Some scholars define administrative law as the entirety of the rules of law that regulate the administrative organ and its function and transcend the rules of private law. Since administrative law constitutes an important part of the state structure, it is important to determine the jurisdiction and privileges of the administration and the rights of the beneficiaries of the services to be provided by the administration and to ensure a balance between them.
This uniqueness of administrative law compared to other legal areas requires that its field of application should also be specifically determined. Since there are also activities of the administration subject to private law, and the field of application of administrative law must be distinguished from these activities. To provide this distinction, certain criteria have been raised by scholars. These criteria are the "public power criterion" and "public service criterion". In this article, public power, which is one of these criteria, will be analysed.
THE NOTION OF PUBLIC POWER IN ADMINISTRATIVE LAW
Some definitions have been made by scholars to explain the notion of public power. According to one definition, public power is a concept that helps to explain the nature of the state and is a constitutive element thereof. According to another definition, this concept is the founding concept of administrative law, which serves to give administrative law its logic, basis and essence. For this reason, it is possible to distinguish the concept of public power as public power in the broad sense and public power in the narrow sense in terms of its scope.
In a broad sense, public power is defined as the unilateral power to give orders, which gives the state the ability to impose its decisions and, when necessary, to enforce them. The concept of public power in the broad sense includes all the powers of the legislature, executive and judiciary. On the other hand, public power in the narrow sense means all the superiorities and privileges of the administration, which is an extension of the executive branch. These superiorities and privileges play an important role in determining the field of application of administrative law.
The criterion of public power, which is one of the theories determining the field of application of administrative law, argues that the acts and transactions of the administration by using public power are subject to administrative law and that disputes arising from these transactions will be resolved in administrative jurisdiction. This criterion, also known as the "Toulouse School" in the doctrine, divides the acts of the administration into acts of dominance and acts of representation, in other words, acts of public power and acts of administration. Although the Toulouse School declined against the "Bordeaux School", which defended the public service criterion in the early 1900s, with the abandonment of the public service criterion in the second half of the 1900s, it again became the main theory in determining the field of application of administrative law.
Public power, which is the determining element of the field of application of administrative law, brings certain privileges and obligations to the administration. These privileges and obligations may sometimes be intertwined, nevertheless, they play an important role in the application of administrative law. The reason for these privileges granted to the administration is the ensuring the public interest. Examples of these privileges include the authority to take unilateral actions, the power of ex officio enforcement, the benefit from the presumption of legality, the status of public property, the determination of special procedures for the collection of public receivables, the deeming of contracts as administrative contracts, the state of being considered a public official, being a tax-exempt legal entity, the resolution of disputes in administrative jurisdiction, and the subjection of the compensation of damages to the administrative liability regime. On the other hand, several examples can be given for public power obligations. For instance, the administration is not free to choose the contracting party and is under the obligation to tender, it is not free to choose personnel like private persons, and it is not free to pursue all purposes that are not contrary to the law and morality and only the public interest purpose can be pursued. In addition, the principle of inalienability of public property and law enforcement authority is applied. Furthermore, principles such as continuity, compatibility, impartiality and equality are applied in public service, and activities that are considered public service cannot be terminated.
The privileges and obligations of public power shall be derived from the constitution and laws. This is because, in public law, the administration's lack of authorisation is the main principle, while its authorisation is the exception. As a requirement of this principle, if it is not stipulated in the constitution and laws, it will not be possible for the administration to use any privilege of public power, regardless of whether it is necessary or not. In this case, it cannot be said that administrative law will be applicable. The basis of this principle in positive law is found in Article 13 of the Constitution, which stipulates that fundamental rights and freedoms can only be restricted by law. Since granting a privilege of public power to the administration means restricting the freedoms of individuals in that field, the granting of a privilege of public power can only be made by law. However, on the contrary, it is not a condition that public power obligations are defined only by law; they may be imposed on the administration by case law as well as by law.
The reflection of the concept of public power in practice is quite direct and evident. This is because, in cases where at least one of the privileges or obligations of public power is present, administrative law will be applied. This situation not only means that a possible dispute will be resolved by the administrative judiciary, but also has a direct impact on the determination of whether an action is considered as an "administrative action", whether a contract is an "administrative contract" or not, and even on the determination of the nature of the relevant legal entity as a public legal entity. In other words, it will be possible to define legal entities that use public power and privileges as public legal entities, and the liability arising from the transaction made by using one of the public power and privileges and obligations will be subject to the liability regime of the administration, otherwise, the provisions of private law will apply.
CONCLUSION
The concept of public power is one of the cornerstones of administrative law and plays a major role in clarifying the privileges and obligations of the administration. It is possible to evaluate public power in a broad and narrow sense. In a broad sense, public power includes the legislative, executive and judicial powers of the state, while in a narrow sense, it means the privileges of the administration. The criterion of public power plays a decisive role in the application area of administrative law, and it can be said that administrative law will be applied in the presence of public power privileges and obligations.
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