FEA 102 Principles of Law

Week 6 – Public Law I Instructor

Niyper Hayal Artaç
 Public Law – Private Law

 In continental European countries the commonly accepted classification rests on the traditional distinction between public law and private law.

 Private law deals with relationships and the resolution of conflicts among private individuals (including the legal persons). This can also include the
State where it acts in the capacity of a private person. In other words, the State may come under the regime of private law in matters such as leasing a
building or purchasing supplies.

 Public law deals with the relationship and the resolution of conflicts between individuals and the State, with governmental regulation of
individual and corporate activities, and with the organization and limitations of State power.
 Public Law

1) The Fundamental Concept of Public Law

The State

 There are three main elements that constitute a “State”: A defined territory, a permanent population and sovereignty.
Taking these three main elements as the essentials of statehood, one can define the State as a political organization
possessing the ultimate authority to govern its own population within its territory.

A) Territory

 A State’s territory is the sphere where that State has the exclusive competence to enforce its laws and take other forms of action. State’s territory
includes not only the surface land but the airspace above, and for States bordering seas, the territorial waters. Territorial waters is the name given to
the strip of sea adjacent to the land area of a country. The airspace of a State includes not only the atmosphere above its surface land but above its
territorial waters as well. States have full sovereign rights over its territorial waters and air space.
 Public Law

1) The Fundamental Concept of Public Law

B) Population

 It is impossible to imagine a State without a permanent population. The legal link between an individual and a State is nationality
(citizenship). Each State can confer nationality on the basis of the criteria it establishes. There are two main criteria in the World: 1) Jus
sanguinis (child’s nationality determined by the parents’ nationality) and 2) Jus soli (child’s nationality determined by the place of birth).

 Not only real persons (human beings) but also juridical (legal) persons (such as corporations) have nationality. Even ships and
airplanes may have “nationality”, which is denoted by the national flag under which they are entitled to operate.
 Public Law

1) The Fundamental Concept of Public Law

C) Sovereignty

 Traditionally, sovereignty has been divided into two components: Internal sovereignty and international (external) sovereignty. In international
relations the external aspect of sovereignty is independence. It should be noted that member States of the European Union (EU) have delegated
certain portions of their sovereignty to the EU organs.

 International law is based upon the principle of sovereign equality amongst States. In theory, no State’s sovereignty is superior or inferior to that of
another. Nor does one State have the power to interfere in the internal affairs of another State, as each State holds the ultimate authority or
sovereignty over its internal affairs (UN Charter, article 2.7). However, in the aftermath of World War II, a heightened awareness of human rights
issues has somewhat limited this principle. Because human rights, as well as minority rights issues are not regarded as exclusively internal affairs of
countries.
 Public Law

2) Branches of Public Law

 Public law may be divided into six main branches: Constitutional Law, Administrative Law, Criminal Law, Procedural Law, International Law
and Environmental Law.

A) Constitutional Law

 Constitutional law regulates the social relations directly connected to the exercise of State power. It defines and delineates the structure of the State
and its constitutional functions and practices. It is concerned with such complex questions as the distribution of governmental powers (legislative,
executive, and judicial) and the functions and responsibilities entailed in the exercise of these powers. The task of defining and safeguarding
fundamental rights and freedoms is also among the functions of constitutional law. Constitutional law in any modern democratic country includes
various limitations that restrict the powers of a governmental branch, department or public officer (civil servant). In fact, constitutional law lays
down the basic principles for all other branches of law.
 Public Law

2) Branches of Public Law

A) Constitutional Law

 The origin of modern constitutions is recognized to be the English Magna Carta of 1215. It is deemed to be the first constitutional
document placing limits on the power of the king and granting rights to his subjects.

 The Constitutional Court has the power to declare “null and void” any statute passed by the Parliament which is contrary to the Constitution. Also in
many countries there is a “Constitutional Complaint” system. “Constitutional complaint” is a form of action recognised in many countries that
allows any individual to apply directly to the Constitutional Court to complain of a breach of any fundamental right and freedom. It should be noted,
however, that such an applicant is required to have exhausted all regular remedies available before bringing his/her case, applying before the
Constitutional Court.
 Public Law

2) Branches of Public Law

B) Administrative Law

 Administrative law is comprised of the body of rules that governs relations between the administrative authorities and private individuals, determines
the legal status of government officials (civil servants), and indicates the rights and liabilities of individuals in their dealings with these officials as
representatives of the State. The procedure by which these rights and liabilities are enforced is also regulated by administrative law. In short,
administrative law is the body of law built up around administrative actions and decisions.

 As a consequence of the principle of the rule of law, under which individuals are protected against illegal or arbitrary state action, all modern states
have found it necessary to develop rules which enable courts to exercise supervision over administrative actions or decisions.

 For example, Turkey established an independent system of administrative courts of which the Council of State is the highest body. The
administrative courts have jurisdiction over disputes between the individual (citizen or non-citizens; real or legal person) on the one hand and the
administrative authorities on the other.