Sources of Law

Chapter 1

Sources of Turkish Law

Adnan Güriz

I. INTRODUCTION

The law has evolved and continues to evolve from different sources or origins. These include historical and material sources such as religion, morality and old laws. The source of a current legal rule may be found in Roman law, or practices of moral laws applied in bygone ages. “Sources of law”, however, also refers to the collection of contemporary legal rules, the positive law, on which a judge bases a decision. The line between the different sources is sometimes difficult to draw and the exact content of each source difficult to fix. After the triumph of the movement of codification in Europe in the last quarter of the eighteenth and in the beginning of the nineteenth century many continental countries codified much of their law, both public and private. On the other hand, in the Anglo-Saxon countries the notion of uncodified law prevailed and is still predominant, and the majority of legal rules are derived from customary principles and judicial precedents. Turkey has followed the continental pattern and with the reception and codification of many European laws, legislation has become the most important source of law. To a lesser extent customary law and case law or judicial precedents are sources; finally books of authority or doctrine are regarded as subsidiary sources of Turkish law.

Various types of categorization for the sources of law can be made. What we’ll prefer is to classify the sources as main sources and subsidiary sources. We’ll study the main sources under two topics as written sources and unwritten sources.

II. Main sources

Main sources of the law can be defined as the positive laws that are directly used in solving an existing legal dispute. Main sources can be classified as written sources and unwritten sources.

A. Wrıtten sources

Written laws or rules may be classified into six categories of descending authority and importance. This is called hierarchy of norms....