a critical evaluation on the concept of justice in planning process

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