CHAPTER TWO : SOCIAL ORDER

In a broad sense, all rules or principles that regulate and limit the conduct of Iindividuals in a society may
be called the law or legal order.

A closer examination of the matter reveals that the social order is not merely composed of legal rules. In
fact, law is only one of the parts that make up the social order. There exist other orders in society,
alongside the legal order, such as the religious order and the moral order.

The legal order (i.e. legal norms)¹ constitutes only one part of the "patterns of social conduct", i.e. the
whole body of rules which regulate the actions of individuals in a society.

1) MORAL ORDER

Perhaps the most important of the rules of social conduct, apart from the law, are moral rules. Moral
rules are principles, or standards, concerning right or wrong conduct, which are also called ethics.

Ethics define the principles, standards, and ideals which apply when judg- ing human conduct. These are
known as moral judgments

In every society there exist certain general moral principles that are strongly and deeply held. People
have always made distinctions between what is right and what is wrong, or between good and bad in
human conduct.

The laws of ethics or morals prevailing in a society reflect the values which are embraced as desirable or
ideal standards of human conduct in that society

Our daily experiences teach us that moral rules (such as to be honest and not to tell lies) are necessary
in social life, although not always practised. Along- side the law, morals also constitute a social
institution.

A) Relations Between Moral and Legal Rules

Law and ethics (moral rules) are related insofar as both are concerned with human conduct. There is a
close relationship between moral and legal rules. Many legal rules are derived from morality. Actions
such as murder, theft, defamation, mislead- ing publicity (advertisement) and the like are prohibited by
both morals and law.

In some cases, the law makes direct reference to morals. One of the best examples of the relationship
between morals and the law is Article 2 of the Turk- ish Civil Code (Türk Medeni Kanunu).

Good faith is a general moral category, which requires that every person act truthfully in his/her
relationships with others.

This means that every person is expected to act as a reasonable, honest human being bound by moral
principles when exercising his/her rights and performing his/her duties.

The Code of Obligations (Borçlar Kanunu) also refers to good morals. According to Article 20 of this
Code, contracts which are contrary to good mor als are void, i.e. they have no legal effect. The validity of
such a contract is not recognized by the law, and the parties to it are not protected by the law. The
courts will refuse to enforce such a contract.
However, an immoral contract is not always a criminal one. There are contracts for the commission of
acts, such as sexual acts deemed to be immor- al, which the law seeks to discourage, although not by
criminal punishment.

B) Public and Private Morality

In examining this topic an important question arises: by what standards should moral acts or contracts
be distinguished from immoral ones? Should objective standards of general (public) morality (general
moral beliefs and values of a so- ciety) or subjective standards of private morality (ie. the individual
value judg- ments of the parties involved) apply? Moreover, in States composed of multiple cultures,
which culture's standards of morality should the law take as its basis and uphold?

For example, in a South African murder case, a Zulu man killed a wom- an he believed to be an evil witch
after she had threatened to kill him with witch- craft. He claimed in his defense that as a Zulu he
genuinely believed that she would kill him with magic if he did not kill her first. Unfortunately for the
defen- dant, the white judge rejected the individual belief of the Zulu man and imposed the law based
on the morality of the dominant white group within the South Af- rican society,

There is often a conflict between private moral values and those of the community. For example, flirting
or drinking alcohol may violate the private morality of a conservative individual but be acceptable under
the moral values of the general community.

The subjective moral values of the persons in- volved are not taken into account. For example, in certain
sections of some societ- ies, the husband is under a traditional cultural moral obligation to punish the
infi- delity of his wife by killing her

C) Law and Justice

The concept of justice, meaning the fair, correct outcome of a legal dispute, is at the core of the
longstanding and popular view of the essence of law. "Law" and "Justice" may be regarded as close
neighbours, justice meaning the proper and fair administration of laws. In many countries, the
department of government that is in charge of the administration of the court system is called Ministry
of Justice.

Legal rules are expected to achieve the ends of justice. In other words, the purpose of every law must be
to uphold justice. However, there are instances where a particular legal rule is regarded as an unjust law
by certain people while others praise it as the embodiment of justice.

the eyes of justice are blind. However, history is replete with legal systems which were based on in-
equalities, particularly for women and people of colour. 12 Nevertheless, after centuries of conflict we
have arrived at a point in modern legal systems where slavery is prohibited13 and equality does, in
principle at least, apply to women and to people of all colour and ethnic origins.

In this connection, it would be appropriate to refer, briefly, to the relative- ly modern concept of "social
justice" which aims to secure that all members of a society should have equal benefits and
opportunities.

are to be treated equally and without prejudice is nec- essary but not sufficient.
Sometimes the line between what is right and what is wrong, even accord- ing to the tenets of natural
law, is not so clear. For example, euthanasia has be- come one of the most controversial moral and legal
issues of our time. The legal- moral question comes down to whether the protection of life is the moral
duty of the law, regardless of the quality of life, and of the person's pain and suffering, or should the
definition of life include what has been termed "life with dignity"?

D) Where Law and Morals Diverge

While the law often adopts and defines the ethical or moral standards of society, not all laws necessarily
reflect "morality". Morality may be regarded as the bed- rock of law but it is not the law.

Many areas of law, in fact, have no moral can whatsoever. Indeed, some legal rules may even diverge
from acurpred moral ed urs. People sometimes commit acts of selfishness which are gravely mur others
yet are not contrary to the law. For example, decerving a boyfriend girlfriend) by telling lies about
his/her past affairs or disappointing parmes by en gaging in acts not approved by them may be morally
wrong but perfectly lawful This leads us to consider the divergence between law and morals. Let u start
with one or two simple examples indicating how law and morals, even starting from similar premises,
may nonetheless develop along different and sometimes contradictory lines. The law may discourage,
condemn and even pun ish sexual immorality in various forms. But it may also refrain from attaching les
gal consequences to some acts of immorality such as licensed prostitution, formi cation or homosexual
conduct between adults, as long as there is no element of violence.

On the other hand, there are some legal rules which have no moral rele vance at all. For example,
according to Article 705 of the Turkish Civil Code (Swiss Civil Code Art 656), registration in the land
registry is a prerequisite for acquiring ownership of land.

2) RELIGIOUS ORDER

A) Introduction

The subject of the relationship between law and religion has been an integral part of the development
of modern legal systems. Although most western politi- cal systems have, in modern times, embraced
the purely secular (laik)

Lawgivers in ancient times tended to be treated or considered as mythical or semi-divine figures.

Religion and law in earlier political and legal systems were closely related. In ancient Egypt, the Pharaoh
was regarded as a living god.

In its purest form, religion is belief in a divine or superhuman power, or powers, to be obeyed and
worshipped as the creator(s) and ruler(s) of the uni- verse.

religion is one of the social in- stitutions

B) The Nature of Religious Rules

The interrelations between law and religion have evolved through different stag- es in the history of
humankind. In ancient times, religious rules included both moral and legal rules. In other words,
religious obligations and prohibitions were integrated in legal rules. Thus, the law was integrated into
religion and had almost no independent existence as a social institution
The integration of law and religion leads to a theocratic state system where religious rules are directly
applied to worldly affairs. According to the theocratic political theory, the organization of the state rests
on the will of God.

This means that the law, as an essential part of political organization, expresses the will of God.

The law, on the other hand, must change as the needs of society change, otherwise the rules it has
established will become obsolete.

In other words, law must be fluid and adapt itself to evolutions in social

Industrial development gave rise to the need for rules on industrial relations (regulation of working
hours, minimum wage, right to strike, old age pensions, etc.).

It should also be noted that when religion controls the law the conscience of individuals is not free. Such
a state of affairs brings about persecution and in- security for the members of society. The inquisitions
of the 16th century are the most notorious examples of this.

In general, in modern times the law is separate from religion, taking a neu- tral position towards it. This
is called "secularism" (laiklik). Today, Turkish law is based on the principle of secularism. Secularism is
regarded as one of the fun- damental characteristics of the Republic (Constitution, art. 2 and 4).

During the War of Independence, the first constitution promulgated by the National assembly on 20
January 1921 did not contain any provision providing for the religion of the state. It implied, however,
that Islam was the state religion.

According to a law24 cited by the Constitution, one of the purposes of the nation- alist regime was to
liberate the Caliphate and Sultan from foreign control.

On 2 November 1922, however, the Grand National Assembly adopted a resolution declaring that the
office of the Sultan had ceased to exist and that the of fice of the Caliph, which had hitherto been vested
in the person of the Sultan, was to be filled by one of the princes elected from the House of Osman.

On 29 October 1923, Turkey became a republic, and the leader of the lib- eration movement, Mustafa
Kemal (Atatürk), was elected President. Article 2 of the law which declared the Republic stated that
Islam was the state religion

On 3 March 1924, the Grand National Assembly decided to abolish the Caliphate. 26 After this decision,
the Caliph and all the members of the House of Osman were deprived of Turkish citizenship and
expelled from Turkey.

In 1926 the Government declared that social changes made it necessary to discard religious rules of
conduct and began a full scale reform of the legal sys- tem. The Swiss Civil Code and the Code of
Obligations were adopted to replace the old Islamic law (Türk Kanunu Medenisi, No. 743, 17 Şubat 1926;
Borçlar

Kanunu, No. 818, 22 Nisan 1926),29 This was another major milestone in cut. ting ties with Islamic rules.
These changes were followed by the adoption of sev. eral other western codes, among them the
Criminal Code of Italy and the Civil Procedure Code of the Swiss canton of Neuchâtel.
On 10 April 1928, the constitutional provision stating that "the religion of the State of Turkey is Islam"
was deleted.

Finally, on 5 February 1937, through an amendment to Article 2 of the Constitution, six principles
establishing the basic characteristics of the Republic were introduced. One of these was secularism. This
amendment represented a clear and positive step by the Turkish legislature towards the establishment
of secularism in Turkey.

The fundamentally secular character of the State was reaffirmed by the 1961 Constitution, and
subsequently by Article 2 of the 1982 Constitution and defined by the Constitutional Court in its
decisions.

D) The Place of Religion in Turkish Law

Secularism in Turkey does not mean that the law completely ignores religion. On the contrary, religion,
as a social institution, is among the areas regulated by law. The point is, however, that with the
introduction of secularism,

Under secularism the religious beliefs of citizens become one of the basic liberties protected by law. In
fact, the Turkish Criminal Code has a specific arti- cle protecting freedom of belief (Article 115).
According to this provision, any person who prohibits or interferes with the performance of the services,
rites or ceremonies of any religion shall be punished by imprisonment for one to three years.

3) RULES OF GOOD MANNERS (COURTESY)

A) In General

Rules of Manners or Courtesy Rules are the rules of good behaviour and good manners. In every society
there exist socially acceptable ways of behaving in pub- lic. These rules embody the forms and manners
established by convention as ac- ceptable and correct or even required in a "polite" society.
Membership of a social group, whether a club, association a profession or a nation, entails an obligation
to accept the conventional code of conduct rules of the group. Rules of Manners (propriety) apply
mainly to daily life and require conformity to accepted standards of proper or correct behaviour.

In principle, the rules of good manners are not legal rules, i.e. they are not enforced by law. When you
agree to meet a friend for a drink in the after- noon but he fails to turn up at the bar you may blame him
for his unmanner- lines but you cannot claim the expenses you incurred travelling to the bar.

B) Rules of International Courtesy

Rules of international courtesy, in the technical sense of the word, have no bind- ing force; yet they may
be regarded as a part of Public International Law. expect- ed to be complied with for the sake of good
conduct of the diplomatic relations and mutual respect between the parties.