What Is The Difference Between Property and Assets

Property is a legal term, while assets is an accounting term.

Only persons (individuals or corporate persons) can have "property".

But a business, a store, an undertaking etc. may have "assets", regardless of having personality in terms of law. It may have its corporate personality or just be a part or a branch of a "person". In either case, it has its own assets, but it may be incapable of having "property".

Secondly, in daily language the word "property" first refers to "real property" and therefore sounds even more different than "assets". However, "personal property" and "intellectual property" are also included in the term "property" in technical view of the law.

So, the most remarkable difference between the two terms is the "owner", not the content.

All That We Need In The Constitution Is Right There In The Text

My essay on sufficiency of written constitution, written for online course

Constitutional Law
by Akhil Reed Amar

My task was as follows:

"All that we need in the Constitution is right there in the text." Attack or defend this statement with at least three distinct arguments, using specific examples to illustrate your points.

My essay:

I don't agree the suggestion "All that we need in the Constitution is right there in the text". It is too dogmatic, shortsighted and incoherent, because a constitution must be much more than what is written in the text so that it can overcome every challenge that may arise by time, by unexpected occasions and by any interpretation that was not contemplated by its authors.

Constitution's Spirit Against Text

A written constitution reflects the idea behind foundation of a state. But that reflection is not the idea itself; the written constitution is only tangible appearance, an outcome of the idea. As in United Kingdom, a country can be governed by an unwritten constitution, whereas there are many unconstitutional countries that have written so-called constitutions just for show. Therefore, the written constitution must be used as a means of proof, commitment and record with regard to the founding spirit but must not be and cannot used for turning its underlying spirit into a fixed document of letters.

In particular, the US constitution is not considered an intellectual product of particular person or persons.[1] Though it is attributed to Thomas Jefferson, he admits that he only penned the independence declaration, a fundamental constitutional instrument, the declaration itself was in the air among the minds of the people that gather to found the USA. Therefore, US Constitution must be considered the common approach for political and civil matters, which was embodied for the purpose of popular dissemination, not textual limitation.

A Constitution For Future Challenges

Even there could be a way to perfectly transfer the ideas into letters, that would be a conveyance of that time only. That would cause great lack in responding to the coming challenges in several aspects.

Considering the fact that the technology got advanced in last 200 hundred years more than the total of the ages before, one can see it is highly critical for the Constitution to be able to adapt to every new development in science. Does the constitution's text really able to handle the matters of broadcast, internet, electronic voting, cyber battles, Wikileaks etc? Right to make propaganda through web, might not be inferred from the constitution if the constitional freedom of expression was handled literally. For example, the frequency of the election has changed by the time, owing to the advancement in the means of transportation and communication.[2]

Aside from the technology, many manners of social life has also tremendously changed since adoption of the Constitution; not only in national but also international level. Much before now, people were fighting duels, killing each other on personal, sometimes unimportant matters of honor -in their sense of dignity of that time. Or KKK could freely conduct great rallies on streets, defending their rights. Not only the technological tools but also social acceptances are advanced, mostly in liberal way, by time. This is why a paper, formed of constant propositions cannot be used as a recipe to solve every social problem. Otherwise, the right to information and even free press could not be derived from the constitutional provisions concerning the freedom of speech.[3] Freedom of getting information from the government, without giving any reasoning was something that perhaps could not be imagined during the times the constiution's words were shaped. Today it is possible by handling today's social needs through the constitutional mentality, not the text itself.

Power of Amendment Presuming Imperfect Nature of Text

Though there are several checks, the legislative body's power to amend[4] the constitution itself implies that what is written in the Constitution may be wrong; it may not be the true Constitution, but a text that misinterprets the standpoint that constituted the USA. Therefore 'all we need in the constitution' is not the text itself, but the political will that had led to the written constitution and new interpretations of or constructions from that political will is what makes the later amendments legitimate.

_______________________________________________________________________

[1] This is why it begins with the wording "We, the people" and as Mr. Amar mention in the first lecture, the noun "we" does not refer to the undersigners; it refers to the people of the USA.

[2] Mr. Amar in the early lectures had stated that the House elections were held less frequently in the first years, because it took time to make elections and send the elected person to the capital city. It was a common practice of that time as a result the level of the technology by then.

[3] In Houchins v. KQED, Inc., 438 U.S. 1, 15–16 (1978) decision, Supreme Court Justice Steven's dissenting opinion later allowed the right to obtain information from government by wide interpretation of freedom of expression for the press. Mr. Amar made reference to this case in his lecture on Supreme Court's contribution to the constitutional law.

[4] Though the 'amendments' are the supplements to the Constitution, I here refer both to those additions to the Constitution and also the modification on the original deed.

Inferring The Right To Wear Hat From US Constitution

My essay on inferring the right to wear hat from the US Constitution, written for online course

Constitutional Law
by Akhil Reed Amar

My task was as follows:

Suppose you had to defend the right to wear a hat—how would you do it? What kind of arguments would you make?

My essay:

The right to wear a hat is not expressly provided for in the constitution but it implicitly stems from several provisions of the Constitution.

First of all, the preamble of the constitution says "...secure the blessings of liberty", where liberty is not limited to national independence. It refers to the people's way of living in every aspect. The fact that the constitution, unlike many other countries of the time, does not require any certain religion or life style for being president, senator or representative implies that this liberty covers every aspect of life style, doubtlessly including the wearings. I emphasize on this aspect of freedom, because the most common barrier, if any, against wearing a hat or any other choice of wearing relates to religious concerns.

In connection with and addition to the foregoing argument, the first amendment expressly states that US ctiziens are free to exercise their religion and they have freedom of speech. Wearing a hat, may also be a way of expressing oneself's ideas. The more an individual wears different from the regular style the more protesting that person would look and that may be the point that individual is trying to make by wearing a particular type of hat.

The fourth amendment states that no person's properties can be subject to unreasonable seizure, which in practice results that a government officer must have to find the reason for disallowing the people from wearing hat; the individuals do not have to find a special reason to defend their immunity about wearing hat as a way of possessing a property.

The nineth amendment says enumeration in the Constitution, of certain rights, shall not be construed to deny others retained by the people. Given the fact that people were wearing hat even before foundation of the United States, and there is no express provision that later prohibited hats, people's right to wear hat was already recognized by the nineth amendment. So, it is a constitutional right to wear hat under the nineth amendment.

Also, according to the Declaration of Independence, as a major US constitutional text, people's unalienable rights include the right to life, liberty and the pursuit of happiness. In her or his way in pursuits of happiness, one may enjoy the right to do anything that makes oneself feel better, to the extent it exceeds to the same right of other people. Wearing hat may well be one of the ways to enjoy these rights in pursuits of happiness, if it makes the person feel better and does not harm the counter rights of other individuals or the public order.

In addition to the written sources of the Constitution, this freedom can be inferred from the precedences of the Supreme Court, which has accepted many right that were not clearly mentioned or even implied in the Constitution but commonly adopted by the states, such as right to free advocate. Considering the practice of the states all over the territory, Supreme Court would see this is a right practically recognized by all states, so it is already a requirement of the Constitution that does not limit itself with its own text.

Lastly, Abraham Lincoln, the iconic image of the constitution, and deliverer of the Getsyburg Address, used to wear stove pipe hat, so anyone in the country must be allowed to wear it!

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What Makes US Constitution Unique

My essay on the unique nature of the US Constitution, written for online course

Constitutional Law
by Akhil Reed Amar

My task was as follows:

In 1787, the Constitution was the largest-scale instance of a democratic form of self-government in the history of the planet.

• What specific provisions or features of the Constitution best exemplify or demonstrate the embodiment of the value of democracy?
• How were these features uniquely democratic compared to other forms of government at the time, such as the monarchy and Parliament of England, or under the Articles of Confederation?

My essay:

The Constitution's preamble beginning with the words "We, the people..." is the best indicator of the value attached to democray by authors of the Constitution, because it certifies that the Constitution was not written under particular people's superior authority, supposedly received from god or any nobelty. It was a declaration representing the will of the people, i.e. all man, as they were created equal[1]. The documents was, of course, penned by particular people, the Constitution was not an internal agreement or determination of the undersigners; it was in the air and the undersigners just put the words down onto the paper.[2]

In addition, the Constitution used the term "people", not "commons", a term underestimating the people, or "nation", a term that implies too much commitment among individuals of a people, or "subject", a term that indicates existence of a monarch. The Constitution refers to individuals of the time as "people", because it does not consider them having more o less power than they could factually hold as a result of the Constitution.

Further, the value attached to democracy by the Constitution is also apparent in the fact that the first article is devoted to the Congress, the most populous organ of the government. Appointment of the President was based on electoral college as well, but he or she is just one individual. The best way to represent the people, including their discussions and differences inside, is the Congress and it has a certain priority in the Constitution, showing that the constitution is for the people indeed.

Democratic nature of the Constitution is also seen in the second article, which provides for the qualificiations of Presidency. Firstly, the second article does not require the President to be White. For today's people this may be normal, but for that time it is a choice beyond its time, because many, maybe majority of the people would not find a racial discrimination strange by that time. Secondly, the second article does not require the President to be owner of particular amount of land. This is very democratic for that time, because the aristocratic nature of Britain had a strong reflection on the structure of the economic and political organization of the new lands in American continent, i.e. land owners had more money, more voice and more influence in the society[3]. However, the authors of the Constitution managed to avoid such economic discrimination, too.

The Constitution was uniquely democratic compared to other countries of the time, because, first of all, it was the first written constitution in human history. Though there had been many older constitutional documents in past, such as Magna Carta, the Constitution was the first written instrument, by which the creators of a state makes written commitments relating to democratic nature of the government.

It was also quite unique since it does not anticipate a permanent head of state. The president would be elected for a certain period and would quit the office by the end of the term; and so did George Washington. Therefore, the Constitution's unique nature was not dependant only on its theoritical anticipations, but also the way is properly implementation.

[1] The second paragraph of the Declaration of Independence (issued by the Congress in 1776, 11 years earlier) says "We hold these truths to be self-evident, that all men are created equal...", so the coverage of the wording "we the people" is clearly defined in the same document.
[2] It is believed that Thomas Jefferson made this admission years after the Constitution, to author of his biography.
[3] This was more true for southern states, where slavery and therefore "mastership" was still very common.

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Pyramid Schemes According To Turkish Law

Pyramid Schemes According To Turkish Law

Burçin Aydoğdu

Since late 1990's, Turkish law has been dealing with pyramid scheme organizations, which are locally called "chain of felicity".¹ Titan case was the first pyramid scheme organization charged for defrauding its members with impracticable promises. In 1999, the court convicted founders of Titan, a ponzi-scheme organization, for defrauding its members.² This became a pioneering decision, based on which further ponzi-scheme organizations were prosecuted or qualified.³

In their defense, founders of Titan said: "What we do may be against the business ethics, but not against laws.... I didn't defraud anyone or obtained unjust gain. I demand acquittance".⁴ However the court found them guilty of fraud:

"...With its objective, Titan, the mathematical gain system, is a type of business against ethics and
customs, which is described as crime and prohibited by the applicable law; it is a kind of of gambling..."⁵

Now there is new law against pyramid schemes. Law no. 6502 On Protection Of Consumer, which will enter into force by May 28, 2014, provides for prohibition of pyramid schemes in the following article:

"Pyramid schemes

Article 80 - (1) Pyramid scheme is an unrealistic or hardly practicable gain expectation system that gives its members a hope for gaining monetary or property gain by attaching further members to the
system with the same conditions, where each member's admission requires submission of a certain amount of money or property and the members receive the promised gain fully or partially conditional to other members' compliance with the terms.

(2) It is prohibited to establish, expand and recommend any pyramid scheme.

(3) Ministry [of Customs and Trade] is authorized to conduct necessary inquiries and take necessary measures regarding pyramid schemes, in cooperation with concerning public agencies and entities,
including but not limited to halting the electronic system, if any, within Turkey."

There is no doubt this provision provides for pyramid scheme, in the sense they are commonly described: (a) the scheme makes fraudulent promises (unrealistic or hardly practicable gain) and (b) the scheme is recruitment centered (requirement of attaching further members with same terms in order to make money).⁶

As for multilevel marketing organizations, which are also called product-based pyramid scheme by some authors⁷, the new law on protection of consumer is ambiguous as to whether it covers the multilevel organizations. With a view to the original draft of the law, we see that the lawmakers intended to handle
multilevel marketing organizations as a kind of door step sale organization. The draft provision was as follows:

“Contracts Made Out Of Office

Article 47

…..

(7) Mandatory content of a contract, excluded contracts, direct sales, multilevel gain systems, rights and obligations of consumer,seller and provides, right of withdrawal, information obligation,
delivery, qualities require for salespersons and other practical formalities and substantive rules shall be provided for in concerning by-laws.”

Upon a proposal by several members of the parliement, the wording “multilevel gain systems, ” was removed from the law. The explanation is as follows:

“Since multilevel gain systems has several difference in nature from door-step sales, the wording has been removed from article 47”

We see multilevel marketing was excluded from the scope of door-step sales. According to the legislative commission minutes, the wording was removed as a result of adding article 80 regarding pyramid schemes.⁸
However, in the following negotiation, it was not agreed whether multilevel marketing schemes were a kind of pyramid scheme. Though it is debatable, in jurisprudence, whether multilevel marketing schemes,
also referred to as product-centered pyramid scheme, must be treated in the same way with recruitment-centered pyramid schemes, the negotiations concluded that multilevel marketing schemes must not be
expressly included in scope of the pyramid scheme saying:

“This sector [multilevel marketing] employing 700 thousand people by direct sale method, is prejudiced by being mistaken for chains of felicity (pyramid schemes) such as the commonly known organization called 'TITAN'”⁹

Therefore, multilevel marketing schemes are included in scope of neither door-step sales nor pyramid schemes expressly. Classification and legality of multilevel marketing companies will depend on how the
courts will interpret the description of pyramid-scheme in article 80 of the law on protection of consumer.

The most outstanding differences between a ponzi/pyramid scheme and a multilevel marketing scheme, or
product-centered pyramid schemes as referred by some authors, are as follows:¹⁰

- Product-centered schemes are based on gaining money by selling products, rather than recruiting people

- Product-centered schemes do not require a significant admission fee

- Product-centered schemes do not require its members to purchase certain inventory

According to the speech made by direct sale society's representative in the parliamentary negotiations¹¹, members of multilevel marketing schemes can gain money by selling products and not adding any new members at all and the admission fee is so low as TRY 60-70¹², which can be returned within the trial period. It is not clear whether members are required to purchase certain inventory, but the
right to get the admission money back implies that member can return the inventory in exchange.

Therefore, multilevel marketing companies, as presented in the legislative negotiations are legal under the new law on protection of consumer as well as the principles suggested by the jurisprudence. However, its ethical nature is still debatable.

The most criticized characteristics of multilevel marketing schemes are: (a) people can feel offended when their friend or relative tries to make a sale to him, because the customer-seller relation may in many cases contradict with friendship or family relationship (b) house parties can make it more difficult for guests
to refuse the offers, as it is more difficult to refuse an offer in a host-guest relation, than a seller-customer relation in a store.¹³

In this viewpoint; though it is legal, multilevel marketing scheme as presented to Turkish parliamentary negotiations is still against ethics, because it requires the scheme's members to make sales to their friends, family or guests, or recruit them as member of the scheme with the same terms. In either way, multilevel marketing is a socially unethical method of sale.

1Literal translation of “Saadet Zinciri”.

2The reasoned decision of the case was announced in May, 2000; See http://arsiv.ntvmsnbc.com/news/5625.asp

3Some allegedly similar ponzi scheme organizations, including Berrak Pazarlama A.Ş., were publicly classified as new pyramid scheme; See http://arsiv.ntvmsnbc.com/news/72464.asp

4See http://archive.is/6fucQ#selection-59.1-113.84

5Plenary Session of Appelate Civil Chambers, file no. 1999/13-978, decision no. 1999/955, decision date November 17, 1999

6Darly Koehn, Ethical Issues Connected With Multi-Level Marketing Schemes, “Journal of Business Ethics 29”, p. 153, 154, available at
http://www.dsef.org/wp-content/uploads/2012/01/Ethical_issues_connected_with_multi-level_marketing_schemes.pdf

7Peter J. Vander Nat & William W. Keep, Marketing Fraud: an Approach to Differentiating Multilevel Marketing From Pyramid Schemes, “Journal of Public Policy and Marketing”, Spring 2002; 21, 1,
ABI/INFORM GLOBAL, p. 139

8Negotiation Minutes of Industry, Trade, Energy, Natural Resources, Information
and Technology, July 4, 2013, p. 26

9Parliemantery record of proposals, ordinal number: 490, p. 147; Negotiation Minutes of Industry, Trade, Energy, Natural Resources, Information and Technology, July 4, 2013, p. 30

10Darly Koehn, Ethical Issues Connected With Multi-Level Marketing Schemes, “Journal of Business Ethics 29”, p. 156, available at http://www.dsef.org/wp-content/uploads/2012/01/Ethical_issues_connected_with_multi-level_marketing_schemes.pdf

11Negotiation Minutes of Industry, Trade, Energy, Natural Resources, Information and Technology, July 4, 2013, p. 31 , 32 and following pages.

12Nearly USD 35.00 by currency rates of 2013.

13Darly Koehn, Ethical Issues Connected With Multi-Level Marketing Schemes, “Journal of Business Ethics 29”, p. 158, available at http://www.dsef.org/wp-content/uploads/2012/01/Ethical_issues_connected_with_multi-level_marketing_schemes.pdf