PDF Dosyası - Ankara Üniversitesi Kitaplar Veritabanı

In our days the antagonism of the basic structures of the two legalsystems (mostly called "Civil Law" and "Common Law") continues todominate the global legal scenery. It consists in the fact that one of themis determined by legal theory which has a background of a tradition oftwo millenia and being actually reflected to a large extent by codifications,whereas the other gives no room to theory but is relying mainly onthe experience of court practice gathered during a couple of centuries.Simplifying the picture on may say that the English speaking countriesadhere to the system of England of which they were formerly colonies,while the other areas follow the tradition of Continental Europe. Thisis obvious for the countries being former colonies of Spain, Portugal orFrance (i.e. mainly Latin America), but the same is true for most parts ofthe near and the far East as well as for the countries having been formerlypart of the Sovjet empire. Whereas the adoption of the Common Lavvsystemis practically restricted to former colonies of England, the same isnot at ali true for the modern Civil Law tradition: it was created in Europeduring almost a millenium and gained in the last three centuries acceptanceworld-wide: The fact that Japan, old China, Korea and other empiresof the far east adopted codes following that tradition, shows that thisconcept of law was not introduced as a consequence of perseverance offormer colonies but as a result of free choice. That is also the situation ofTurkey having never been dominated by a foreign power implanting itslegal system there.Turkey, by choosing Swiss law as a model for its own codes, declaredat the same time its determination to integrate itself into the communitycreated by the European civil Law and integrated itself into thetradition of the Civil law area. Turkey therefore must adhere to the elementscharacteristic for said tradition. This country seems to be determinedto preserve the great clutural heritage of the Continental Europeancivil law. That being so, it is bound to follow the approach to law whichis dominated by legal theory and science. To adopt the approach to law asprevalent in the English speaking vvorld vvhich renounces to a large extentto reliance on theoretical thinking would constitute a breach with a traditionvvhich is its ovvn since three quarters of a century.VI. Some conclusions as to the füter e of the Civil Law, its being developedand taughtThe above references to the past should allovv some conclusions forthe future. As the development of the Civil Law up to its actual statuswas determined by the evolution of the underlying legal science and theory,the history of continental law is the history of the thereto related scienceand theory. What is the actual situation of this discipline, vvhat areits tasks and actual aims? The most spectacular element appearing in ourdays and changing the ideas of contemporary society and even of lavvyers226