PDF Dosyası - Ankara Üniversitesi Kitaplar Veritabanı

(by tradition a conservative breed) may be labelled as "internationalisation":an increase of information with respect to other countries, an increaseof uniformity of thinking and lifestyle. The consequences for thelawyers-community in Europe: The need to get acquainted with foreignlegal systems and even to familiarise with plans to give up national lawsin favour of unifıed laws, will result, so we dare hope, in an increased interestfor foreign lavv. Such an interest necessarily leads back to the past,i.e. to times preceding the "nationalisation" of European law and antecedentto the creating of national codes. It was the period of "nationalised"law which put an end to the previously existing common legal culture;the search for a futurecommon legal culture cannot but start from the oneexisting in previous centuries. The actual evolution favours a change ofthe thinking and academic habits of the lavvyers-community: They are invitedto a more comparative approach to lavv and to an increased integrationof past evolutions into the understanding and interpretation of the today'slavv. This evolution vvill probably on longer ranges have even moreimpact in Turkey because there -as vvill be explained belovv- the understandingof the lavv vvas more than elsevvhere focused on the nationalcodes and neglecting the historical basis of the actual (code-) lavv.Every act of codifıcation constitutes a long-term risk to legal scienceand investigation, vvhich are in danger to reduce themselves to an interpretationor even rephrasing ofı the legal texts -not only neglecting thehistorical background of the codified lavv and therefore partly missing tounderstand the raison d'etre of the existing codes, but disregarding somethingeven more important than the understanding of the codes: the anticipatedexposition of possibly upcoming practical legal problems even ifthose are not covered by codified lavv offering solutions to them. Historicalexperience shovvs that in the tvventieth century in France the legal literatürededicated to the FCC could not maintain its previous standing; theGerman literatüre of the last years is not sufficiently reassuring that it vvillbe able to maintain its previous Standard and vvill not degenerate to an uncriticaland mainly technical reporting of actual court decisions and recentlegal vvriting. To sum up: History provides some evidence that thecreation of a civil code constitutes a shock and long-term threat to ourdiscipline, the science of lavv.If this is true, the legal researchers in Turkey suffered tvvo shocksand a double threat: The act of national codifıcation, i.e. the creation ofthe Turkish Civil Code vvas only one of tvvo events, because the adoptingof the Svviss Code led back to the event of the Svviss codification. If theTurkish lavvyer tries to overcome the bar to the past established by his nationalcodification, he does not fınd himself in an ambience of precodifıcation,but in the Svviss procedure of codifying lavv: His search forthe substance as existing before codification and providing the basis forcodification must surmount tvvo barriers separating the actual code-lavv227