HUKUKA GİRİŞ - Deneme Sınavı - 8

Tradition is not one of them.

The answer is analogy. Others are irrelevant except judicial syllogism. But it is used mostly in Civil law.

The definition given belongs to interpretation.

Court decisions are not subjects to interpret; they must be definite and clear anyway.

Correct fit for the blank is literal interpretation.

The correct fit for the blank is systematic interpretation.

Case law plays a significant role in civil law. It has an effect; however this effect is not strong as much as it has in case law. So I is wrong and others are correct.

Because gap filling also known as judge made law. Judge creates a new rule about the case in hand.

To interpret and To fill the gap  are not solutions for the given problem.One of the conflicting norms could be altered and An exception could be added  are applicable only by the parliement.

Turkey follows the civil law system.

There are two basic tools of legal reasoning - deduction and analogy. A typical judgment in a legal system based on civil law tradition is a logical deduction or series of logical deductions drawn from pre-existing premises. The method of finding law based upon deductive reasoning means subsuming a case under a legal rule. It is called syllogism.

The correct answer is A.

A typical judgment in a legal system based on civil law tradition is a logical deduction or series of logical deductions drawn from pre-existing premises, known as judicial syllogism. Common law courts rarely take as their starting point an abstract rule which then has to be applied to the established facts before them. Common law courts deal, first and foremost, with the facts of the case at hand and arguments of parties, and arrive at a solution through a reasoning process that tends to focus on the particularities of the actual institutions that are germane to the case before them. Thus, one can contend that, as a form of deductive reasoning, judicial syllogism is mostly applied in civil law countries.

The correct answer is B.

Judicial syllogism serves four main functions: rationality, certainty, justification, and guidance.

The syllogism provides the courts with an ideal mechanism for justifying what they do. To the party losing a case, it shows in a most objective and straightforward way that the judgment has been given in conformity with the law and is nothing other than a straightforward deduction from the principles of this law. 

The correct answer is C.

Known as one of the most commonly used arguments in legal reasoning in every legal system, legal analogy simply means finding the solution to a problem by reference to another similar problem and its solution. An analogy consists of an observed similarity between two phenomena, namely source and target. Analogical reasoning is an extension of the source to the target. Furthermore, it is an extension of a legal rule from one case to another due to a similarity which is regarded by the judge to be material.

The correct answer is E.

Legal analogy simply means finding the solution to a problem by reference to another similar problem and its solution. Analogy is an extension of the scope of a norm to be applied. The information given in the first four options is true. "Reasoning by analogy is not used in common law" is not true since analogy is a central form of reasoning found in many legal systems, especially ‘Common Law’ systems such as those in England and the United States.

The correct answer is E.

Legal systems have developed so-called canons of construction, which are the most important means of interpretation. The canons of construction used in the civil law are textual, historical, systematic and theological interpretation. Textual or literal interpretation is an investigation into the semantic content and the syntactic structure of a provision.

The correct answer is C.

In the common law tradition, textual interpretation is covered by the term “literal rule”, which requires if the words used in the statute are plain and unambiguous, they should be given their ordinary signification. The ordinary meaning of a word refers to its plain and popular sense. In case a statute contains a legal term of art, the court should give it its technical meaning, but not the ordinary meaning, unless there is something in the context to displace the presumption that it was intended to carry its technical meaning.

Thus, in this example, the legal meaning of a term supersedes its ordinary meaning. However, the Court arrives at this decision through a textual interpretation process.

The correct answer is D.

Systematic interpretation is related with the context of a norm; hence, it involves an investigation into the relations between the norm to be applied and other relevant norms and codes of the same legal system. This mode of interpretation serves the interests of consistency and coherence of the legal system as a whole.

The correct answer is A.

The meaning of "Ubi lex non distinguit, nec nos distinguere debemus" is "where a text is expressed in general terms, it is forbidden to introduce restrictions".

Thus, the correct answer is B.

There are two exemptions to the doctrine of precedent each of which involves the use of tools of legal reasoning: 1) Distinguishing: If a judge finds that the facts of the case he is dealing with are very similar to those of the precedent while at the same time thinking that there is a material difference between the two, he may distinguish the precedent. 2) Overruling: A judge can also overrule a decision of a lower court, if he thinks that the lower court has wrongly decided.

The correct answer is D.