Merhaba sevgili okuyucularımız
Bu yazımızda Hukukçu Duygun YARSUVAT’ın 1963 yılında kaleme aldığı “Yürütme Organının Koyduğu Kaidelerle Suç İhdası ve 1961 Anayasası” makalesini esas alarak hazırladığımız bir okuma çalışmasını ilginize sunuyoruz. Hukuk İngilizcesi çerçevesinde tercüme ettiğimiz kısımlardan oluşturduğumuz bu yazıda Anayasa hukuku ve ceza hukuku alanında bir çok kelime ve kelime gruplarını öğrenme ve tekrar etme fırsatı bulacaksınız.
Keyifli çalışmalar dileriz …
“Offense Creation and the 1961 Constitution”
In 1764, Beccaria asserted in the third chapter of his work “Crimes and Punishments” that “only laws determine the punishment for crimes, and the right to make laws belongs to the legislator who has united through a social contract and represents the community.”
This notion, initially introduced in the 1789 Declaration of Human Rights, has subsequently gained acceptance in the legislation of numerous nations. In contemporary Turkish Law, the principle that crimes and punishments are determined by law is explicitly articulated as a constitutional principle in Article 1 of the Turkish Penal Code (TCK) and Article 33 of the 1961 Constitution.
A question arises regarding whether the law, the source of crimes, includes only decisions made by the legislative body in accordance with procedures outlined in the constitution, or if it also encompasses regulations established by the executive branch. Various perspectives have been advanced on this matter since the 1961 Constitution.
The specification of crimes in laws serves as a guarantee for individual rights and freedoms. Due to the relative inflexibility of laws, citizens can more easily acquire information about what actions constitute crimes. Conversely, in regulations established by the executive branch, individuals lack such assurance, as these decisions can frequently change, making tracking difficult. Nevertheless, this approach facilitates meeting social needs and streamlining state affairs.
The constantly evolving social needs on a daily basis can create an exceedingly challenging situation for the legislator, compelling them to monitor these needs, determine an act as a crime through legislation, or abolish its criminal status through legal measures.
Among various reasons, particularly due to the cumbersome nature of the legislative process, the executive branch is sometimes granted the authority to prohibit certain actions in similar situations.
However, we cannot overlook the Constitution text in terms of social needs; the 1961 Constitution, being a “legalist” constitution, has granted significant superiority to the legislative body. In this regard, it bears similarity to the 1949 Bon Constitution.
Today, governments play a role in directing and managing all aspects of state administration. Parliaments are entrusted only with the duty of oversight. The government operates with considerable freedom, appearing as a powerful executive.
The 1961 Constitution is a reaction, a response Constitution. It was drafted at the end of a period filled with negative experiences and could not be reconciled with realities. Despite its inconsistency with realities, the imposition of criminal offenses cannot be achieved through regulatory designs. The proper course of action is to amend the Constitution in this regard. Otherwise, under the pressure of events, resorting to framework laws or expanding the regulatory authority may occur, which, especially the latter, carries the nature of circumventing the law, as seen in the application of the 1946 French Constitution.
Test on “Offense Creation and the 1961 Constitution”
Section 1: Comprehension
1. What is the central idea of Cesare Beccaria’s assertion in the third chapter of “Crimes and Punishments”?
a. Punishments should be determined by the community.
b. Legislators have the sole right to determine punishments.
c. Crimes and punishments are subject to social contracts.
d. Only laws, established through a social contract, should determine punishments.
2. In which year did Cesare Beccaria make the assertion mentioned in the text?
a. 1789
b. 1764
c. 1949
d. 1961
3. According to the text, where is the principle that crimes and punishments are determined by law explicitly articulated?
a. 1789 Declaration of Human Rights
b. Turkish Penal Code (TCK)
c. 1961 Constitution
d. All of the above
4. What is the primary question raised in the text concerning the source of crimes?
a. The role of the legislative body
b. The inflexibility of laws
c. The evolving social needs
d. The authority of the executive branch
5. According to the text, what role does the 1961 Constitution attribute to the legislative body?
a. Oversight
b. Executive authority
c. Response Constitution
d. Legalist Constitution
Section 2: Analysis
6. Explain the significance of specifying crimes in laws for individual rights and freedoms according to the text.
7. Discuss the challenges faced by the legislator in responding to constantly evolving social needs and how the executive branch might be involved in addressing these challenges.
8. Analyze the implications of the 1961 Constitution being described as a “legalist” constitution and its similarity to the 1949 Bon Constitution.
Section 3: Critical Thinking
9. Do you agree with the text’s suggestion that criminal offenses imposed through regulatory designs carry the nature of circumventing the law? Justify your answer.
10. Considering the evolving nature of societal needs, propose potential approaches to balance the role of the legislative body and the executive branch in determining criminal offenses.
Section 4: Application
11. Given the information in the text, identify and discuss a real-world example where the executive branch’s authority in prohibiting actions might conflict with the principles outlined in the 1961 Constitution.
12. Imagine a scenario where the 1961 Constitution is amended to grant more regulatory authority to the executive branch. Discuss potential advantages and disadvantages of such a change, considering the text’s arguments.
Note: These questions are designed to assess comprehension, analytical skills, critical thinking, and the ability to apply the information provided in the text.
Answers
Section 1: Comprehension
- Answer: d. Only laws, established through a social contract, should determine punishments.
- Explanation: Beccaria’s assertion is that only laws, established through a social contract, should determine punishments.
- Answer: b. 1764
- Explanation: The text mentions that Beccaria made the assertion in the third chapter of “Crimes and Punishments” in 1764.
- Answer: d. All of the above
- Explanation: The principle that crimes and punishments are determined by law is explicitly articulated in the 1789 Declaration of Human Rights, the Turkish Penal Code (TCK), and the 1961 Constitution.
- Answer: a. The role of the legislative body
- Explanation: The text raises a question about whether the source of crimes includes only decisions made by the legislative body or if it also encompasses regulations established by the executive branch.
- Answer: c. Response Constitution
- Explanation: The text describes the 1961 Constitution as a “response Constitution” and mentions its similarity to the 1949 Bon Constitution.
Section 2: Analysis
- Significance of specifying crimes in laws:
- Explanation: The specification of crimes in laws serves as a guarantee for individual rights and freedoms because of the relative inflexibility of laws, making it easier for citizens to know what actions constitute crimes.
- Challenges faced by the legislator:
- Explanation: The legislator faces challenges in responding to evolving social needs, and the text suggests that the executive branch may be granted authority in certain situations due to the cumbersome legislative process.
- Implications of the 1961 Constitution being “legalist”:
- Explanation: The 1961 Constitution being described as “legalist” implies that it grants significant superiority to the legislative body. Its similarity to the 1949 Bon Constitution indicates a certain approach to law and governance.
Section 3: Critical Thinking
- Agreeing with the suggestion on circumventing the law:
- Explanation: Answers may vary. It depends on the individual’s perspective and understanding of the legal system. Consider the arguments made in the text about the nature of circumventing the law through regulatory designs.
- Balancing the role of the legislative body and the executive branch:
- Explanation: Answers may vary. Consider proposing approaches that maintain a balance between the legislative body and the executive branch, taking into account the evolving nature of societal needs.
Section 4: Application
- Real-world example of conflicts with the 1961 Constitution:
- Explanation: Identify a specific example where the executive branch’s authority in prohibiting actions might conflict with the principles outlined in the 1961 Constitution. This requires applying the concepts from the text to a real-world context.
- Advantages and disadvantages of amending the 1961 Constitution:
- Explanation: Discuss potential advantages and disadvantages of amending the 1961 Constitution to grant more regulatory authority to the executive branch, considering the arguments presented in the text.
These answers provide a framework for understanding the text and applying critical thinking skills to the concepts discussed.
Mini Dictionary
Certainly! Here’s a consolidated mini-dictionary for the text with English terms and their corresponding Turkish translations:
- Offense Creation – Suç Oluşturma
- Constitution – Anayasa
- Beccaria – Beccaria (Maintained as a proper noun)
- Crimes and Punishments – Suçlar ve Cezalar
- Legislator – Yasama Organı
- Social Contract – Toplumsal Sözleşme
- Community – Topluluk
- Declaration of Human Rights – İnsan Hakları Bildirgesi
- Turkish Law – Türk Hukuku
- Turkish Penal Code (TCK) – Türk Ceza Kanunu (TCK)
- Article – Madde
- Regulations – Yönetmelikler
- Executive Branch – Yürütme Organı
- Perspectives – Görüşler
- Individual Rights and Freedoms – Bireysel Haklar ve Özgürlükler
- Inflexibility – Esneklik
- Citizens – Vatandaşlar
- Assurance – Güvence
- Legislative Process – Yasama Süreci
- Oversight – Denetim
- Legalist – Hukukçu
- Response Constitution – Yanıt Anayasası
- Negative Experiences – Olumsuz Deneyimler
- Inconsistency – Tutarsızlık
- Criminal Offenses – Ceza Suçları
- Amend – Değiştirmek
- Circumventing the Law – Hukuku Atlamak
- French Constitution – Fransız Anayasası
- Parliaments – Parlamentolar
- Framework Laws – Çerçeve Yasalar
- State Administration – Devlet Yönetimi
- Imposition – Uygulama
- Realities – Gerçekler
- Authority – Yetki
- Advantages – Avantajlar
- Disadvantages – Dezavantajlar
- Balance – Denge
- Criminal Status – Cezai Durum
- Legal Measures – Hukuki Tedbirler
- Drafted – Taslak
- Period – Dönem
- Circumstances – Koşullar
- Nature – Doğa
- Grant – Vermek
- Similarity – Benzerlik
- Significant – Önemli
- Evolve – Gelişmek
- Facilitates – Kolaylaştırır
- Streamlining – Düzenleme
- Compelling – Zorlayıcı
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