“The law must be applied in all cases which come within the letter or the spirit of any of its provisions.where no provision is applicable,the judge shall decide according to customary law and, in default thereof,according to the rules which he would lay down if he himself head to act as a legislator”
The first and most important source is the Code itself; The judge is to apply it whenever it is applicable. If the case before him can be held to fall within the letter or the spirit of any of provisions, then he must give effect to them.
But the code is not the complete enunciation of the law that governs all possible or conceivable cases within its scope; it does nor purport to be so,and there must necessarily gaps,intentional and unintentional.It only purport to be complete as a system,in the sense that it contains a place for every rule that fits into that system.Therefore,it is necessary to provide for the cases where the code fails; In these cases the judge is to look for his source in existing and established custom.This is the duty of the commentators and the courts themselves;the article,therefore,merely, names the source of law.
But further they may not be even a rule of custom in existing or applicable to the case before the court.The judge must find his source of law in his own conviction;or,in other words,he must create for the particular case in point, his own source of law.As the article puts it,he must decide as if he, himself were acting as a legislator.
The second paragraph of the article,which is intended to govern the whole section and is,therefore palced in a paragraph itself,gives the judge directions calculated to assist him in his duties of applying the code and the custom and of finding the third source of law in his quasi legislative capacity.He is to take as his guide and for his assistance and advice the principle of jurisprudence and theories of legislation which are to be found in approved legal text book writers and previous judicial decisions.Careful search among these sources of inspration will preventarbitrary judgements and enable him to carry into effect the spirit of legislator himself by continuning and completing his work for the establishment of order and justice.Needless to say that,the turkish judge benefit from the foreign law;i.e the swiss law relating to the jurisprudence and doctrine, to a large extent.
“where the law expressly leaves a point to the discretion of the judge,or directs him to take circumstances into consideration, or to appreciate whether a ground alleged is material he must base his decison on principles of justice and equity”
The proper meaning of this article is,what seems the judge to be right and fair according to the opinion and values universally held at the time,and therefore,according to the accepted principle of good faith and morals.
The concept of justice and equity is,generally held to be a notion which is in advance of strict law, the jus aequum as apposed to the jus srictum:this concept of something higher or more advanced in point of development is combined with the general principles of justice andgathered from considering law as a whole.İt is one of the functions of the judge to find this principle of justice and equity,and to apply it to the solution of the difficult problems met with it in every variety of a case, from questions what shall amount to insanity or mental incompetience to the proper grounds of divorce,from the responsibilty entailed by the head of a family to the reasonable amount of a penalty.
As a result, article 1 bids the judge to interpret in the spirit of the code;article 4 bids the judge,in certain cases to decide according to justice andequity:then he will be held to have decided within the spirit of the law as a whole and thus to have carried out the general injunction contained in article1.