primary sources of Islamic law:
the Quran and the Sunnah, there are as further
sources the consensus among the Muslim community
on a certain issue (ijma), and the analogy drawing
from the essence of the primary sources (ijtihad,
qiyas). The latter results from the interpretation of
the primary sources by a Islamic scholar (mujtahid)
to deal with situations where the sources provide
no concrete ruling. Nevertheless, in Shia
jurisprudence, the analogical deduction is refused.

ISLAMIC LAW
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Characteristic
traits

Mujtahidin, ulema and qadi sought that fiqh

and sharia are in compliance and harmony
in any given case. In deriving Islamic Law,
there are not, therefore, actually creating
divinely correct or incorrect actions beyond
question, but rather interpreting divine
rules and principles. Hence the process and
intention to determine the divine legal
rulings by extraction the divine will on a
given matter is sacred.