Fikret İLKİZ
The Roman Lawyers are plaintiffs and YÖK is the defendant, why? As in the General Board of the Higher Education decision dated 27.08.2009, related not giving place to the "Roman Law Department" and to close the department, they submit that it was against the laws. They stated that YÖK has not presented any reason and the public interest was not manifested, they requested the cancellation of the decision and to stop the execution.
It is written on the decision of the council of state. YÖK which is established according to the 1982 Constitution, is responsible and authorized for the matter to open, merge or close the departments and art departments in the higher education institutions, in the direction of the principle and targets of the state’s development plan and to decide on the propositions which come from the universities. I learned the identity of the people who proposed about the Roman Law from the decision..."In this frame where the work started with the coordination of the Higher Education Board for the purpose of increasing the quality of the education presented in Law Faculties, meetings were organized firstly in University of Gazi with the contribution of the Law Faculty deans and secondly in University of İstanbul and in the meeting realize din the university on İstanbul in 15.08.2009, because of the reasons that there were differences according to departments between the Law Faculties, and problems in application to associate professorship and assignment of academic personnel, to resolve these problems, a decision was taken in a way to create the support for this decision and presenting the quality of recommendation for the case”…
A year ago the Deans of the law faculties have meet and took an advisory decision. YÖK who complied with this recommendation, removed the Roman Law as a department by not giving it a place. We see who presented some recommendations! We couldn’t learn it without the decision of the council of state. Eight Department of Council of State (Basis No: 2009/9418) decided to stop the execution of the YÖK decision in 11.06.2010.
Why? That’s how it is the council’s decision: “Roman law, is presented a source particularly to the legal system of the mainland Europe and many legal systems inforce and the main rules of these systems. Because of this quality Roman law constitutes especially the spine of the European Mainland law system. An important part of the special law codes which rule this law system, came from the Roman Law to our days. For this reason, Roman Law is not only a law history but considers also the origin of a current law system which is presented in European Land law system’s code with his codes and concepts. As the Roman law creates the basis of the rules and principles of the modern legal systems , especially in private law in the area of rules and institutions in parallel with the Roman law, makes it the utmost importance in terms of legal trend, shortly thereafter the Republic of Turkey was established in 1926 the civil Code and Obligations law which essential is taken from Switzerland based on Roman law formed, we entered into the Land Europe cultural environment and an important step in the transition to the secular law system is taken. With this step the Roman Law which was the symbol of the Turkish Revolution started on 1926, form the source of the concepts available for private law, the theories, rules and principles, as in Europe also in our country it has an essential importance in teaching, meaning and applying the private law.In other words in our country the institution, rules and principles of roman law, continue to exist in codes which are still on execution and to be a solution for the disagreements. Because of this importance from the day it entered in our law system the roman law which was teach as a mandatory course firstly organized as a separate platform and than and a separate and independent department in the academic organization.
While the decision of the 8th Council of State continue, it is stated that YÖK has to behave according to the necessity of the period and needs of the society, the authorization and duty have to be used in compliance with the law and also the facts which will enforce the regulation to fulfill the public good have to be presented substantially.
According to the council of state “In this concept the unconformity subject to the case situated above, while taken under consideration with the basic legal principles, from the day it entered into our legal system in the frame of the legal regulations, the regulation related to closing the Roman Law Department which was firstly a separate platform and than a separate department in the academic organization, by not giving him a place, has to be based on scientific proofs which will comply it with the law. And also the regulation subject to the case can not be described with the concepts as the sole the authorized will be the administration and he will have the right of recital, it is indisputable that in the said subjects the scientific facts which require a new regulation and change. The opposite will mean that the administration is not using his regulation authorization and decision right according to the principles presented and for this reason to law. By the defendant institution it is claimed that the regulation subject to the case, is realized after long term meetings and works, after taking point of views of the professors, as a result of the advisory decisions taken by the meetings realized with the contribution of the law faculty deans by taking under consideration the needs of our country, the application of developed countries, the public advantage and service necessities and also the judicial discretion related to the establishment or removal of the department is on their responsibility and this responsibility is used according to the laws. But it is observed that no scientific study or report which support these claims and which present a base in the realization of the regulation and there were no information and documents which present the necessity of the reasons and academic necessity to remove the Roman Law department, the data or scientific opinions taken on this matter.
In the light of these descriptions according to the 2nd article of the decision dated 27.008.2009 and number 2009.15.1433 of the General Board of the Higher Education Board in relation to the re-organization of the Law Faculties, as there is no compliance with the law in relation with the closure of the situated department by not giving a place to the Roman Law which is the foundation stone of the Turkish Law Revolution and at the same time which is valid, existing and current law section Roman Law in education, meaning and application of various concepts, institution, rules and principles valid in private law area which are pursued from 1926 to nowadays and it is understood that there is no scientific reason to justify, to present a legal concept to present that I use the recognition right of the administration for public advantage and service requirements.
The Roman Law that we read as Department is the foundation stone of the Turkish Revolution, is the modern legal system. Or otherwise the concept of Justice and the secret of living honorably is hidden in Digesta. Who are the deans who signed the “advisory decision” dated 15.08.2009 which removes the Roman Law from being a “department”? Who signed the YÖK decision dated 27.08.2009? In Adapazarı meeting the prime minister said some of the decisions of the Council us state drove us crazy”…Who got crazy by this decision of the council of state?
August 23th 2010