The constitutional integration in Turkish law is made by the constitutional harmony among all legal norms. The first stage of constitutional integration is the constitutional harmony among constitutional values. Then, the rank of legal norms is ordered in the light of the first stage. Otherwise, the view of the constitutional integration is concreted by the effect of fundamental rights and freedoms on the third person.
This research aims the composition of Turkish law and German law for the new solutions on constitutional integration effect of fundamental rights and freedoms on the third person in Turkish law.
Table of Contents
I - THE CONSTITUTIONAL INTEGRATION OF LEGAL NORMS
A - DEFINITION
B - TYPES
1 - The Constitutional Integration of Internal Constitutional Norms
a - The Constitutional Integration Among Fundamental Constitutional Values
i - Definition
ii - The Possibilities of the Constitutional Integration among Fundamental Constitutional Values
(I) - The Solution of Priority
(II) - The Solution of Number
(III) - The Solution of Content
(IV) - The Solution of Reason
(V) - The Solution of Constitutional Experience
b - The Constitutional Integration of Secondary Constitutional Values
i - General Constitutional Provisions about the State
(I) - General Constitutional Provisions about the State related to the Contents
(II) - General Constitutional Provisions about the Procedure of the State Function
ii - General Constitutional Provisions about the People
c - The Constitutional Integration of Specific Constitutional Provisions
2 - Constitutional Integration between Constitutional Rules and Other Legal Norms
II - THE EFFECT OF FUNDAMENTAL RIGHTS AND FREEDOMS ON THE THIRD PERSON (DRITTWIRKUNG)
A - DEFINITION
B - THE DIMENSIONS OF THE IMPACT OF FUNDAMENTAL RIGHTS AND FREEDOMS
1 - The Direct Impact (Unmittelbare Wirkung)
2 - The Indirect Impact ( Mittelbare Drittwirkung)
C - THE APPEARANCE OF THE IMPACT OF FUNDAMENTAL RIGHTS AND FREEDOMS
1 - Horizontal Relationship
a - Subjective Character
b - Private Aim
c - Obligator
i - Judge of Civil Law
ii - The Related Person
d - Personal Sanction
i - The Determination of Problem in Civil Law
ii - Compensation
2 - Verifical Relationship
a - Objective Character
b - Public Aim
c - Obligator
i - Parliament
ii - Administration
iii - Judge without the Judge of Civil Law
d - Sanctions
i - The Annulment of the Rule of Civil Law which is against Constitution
ii - The Legislative Obligations For the Realisation of Fundamental Law (Schutzpflicht)
Research Objectives and Core Topics
The primary objective of this work is to analyze the concept of constitutional integration and the subsequent effects of fundamental rights and freedoms on third parties, known as "Drittwirkung," within the framework of Turkish law. The study explores how constitutional norms guide and harmonize the broader legal system, ensuring that fundamental rights are protected even in private relationships between individuals.
- The definition and types of constitutional integration of legal norms.
- The hierarchical relationship between the constitution and lower-level legal norms.
- The mechanisms of "Drittwirkung" in the context of civil law.
- The distinction between direct and indirect impacts of constitutional provisions on individuals.
- Comparative perspectives from German and French constitutional doctrines.
Excerpt from the Book
1 - The Direct Impact (Unmittelbare Wirkung)
Constitution determines the fundamental rights and freedoms and civil law orders the detailed rules about fundamental rights and freedoms although the conflict between the rules of civil law and constitutional law can be seen; otherwise, in spite of the existence of the rule of civil law, the restrictions of the related fundamental right or freedom can be written within constitution. In two conditions, the related constitutional rules are used directly according to the general opinion of Turkish law, but there is another claim that if there is no-rule within the civil code, the clear constitutional rule with the direct constitutional effect is used for the related specific problem. According to this idea, there is no possibility to neglect a law which is against to constitution by the courts. Indeed, according to the Article 11 of the Constitution of the Republic of Turkey, "laws shall not be in conflict with the Constitution".
In Hungary, the constitutional effect is direct on civil law by the constitutional spirit, as well. According to the German doctrine, the private relationship among people has direct impact of fundamental law, so the responsibility of state and individual are seen actively.
For example, the freedom of thought isn’t explained within Turkish civil law. In that case, because of the violation of personal rights, the estimate of the compensation needs the determination of the legal problem which is the violation of the freedom of thought, written in the Article 26 of the Constitution of Turkish Republic.
Summary of Chapters
I - THE CONSTITUTIONAL INTEGRATION OF LEGAL NORMS: This chapter defines the concept of legal harmony between the constitution and various legal rules, explaining the tools used to achieve this integration.
A - DEFINITION: Defines constitutional integration as the legal harmony among all rules according to constitutional aims, emphasizing the shared philosophy behind diverse legal norms.
B - TYPES: Discusses the two primary types of constitutional integration, specifically focusing on internal constitutional norms and the integration between constitutional and non-constitutional rules.
II - THE EFFECT OF FUNDAMENTAL RIGHTS AND FREEDOMS ON THE THIRD PERSON (DRITTWIRKUNG): Explores how fundamental rights and freedoms, typically governing the state-individual relationship, exert influence on relationships between private individuals.
A - DEFINITION: Defines the effect of fundamental rights on the third person as the state-mandated obligation for individuals to respect each other's fundamental rights.
B - THE DIMENSIONS OF THE IMPACT OF FUNDAMENTAL RIGHTS AND FREEDOMS: Categorizes these impacts into direct and indirect, determining when constitutional norms supersede or interpret civil law provisions.
C - THE APPEARANCE OF THE IMPACT OF FUNDAMENTAL RIGHTS AND FREEDOMS: Details how these impacts manifest in horizontal and verifical relationships, examining the roles of the judiciary, parliament, and administration.
Keywords
Constitutional Integration, Drittwirkung, Fundamental Rights, Freedoms, Turkish Law, Civil Law, Hierarchy of Norms, Rule of Law, Constitutional Harmony, Legislative Obligations, Horizontal Relationship, Judicial Review, Legal Norms, State Obligation, Human Dignity
Frequently Asked Questions
What is the central focus of this research?
The research primarily focuses on the constitutional integration of legal norms in Turkey and how these fundamental rights and freedoms extend their influence to private individuals, a concept known as "Drittwirkung."
What are the core thematic areas discussed?
The core themes include the hierarchy of legal norms, the direct and indirect impacts of constitutional rights on civil law, the responsibility of the state, and the role of the judiciary in protecting fundamental rights.
What is the primary research goal?
The primary goal is to demonstrate how constitutional principles and fundamental rights can resolve disharmony between civil law and the constitution, ensuring a cohesive and enforceable legal framework.
Which scientific methods are applied?
The work employs a doctrinal legal analysis, comparing Turkish constitutional principles with German and French legal doctrines to evaluate how constitutional norms inform broader legal practice.
What is covered in the main body of the work?
The main body examines the definitions and types of constitutional integration, the dimensions of fundamental rights' impact, and the practical appearance of these effects through various legal relationships and institutional responsibilities.
Which keywords define the scope of the work?
Key terms such as Constitutional Integration, Drittwirkung, Hierarchy of Norms, and Fundamental Rights characterize the academic focus of this study.
How does the author explain the difference between direct and indirect impact?
Direct impact occurs when constitutional rules are applied immediately to solve a conflict, whereas indirect impact involves using constitutional principles to interpret and concretize vague or insufficient rules within civil law.
What role does the Constitutional Court play in this framework?
The Constitutional Court acts as the final arbiter for resolving disharmony, ensuring that legislation and judicial decisions remain consistent with constitutional values and fundamental rights.
How is the relationship between the state and the third person structured?
The state serves as the main obligator tasked with protecting fundamental rights, while individuals act as secondary obligators bound by these rights in their private relationships with others.
- Quote paper
- Betül Aslan (Author), 2013, The Constitutional Integration Effect of Funadamental Rights and Freedoms on the Third Person In Turkish Law, Munich, GRIN Verlag, https://www.grin.com/document/209232
