Türkiye Barolar Birliği Dergisi 167.Sayı

384 Normatif İsnat ve Hukuki Muhakeme: Bir Yargı Kararının Analizi Olgusal gerçekle ilgili çok sayıda nüans ve ayrıntı olmasına rağmen, yargıçlar olgunun bütününü dikkate almamıştır. Dahası, yargıçlar, yargı içtihatları ve öğreti tarafından geliştirilen iş güvencesi ilkesini hukuk normu olarak tanımamıştır. Yargıçların hukuki muhakemesinin normatifliğe değil nedenselliğe dayandığı, dolayısıyla hukuken geçersiz olduğu sonucuna varıyorum. Anahtar Kelimeler: Kelsen, Kant, Normatif Isnat, Aşkınsallık, Temel Norm, Hukuki Muhakeme, Kıdem Tazminatı Abstract: In this article, I try to read Kelsen’s normativity tenet compared with Kant’s transcendental deduction regarding the validity condition of legal reasoning. In the first section, I explain how Kelsen’s normative imputation tenet can be understood on the grounding of Kantian’s transcendental a priori cognition. I would argue that the idea of hypothetical Grundnorm in legal cognition and the unbridgeable gap between Sein and Sollen in normative legal science explicitly plays a foundational role in legal reasoning. In this regard, I define normativity and imputation as a sui generis descriptive component of legal reasoning. For Kelsen, the basic norm is necessarily presupposed condition to intellect legal norms as a systematically meaningful unity. According to Kelsen, the function of the basic norm is “to recognise a given legal material as law” and “to comprehend it as a meaningful whole.” I assert that judges should adhere to these two functions of the basic norm while making a normative (ought) connection between material fact and positive legal norms. In other words, judges’ legal cognitions construct the empirical legal materials as part of a meaningful order by normatively connecting legal consequences with legal conditions. In the second section, I simply adopt Kelsen’s normativity and Kant’s transcendentality to the judge’s decision-making process. I critically examine a decision given by the Turkish Supreme Court to concrete normative legal reasoning. The legal case is about a cleaning worker who was dismissed for the reason she took a half-empty chocolate box from the cloakroom in the office. Even though the worker is legally entitled to 15 years severance pay, judges decided that litigant-worker does not deserve the severance pay because of the unlawful action written as a “thieving” in the labour code. I analyse Supreme Court’s individual norm interpreted the worker’s act in a reductive way, concentrating on what fails to notice the material fact. Although there is a great deal of nuances and details regarding the factual reality, judges took no account of the whole point properly. Additionally, judges avoided considering the job security principle as a legal norm developed by judicial precedents and doctrine. I conclude that judges’ legal reasoning does not rely on normativity, but causality, therefore it is legally invalid reasoning. Keywords: Kelsen, Kant, Normative Imputation, Transcendentality, Basic Norm, Legal Reasoning, Severance Pay

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