Kamu Hukuku Açısından Mülkiyet Hakkı

This article examines the right of property — the foundation of the claim "it is mine" — in its historical, philosophical and legal dimensions. Beginning with the definition of the right, it analyses its place in different civilisations and ideologies, and finally details its development and present position in Turkish constitutional law in the light of the Constitutional Court's decisions.

1. The Historical Development of the Concept of Property

• In Western law: the origin of property lies in the Roman-law conception of absolute dominion over the thing (res). Under feudalism landownership was fragmented and hierarchical; modern Western thought — the French Revolution above all — defined property as an innate, inviolable and sacred right of the individual.
• In Islamic and Turkish law: in Islamic law absolute ownership belongs to God, human beings being His trustees. In the Ottoman order land belonged largely to the state (miri land). With the Tanzimat Edict and the Kanun-i Esasi, private property began to be secured, and the individual's right of property was strengthened over time.

2. Economic Systems and Conceptions of Property

The article compares the outlook of three basic economic systems:

• Capitalism (the liberal conception): holds the individual and the right of property sacred and inviolable. Property is the foundation of individual liberty and state interference must be minimised; on this view the right is almost unlimited.
• Marxism: sees property — above all private ownership of the means of production — as the source of exploitation and class conflict, and aims at the socialisation of the means of production and the abolition of private property.
• The modern (social) conception: strikes a balance between these two extremes. It recognises property as a fundamental human right while emphasising that it is neither absolute nor unlimited: property also has a social function. The right may be limited by statute for the public benefit; ownership confers on the person not only powers but also duties towards society.

3. The Right of Property in the Turkish Constitutions

The article's main focus is the evolution of the right in the Turkish Constitutions:

• The Constitutions of 1921 and 1924 recognised property as a fundamental right but introduced no comprehensive regulation.
• The Constitution of 1961, adopting the principle of the "social state", marked an important turning point: it defined property as at once an individual and a social right, providing expressly that the right could be limited by statute for the public benefit and that the exercise of property could not run counter to the benefit of society (Article 36).
• The Constitution of 1982 (Article 35) largely continued the social approach of 1961: "Everyone has the rights of property and inheritance. These rights may be limited only by statute and for the public benefit. The exercise of the right of property may not run counter to the benefit of society." The provision both secures the right and clarifies the conditions of its limitation.

4. The Constitutional Court's Decisions and Conclusion

The article notes that in interpreting the right of property the Constitutional Court gives priority to the principles of the social state and the public benefit. On the Court's case-law: the right of property is not absolute; the state may interfere with it for the public benefit by expropriation, taxation or planning regulation; but such interference may not be arbitrary — it must rest on statute and must not impair the essence of the right.

In conclusion the author emphasises that the right of property is sacred and inviolable for the existence of the individual, yet in the modern state governed by the rule of law it is not independent of social responsibilities. Türkiye's constitutional order aims at a delicate balance between the individual's right of property and the general benefit of society.