a critical evaluation on the concept of justice in planning process

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This action was brought to Bursa Administrative Court and it was rejected because of lapse of time by the related court on 29.11.2000 by mentioning 60 days in proceeding had passed (WEB-16). The problem submitted in this case was the uncertainty regarding which institutions, in which scale were responsible in a group of events resulted with death and caused by legal/illegal constructions in the lands that should not be developed. There were and there are a lot of events resulted with death because of similar reasons. However, in the extent of this study, no data or pattern can be obtained about a comprehensive arrangement, authority or existence of such an authority regarding how the authorities carry out their responsibilities. 4.8. The General Evaluation of the Planning Process with a Specific Emphasis on the Actions Initiated in Balçova and Narlıdere Settlements The general <strong>evaluation</strong> of all the actions that were initiated from the standpoint of planning and the utilization of space can be grouped under the following sub- sections: 1. The overall <strong>evaluation</strong> of the planning procedures relating to the space that is under litigation shows the majority of the plaintiffs were property owners, private real persons or corporate entities who are directly affected from the decisions that were passed. 2. In the legal process, the parties attribute different meanings to concepts such as “rights”, “equality”, “interest”. Whereas, in the legal process, such concepts are interpreted in light of the wording of the legislation, and are finalized by the specialists in accordance with their own understanding. In the Balçova example, it is not possible to mention concepts on which a consensus has been reached in the urban sense. However, in the legal process, the concepts that are most widely used and that are even taken as basis, are the concepts of “rights”, equality” and “interest”. 3. From the standpoint of real persons, the term “right” refers to ownership rights and the entitlement to benefit from such rights. 4. None of the arguments and <strong>evaluation</strong>s of the parties, contain any definitions regarding the term “interest”, how it should be determined and how it should be implemented. Consequently, the term “interest” remains rather abstract and within this general context, it is not clear to identify the winning party and the losing party in the 178
decisions that are passed on the basis of “benefits” mentioned in the context of the urban space. The arguments on the concept of justice in the process of juridical equity, judicial supervision can be evaluated in a comprehensive way. This kind of way, during the <strong>evaluation</strong> of whether or not a court resolution is in conformity with the rules of justice (equity), two different approaches can be adopted in the criticism of a court decision passed in connection with a particular legal action. (a) According to the first approach, the existing rules of jurisprudence, in other words, the positive law is taken for granted as given data. In this <strong>evaluation</strong>, whether or not a given court resolution was a “fair and just” resolution, is judged on the basis of a <strong>critical</strong> approach. “Was the litigation process undertaken by an independent and objective organ that fully conformed with the definition of a “court?”,“Were the rules of law pertaining to the action defined and executed in an accurate manner by the court?”, “Were the persons involved in the action entitled to benefit fully from the rights provided to them by the current rules of law during the presentation of their claims, or during their defense?”, ”Were the testaments of the witnesses and other relevant evidence taken into consideration in due conformity with the rules of law?” “Were the rules of law and the phenomena that are pertinent to the subject matter of the litigation evaluated accurately and consistently in the justification of the resolution?” It can be assumed that a given court is “just and fair”, if a positive response can be given to each one of the questions mentioned above. In the second approach, the <strong>evaluation</strong> of the subject matter exclusively in terms of jurisprudence, is not deemed as adequate. In this approach, the positive law that puts a definite distinction between the “right” and the “wrong” is exceeded and a philosophical parameter is sought. This supreme parameter is “Justice”. In this approach, the fairness (equity) of the court decision is more important than its compliance with the rules of positive law. (b) From this perspective, even if it has been implemented accurately and appropriately, an investigation is made in order to ascertain whether or not a given rule of law is appropriate in the particular case, both in content and in purpose.” (Aybay & Aybay,2003, pp. 69-70) In order for us to make an <strong>evaluation</strong> according to the first approach, primarily, we have to take for granted that the parties who are involved in the litigation process; namely, the plaintiff, legal attorneys of the plaintiff, the defendant, the legal attorneys of the defendant, the experts and the committee in charge of the court session, are presenting their <strong>evaluation</strong>s exclusively from an objective standpoint and in strict compliance with the legal process. This objectivity shall imply that as the concerned parties, all constituents shall alienate themselves from their personal viewpoints regarding the social phenomena, and from their subjective opinions and <strong>evaluation</strong>s. In can be argued that in an <strong>evaluation</strong> based on this understanding, the litigation matters are resolved within the scope of a judicial process that adheres to the principle of equity, and in conformity with the contents of justice, as defined in the positive law. 179
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A CRITICAL EVALUATION ON THE CONCEP
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ACKNOWLEDGEMENTS I would like to th
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ÖZET Bu tez, Türkiye ehir planlam
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2.3.2.The Attained Principles and R
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4.3.3.Objections to Demolition Deci
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LIST OF TABLES Table Page Table 2.1
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1.1. Aim of the Study CHAPTER 1 INT
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urban space. The considered aspects
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e revealed and defended. The practi
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questions, of which the answers are
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problems in legal process, effects
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taken in 1999 regarding the area in
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c. Municipalities of Balçova and N
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CHAPTER 2 THE FRAMEWORK OF JUSTICE
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concepts is the society’s structu
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c. how the procedures are explained
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society rather than the individual.
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economy approaches encounter. As a
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25 Table 2. 1. The Main Emphasize o
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equal citizenship are taken as sett
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2.3.2. The Attained Principles and
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2. that the liberties shall be rest
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y Rousseau, Locke and Hobbes. Forma
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content “rule of law” is descri
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2.4.3. Liberties and Rights in the
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Second Stage Rights and Liberties;
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sources new arrangements in economi
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ack to the limited contents of mini
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2.5. Spatial Considerations Based o
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specific in its redistributive aims
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giving the heterogenous urban visio
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In this approach that is based on a
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social and economic rights and in t
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the state on public space and the c
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I. Part-In General Principles chapt
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Land ownership and its utilization
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egulations are done with Conservati
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account; the efficient use of resou
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of law and justice and preparing th
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eport among legal regulations enact
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financial resources of administrati
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installments starting from 150 mill
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Table 3. 3. Total Number of Househo
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Results of the studies of two impor
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public services are among the other
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Turkey. Individualistic rights and
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a notice hang at the building and o
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and give them the statue of being l
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important points. First one is shri
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applications. Articles 15 and 16 of
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gecekondu in this law is made as;
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prior subjects in the organizations
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establishing a social balance and g
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3.5.2.2. Limitation of Ownership Ri
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3.5.2.3. Individual, Social and Pub
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In the legal transformations which
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Narlıdere realized in 1992. By thi
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Although not making any decisions o
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Figure 4.1.A. Detail from Balçova
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107 Derived from the data Planning
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4.2. General Evaluation of Actions
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Table 4. 3. All Administrative and
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4.2.1. General Evaluation of the Ac
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115 115
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Table 4.5. All Administrative and J
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119 119
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121 Table: 4.8. Administrative and
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About Subdivision Plans Proceeded i
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12. Narkent Includes the actions br
Page 139 and 140: Table 4. 9. Administrative and Juri
Page 141 and 142: Chamber of Architects) and 1 action
Page 143 and 144: 4.3.1. Actions about Expropriation
Page 145 and 146: decision of zmir-Çe me Highway and
Page 147 and 148: In the claim of Municipality of Bal
Page 149 and 150: monetary/moral difficulties and los
Page 151 and 152: Table 4. 11. Actions of Nullity Pro
Page 153 and 154: which are defined in legal process,
Page 155 and 156: accepted the explanation of “havi
Page 157 and 158: Plans scaled 1/5000 that include Ma
Page 159 and 160: 4. “Decision Amendment Demand”
Page 161 and 162: Table 4. 42. Distribution of Demoli
Page 163 and 164: children’s playgrounds, green zon
Page 165 and 166: shown as a work site in the impleme
Page 167 and 168: court decision will be in favor of
Page 169 and 170: 7. Objection against the rejection
Page 171 and 172: Municipality has repealed its plans
Page 173 and 174: Expert Report: 1. The purpose of th
Page 175 and 176: with the scale of 1/1000 was put in
Page 177 and 178: 2. As the result of the reexaminati
Page 179 and 180: effectiveness of the location of th
Page 181 and 182: located in between the Mithatpa a R
Page 183 and 184: purposes, which is the demand of th
Page 185 and 186: no: 97-98-99 on building block no.6
Page 187 and 188: lands belong to the Treasury”. On
Page 189: party because documents in court fi
Page 193 and 194: Figure 4. 6. Spatial Distribution o
Page 195 and 196: CHAPTER 5 CONCLUSION 5.1. General C
Page 197 and 198: 5.2. Results of the Transformation
Page 199 and 200: urban settlers by the urban physica
Page 201 and 202: 5.3. Results of Field Survey In the
Page 203 and 204: also the legal and legitimacy proce
Page 205 and 206: etween Özdilek which carries a pri
Page 207 and 208: career, do not have a common defini
Page 209 and 210: organization in making the most dis
Page 211 and 212: Books: REFERENCES Ackerman, B. A. (
Page 213 and 214: Kele , R. (1994) Yerinden Yönetim
Page 215 and 216: Articles and Papers: Akkar, M. (199
Page 217 and 218: Türkçe Sözlük (1974) TDK Yayın
Page 219 and 220: Lai, C.&Wai, L. (2002) Libertarians
Page 221 and 222: Sivil taatsizlik (1998), Disiplinle
Page 223 and 224: APPENDIX A The Extent of Subject Cl
Page 225 and 226: Personnel Actions for annulment of
Page 227 and 228: APPENDIX B Examination of Actions B
Page 229 and 230: demolition decisions are under the
Page 231 and 232: Explanation of Terms Used in Thesis
Page 233 and 234: APPENDIX E All Collected Data Inclu
Page 235 and 236: Conference Papers and Seminar Prese
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