Prof. Vojislav Stanovcic, Ph.D., Serbian Academy of Science and Art, Belgrade

The Rule of Law and the Building of a Lawful State

What are the Obstacles to the Implementation of Great Legal Principles?

What Should be Changed in the Process of Transition?

– Basic Theses –

I
ON THE CHARACTER, PRINCIPLES AND INSTITUTIONS THE RULE OF LAW AS A CIVILIZATIONAL ACHIEVEMENT

From its very beginnings, law has played a great civilizational role, which is also characterized by various contradictions accompanying it up to the present. On one side, law is an expression of the political will that creates it and, on the other, a means of regulating relations and conflicts in a rational way, as well as a means of restricting political will and, especially, self–will. One question, which was the subject of debate among classical thinkers and has remained as such among modern political and legal philosophers is: »Whether the commands of one political will , supported by enough force , can be considered as law regardless of their content? « In order to define »a law« and »law« – apart from the legislator's will as an important yet only one factor – great philosophers began over time to include such elements as rationality, quality, scale of values and justice in the law, regarding them as its essence. Attention was also devoted to the procedures of adopting a law (code), as well as to some other factors ensuring the authority and durability of the adopted rules.

The rule of law has been the ideal of political and legal philosophers since Plato and Aristotle. And some world religions, especially monotheistic ones, starting with Judaism, also did not leave the omniscient and all–mighty god to rule over the people at will. Instead, they laid down the rules of individual and social life and behaviour, the observance of which was required in the name of a certain deity. Having its origins in the Judeo–Christian tradition, the idea of the rule of precepts or, to use a more modern vocabulary of legal philosophy, was built in the foundations of the so–called West–European civilization. Such ideas also provided inspiration to new–century constitutionalist movements. One of their lasting aims was to restrict power so as to prevent any absolute power or the arbitrary rule of one man, eliminate its consequences caused by the outpooring of passions, and substitute various forms of domination and tyranny of man by man for the rule of impersonal, impartial, objectivized and relatively rational, wise and just rules. Liberal–democratic theory does not leave all concern about those rules to bureaucracy. In any case, those rules should leave enough freedom to reasonable people and establish a sufficiently broad framework for them that they can – thanks to a relative freedom and security – exercise their “right to the pursuit of happiness”, as stated more than two centuries ago. Since the revival of humanism, when man was placed in the centre of social values, these ideas have also created a basis for the development of the modern theory of human rights, which was regarded by the authors of democratic theory as the purpose of establishing a government and the limit that could not be exceeded by any authority.

From the viewpoint of legal philosophy, it cannot be accepted that law is every set of rules, which is backed by the state monopoly over the means of coercion, even if a conventional procedure is in question. It is necessary to keep a critical distance from the content of positive law. According to Gustav Radbruch, law may be positive and still be defective : “Any justification for the existence of provably defective law is inconceivable.”

The rule of law implies certain contents , procedures, institutions and rules of the game or, in other words, a fair play in the political, economic and almost all other spheres of social life, the rules inspired by the highest human, ethical, philosophical and religious values, and laid down as a metalegal foundation and civilizational standard for the overall legal system. Through the centuries and civilizations, the great authority of this idea was based on the belief in wise rules rather than in the degree of coercion being necessary for their observance.

It seems to us that just as about one thousand years ago, the peoples living in our neighbourhood renounced barbarism and, by adopting Christianity, joined the so–called West–European civilization, the adoption of some basic values, principles and institutions of the rule of law is now a ticket to be admitted into the society of the countries belonging to the West European civilization. How to introduce this great idea into our country, on what principles to base it and what institutions, legal systems and policies are needed?

By its nature, law (like the principle of the rule of law) is a normative category , which says what should be done and what should not. Despite the normative, highly theoretical or metatheoretical nature of the principle of the rule of law, it plays an important practical role in so–called legal life.

The idea of the rule of law concerns the foundations of the legal system and its materialization would exert influence on all branches of law, as well as on the status of the citizen and almost all spheres of social, economic and political life. Today, the quality and legitimacy of the legal system of a country, as well as of its branches, rules, institutions, enactments, decisions and procedures depend in large measure on consistency in the implementation of the principle of the rule of law. Like democracy , it is an essential yet not sufficient prerequisite. To a great extent, the establishment of the rule of law guarantees that, in the process of their adoption and implementation, legal acts will be given such a content and meaning as are peculiar to the idea of law and justice.

WHAT CAN INSPIRE US IN BUILDING A LAWFUL STATE?

In considering the significance, conditions, assumptions, possibilities, ways, basic principles, institutional forms, as well as obstacles to the establishment of a lawful state or the rule of law, in addition to the appropriate methods and steps to be taken and the principles and institutions to be supported, the following is of great significance:

(1) General assumptions of political and legal theory and philosophy in which the greatest minds – some of them after a great dilemma and after seeking the best solutions – opted for the rule of law.

(2) The content and rules of procedure of foreign legal systems help us to resolve Aristotle's dilemma (which still exists) as to how to ensure that law–making bodies make good laws. A comparable critical study of foreign legislations is necessary as an incentive, as well as for their critical reception, which one should not be afraid of, because the unification of law is a global tendency, especially in Europe. In one stage of his evolution, in the Politicus, Plato regarded that form of government as the second best solution, which could be established by studying foreign laws and by their thoughtful selection and harmonization.

As far as we are concerned, we must take into account that the mere grafting of institutions does not bear fruit. But, the reception of modern European legislation is awaiting us if we wish to approach that circle of countries, let alone to join it.

3. We must also learn from domestic experiences, where we can find some shining examples and good moral standards, but we must especially derive a lesson from our dearly paid failures so as to avoid their recurrence.

THE SIGNIFICANCE OF A RATIONAL AND STABLE LEGAL SYSTEM

If we analyze the basic factors of economic growth and prosperity in some countries, we can conclude that – apart from human and physical resources and financial incentives – the greatest yet insufficiently emphasized role is probably played by a favourable, rational and stable global system. It ensures the appropriate rules of the game, certainty and relative security and establishes only the basic framework within which an economic and social game can be played and socially accepted knowledge and skills can be used . In his work An Inquiry into the Nature and Causes of the Wealth of Nations (1776), Adam Smith wrote about the state, the division of powers and the rule of law. Likewise, his contemporary and compatriot David Hume wrote that democracy was not necessary for social and economic development as contrasted to the rule of law, since the former cannot be established without the latter.

Today, they write a lot about the theory of public choice for which two or three Nobel Prizes have already been awarded. In large measure, it concerns that global framework which we call the constitutional system or, to be more precise, the basic principles of a desirable legal system. But, naturally, these principles should be respected and not only proclaimed.

OBSTACLES TO THE RULE OF LAW

The Legacy of an Authoritarian Party–Ideological State

It is almost paradoxical that the very old idea of the rule of law, which was widely accepted by intellectuals, has been, and still is, met with great resistance. The greatest obstacle has always been posed by the government, which has always resisted restricting its political will or self–will by some rules. If anyone knows all that we do!

It was Plato already – whom we have already mentioned as one of the first supporters of the idea of the rule of law – who experienced and described in a picturesque way that which was to make one Englishman popular in the 19 th century. That was Lord Acton with his motto that “power tends to corrupt and absolute power corrupts absolutely”.

The legacy of a party–ideological state has not yet been surpassed and our society is still burdened and suffocated by octopus–like mafioso structures and phenomena.

The corruption of the legal and political system as an obstacle to the rule of law, should be understood in the same way as great classical political philosophers, i.e. as the contamination of the system by favouring the interests of individuals and groups that exercise power to the disadvantage of common interest. If the phenomenon of corruption is understood in this way, it can be determined more easily whether one system is corrupt or not. But, corruption in its conventional meaning, i.e. bribery, also distorts the system. This implies not only the usual, punishable acceptance of a bribe but also indirect bribery.

Altogether, the process of transformation of an “ ideological ” and “ party” state into a “ lawful” one, which could result in the establishment of a welfare state and the rule of law, has not yet been completed in our country.

In this context, it seems to us that democratic principles are betrayed when political leaderships determine who will actually become a deputy from among those chosen by the people. In real fact, these persons become party deputies and the system is in danger of turning into so–called partocracy.

This raises the question of the character of the electoral mandate. We all know some bad sides of the binding mandate in the so–called delegate system. Some important political philosophers have supported the idea of a free mandate, which a deputy can use according to his consciousness, conscience and political responsibility.

Moral and Legal Anomie and Lawlessness

A great obstacle to the rule of law is posed by moral and legal anomie, the flourishing of greed, acquisitiveness, stopping at nothing in pursuing some particularistic aims and interests, widespread abuse of power for personal and cliquish gains, not to mention other phenomena being the by–product or “unintentional” consequences of the initiated reforms, or the product of a corrupted system. This is assuming massive proportions and the law is often taken by persons clashing with it into their own hands.

In our times, these and other causes increased legal insecurity and made the status of man more uncertain. At the same time, the status of a great part of the population became even worse than in the pre–transition period. Many of them hold that the government does not guarantee even the minimum of security, which inspired Hobbes for his Leviathan.

As is well known in public, and the media also cover this problem, there are indications that organized crime has penetrated and corrupted certain segments of the government apparatus and police .

Among the underlying causes of poor respect for the constitution and laws were also those arising from their quality. Namely, the quality of laws and other regulations is inferior (i.e. low rationality, an excessive share of one's will or self–will, which is sometimes imposed through the parliament thanks to the vote of a minimal majority), which is also enhanced by frequent changes of regulations. So–called political voluntarism found its full expression in the assumption that political will, expressed in the form of law, can do anything. In demonstrating voluntarism, legal form was abused.

There are strong reasons (which are also cited in theory) against retrospective legislation (so–called retrospective effect), because it violates the principle of legality (or constitutionality). A year ago we read about the decision of the Constitutional Court of the Republic of Serbia, whereby this important legal principle was not only evaded but even invalidated, as dictated by political or financial reasons . Moreover, it was stated that the retrospective effect of a law would be possible if required in the common interest. Haven't we recently heard such an interpretation (this time, however, it did not come from the constitutional court)?

A Striking Discrepancy Between the Constitutional and Legal System and an Excessive Concentration of Power

The constitutional system of the Federal Republic of Yugoslavia (FRY) with two constituent republics is not consistent . One of the underlying reasons is that the constitutions, although adopted within a short period of two years, were adopted under different political conditions. The other, more important reason is the status of Serbia under its Constitution, which was not harmonized with the FRY Constitution, not to mention the factual political power, which was accumulated by the former Serbian President, who used his earlier position and unconstitutional situations to become an extraconstitutional factor. These issues have already been discussed at the LEX Forum on the basis of the papers presented by M. Pajvančić and S. Vučetić.

Here is one rather illustrative “case”, but the problem has not been solved up to the present. In 1990, when it had a two–thirds majority in the Serbian Assembly, the Socialist Party of Serbia brought the decision to restitute the nationalized property to the Serbian Orthodox Church. The President of the Republic put a veto on this decision, so that it had to be put to a vote once again (under the Constitution, the second decision had to be final). However, the Assembly never reviewed its earlier decision. This example shows that the decision of one person suspended the procedure concerning an important issue and that the will of one person derogated the will of the Assembly or silenced it. Some other decisions also show that the problem of denationalization has not yet conceptually been solved.

In his work “Conflict Between the Executive Power and a Lawful State” (in The Establishment of a Modern Democratic and Lawful State in Serbia ) , S. Vučetić points to the general tendency of the executive power to impose itself on the society and dominate over the other branches of power. The executive power can achieve this more easily than the legislative and judicial ones should they wish to do the same thing.

At scientific meetings, the experts who analyzed the relationships of the three branches of power at the republican and federal levels cited the examples showing that the federal and republican governments and both national assemblies had actually renounced many of their powers in foreign and domestic policy, leaving them to arbitrary decisions of the president for which there were no grounds, despite his omnipotence under the Serbian Constitution. In the opinion of experts, jurists and political scientists, one of the major obstacles to the functioning of a division of powers is the establishment of a superpresidential system, with absolute power but without institutionalized responsibility.

Some provisions of the federal Constitution open up the possibility of impairing legality by law, i.e. by allowing for exceptions in retrospective legislation, for example. It is stipulated that the law cannot have a retrospective effect, but that some of its provisions may have such an effect (!) “if so required in the public interest determined at the time of their adoption” (Article 117 of the FRY Constitution). The right of appeal is denied in cases which are specified by law and so is the possibility of filing a administrative lawsuit, as provided for by the constitution.

The constitutional provisions very often “ legalize ” the concentration of power as a political fact, i.e. the factual possession of power. This is also usurpation. Unrestricted power is now derived from the sources which either did not exist or were not so powerful in the past. Today, however, they are often the basic ones. They include political parties , but also quasi – party or mafioso – oligarchic structures of influence (assigning one's supporters to the positions where decisions are made or assets are disposed of); control over the expression of views , due to which the freedom of the press, or electronic media as more important, was requested; reliance on the army , police , church , trade unions and criminals; the source of power is also economic power, whether being held or providing support. As can easily be concluded, a great number of these sources of power has not been cited in constitutions as the source of power of some government official. Robert Michels argues that the leaders of 20 th century political parties behave like autocrats or oligarchs even if their parties fight for democracy. They behave in such a way that each of them can say: “I am the party!” (“Le Parti c'est Moi”). When they come to power, they quite often transform the “reasons” and will of their party into law.

The government always attempts to have legitimacy by referring to its origins, heroic deeds, role in the country's salvation or defence, in guaranteeing life, prosperity and the like. At times, the powerful ruler is attributed, through flattery or boasting, farsightedness or some absolute knowledge, which gives a justification to the “wise leader” to request obedience, and may lead to total control, that is, a totalitarian society.

A vital prerequisite for a lawful state and the rule of law are the division of powers and independent judiciary. And we know that some courts were under political pressure when it was the question of “ political ” cases. It will be very difficult to ensure independent judiciary, although many judges have so far demonstrated their concern about professional ethics and dignity. Moreover, a great number of judges left the judiciary, because they could not perform their function professionally and according to their conscience.

It is very difficult to execute judicial decisions. It is well known that debtors are favoured vis–ŕ–vis creditors and the same applies to some forms of ownership, although the Constitution equalizes all of them. This could be seen, for example, when some legal entities appealed to the constitutional court as injured parties, because a certain property (in social or enterprise ownership) was overnight proclaimed state ownership, taken away from them and given to a government agency to manage it. In initiating the relevant proceedings, the constitutional court would refer to the principle of equal protection of all forms of ownership, dismiss the action and conclude that the law was constitutional. In our case, however, it was clear that it was the question of circumventing justice.

Some Narrow and/or Wrong Interpretations of the Rule of Law

The views on the character of the rule of law, as well as on the content of lawfulness (legality) are widely varied and often quite opposite. We can speak about those categories in a narrower, legal–positivistic sense or in a broader, legal–philosophical and political–philosophical sense.

The principle of legality in a legal – positivistic sense is very important and must be included in those minimal criteria which a legal system must satisfy. Even this limited understanding of legality would contribute to legal security and certainty.

In a legal–philosophical sense, if we accept this limited understanding of legality, we can speak about the rule of law in the context of philosophical, ethical and political teachings and social, political, economic and other facts, which exert influence or are influenced by specified legal provisions or regulations. In this sense, the overall legal system is regarded as being based on certain ethical, philosophical and civilizational values, teachings about the nature and functions of law, and democratic procedures in establishing law or a law.

What renowned thinkers could learn from history is that power holders cannot be assigned with the task to restrict themselves by some rules, or be trusted that they will do that and not change the rules as soon as they become an obstacle to their aims. They sought a solution not only in the establishment of one set of legal rules, which would be adopted by a special procedure and be superior to usual laws (that which we now call constitutional law, while Boden called leges imperii , implying fundamental state laws). They also proposed institutional arrangements that would restrict one's power (i.e. assemblies of the estates and, later on, parliaments, division of powers, insistence on independent judiciary). In some of them we find the concepts of restricted government , which are derived from the theory of the nature of government in general (in Locke, power, or government, is restricted by the basic “natural” rights of man). The idea of these rights and their protection determines the character of a government and the extent of its intervention. This teaching provided a basis for the development of the modern theory of the rights of man.

We must also devote attention to a simplified and harmful interpretation , which can be heard almost every day, that the rule of law, or a lawful state, allegedly consists in the implementation of those laws which are in force in a given country. In fact, there is a great number of assumptions and elements that should be developed in order to bring the content of law or a law closer to the meaning of those categories in theory.

The benefits that, in its view, a regime may derive when its policy is based on the use of force or “the law of the stronger”, turn out to be temporary and illusory. It seems that history has confirmed the assumptions of political and legal philosophy that a system of rules, to be called law, must not break with the category of justice. This category should enable everyone to be rendered his own ( Suum cuique tribuere ). This justifies the legal system from a logical and historical viewpoint, although in this case it is easier to proclaim a rule than to implement it.

Today, the above mentioned is also included in the concept of human rights and freedoms. Rights and freedoms are regarded as the most important asset of a democratic system, as well as a barrier to any absolute power . In that sense, they are not only the object of protection in a lawful state, but also one of the basic criteria for determining whether a country is democratic and lawful. Here we can observe a close relationship and interdependence of the rule of law and a democratic system.

ON THE PRINCIPLES , INSTITUTIONS AND CONDITIONS FOR THE RULE OF LAW

Institutionalization and Constitutionalization in the Service of Restricted Power and Abolition of One–Man Rule

In real fact , constitutionality restricts power, regulates the relations between the government and citizens, and is an assumption and part of the institutions being characteristic of the rule of law.

Legitimate title, acquired at an election and entitling a person to exercise power, does not mean, however, that such a person can use power at his will and abuse it. Power must be based on legitimacy and legality and exercised in accordance with traditional democratic rules. In other words, power must be exercised in the spirit of constitutional provisions, rationally, with regard for the prevailing conditions and problems (situations) and in accordance with the proclaimed programmes and political promises, based on the principle of public interest. This means that democracy, constitutionality and the rule of law are interdependent to some degree. Under the principle of the rule of law, the will of the majority must not be arbitrary or omnipotent. Instead, it must respect certain rules and be restrained so as not to turn into the “tyranny of the majority”.

In the evolution of constitutionalism and democracy , the idea of the rule of law implied the restriction of any power in favour of the rights and freedoms of man and the citizen, and in the interest of a broader and open society. To this end, (1) the idea about some institutional guarantees (the division of powers, checks and balances, independent judiciary) was developed, whereby these guarantees were considered to be necessary to make man free vis–ŕ–vis the government, while at the same time preventing the government from becoming so powerful as to impose its will on the society; (2) human rights and freedoms were regarded as the limit which no government could cross arbitrarily, because it would delegitimize its role; (3) legislative power should also be restricted by law, by the constitution , and by some supralegal or metalegal values, while (4) a vertical and social dispersion of power (and might) should play a major role in achieving the above mentioned aims. In other words, all mentioned areas require an adequate institutionalization.

On the Nature of Laws Providing a Basis for the Rule of Law

Positive laws must meet specified requirements so as to be considered as laws in the true sense of the word. In democratic theory after John Locke, much attention was devoted to this issue.

The freedom under the law ( sub lege libertas ) was already a classical ideal and then a new–century European and Anglo–Saxon one.

As one more important principle for today, we can mention Kant's idea about the universalization of rules so as to be considered as such. The universalization of principles is regarded as a characteristic of the rule of law . It requires that every problem–case–situation should be regulated in such a way as to take into account the effects of a given legal solution should it become a general rule. This also means that a legal rule must be equal for all . We were faced with the situation when one group, party or ideology requested something that it itself was not ready to recognize or offer to others and vice versa. Groups and their representatives cannot propose some general rules and then request to be excluded. In political terminology and political relations this is called the “ use of double standard” .

Apart from universality and equality, the rule of law implies the idea of continuity or, to be more precise, the recognition of vested rights . A frequent and arbitrary change of rules, as well as an excessive regulation of relations, coupled with the limitation of the autonomy of the subjects of law, is contrary to this principle.

Today, the rule of law includes and embodies the most important civilizational achievements relating to the protection of man, human rights, institutional and procedural guarantees and rules, while democratic theory also requires an appropriate participation of citizens and constituent parts of the society in its guidance and the adoption of laws. They cannot be an expression of the mere will, or the will of the majority.

In view of the unification of law of European countries , we must also aspire to analogous legislation to the greatest possible extent so as to approach the civilizational standards and European legislation, that is, the European system of law, while at the same time taking into account our specifics, but only where this is well founded.

On the Character of Great Legal Principles

In the sense used in this paper, the rule of law is more an asymptotic ideal than reality.

Many sensible and rational principles were sometimes adopted as “legal principles”, while at times they are only cited as maxims or wise sayings, but their messages are the fruit of experience and wisdom.

Institutionalization of the Division of Powers Aimed at Their Restriction

A detailed account of this important aspect of the rule of law, based on experience, was given at the LEX Forum by Slobodan Vučetić. Here we wish to turn attention to some other aspects.

Namely, over time the theoretical foundations of the so–called division of powers have been expanded and this idea is now materialized through a much broader network of political and social institutions and forms, which constitute ( constitutio) a modern democratic and lawful state. It is more consistent with this idea to introduce checks and balances than the literally understood “division” of three traditional branches of power.

More recent views also anticipate the inclusion of the vertical dimension of the division of powers, i.e. their division between different levels of government.

What we now call political pluralism or multiparty system is also a specific foundation for the division of powers and its form.

To be modern and democratic, a country must include its constituent parts in the processes of government. This implies, at least according to the theories of consociated democracy in pluralistic or so–called segmentalized societies (multinational, multiethnic, multireligious), the existence of institutional arrangements and constitutional forms of power–sharing of such groups. This should also be reflected in election laws and the structure of specified bodies (which usually refers to representative bodies, as well as to the bodies of the executive power and administration, where power–sharing must be at least proportionate to the share of these groups in the population of a given country).

When a coalition government is formed with the former opposition , such an arrangement also implies the division of powers. When power at one level or in one institution is exercised by representatives of one political party, which won an election at this level or for this institution (e.g. for the president of the republic) and power at some other level or in some other institution is exercised by representatives of another political party, this is also regarded as the division of powers. In principle, such cases restrict power and may prevent it from becoming absolute, but such arrangements can also be manipulated.

All things considered, a lot in social and political life, as well as in the character of the current legal system depends on the prevalent political culture and the rules of a political fair play.

II
WHAT TO CHANGE, HOW AND IN WHAT DIRECTION?

THE BASIC AIMS AND DIRECTIONS OF CHANGE

Our entire legal system must be laid on a new and modern foundation as regards the relevant principles and institutions, and the same applies to certain large areas or branches of law. What one should always keep in mind is a need for the provision of better guarantees of civil rights and liberties, the establishment and development of an open civil society and adherence to the principles, institutions and procedures ensuring the legitimacy of the entire system, as well as of specified acts and measures. A general tendency should be the one that has already been proclaimed and praised. However, we had an opportunity to convince ourselves that it was not followed. It is expressed by the slogan that everything is allowed unless explicitly forbidden by law for valid reasons. Adherence to such a philosophical approach would also anticipate so–called deregulation. The legal system should enable a sufficiently broad and liberal framework for entrepreneurship, and should facilitate transactions.

Of great importance for the rule of law is procedure, that is, fair process on the whole and in each individual branch of law, based on its specifics. In Anglo–Saxon law, it is called “ due process of law ”. It is especially important in deciding on human rights and on elections, in parliament, in the process of adopting a law and in other similar situations when adherence to a specified procedure enhances democracy and the rule of law. From the viewpoint of the rule of law, for example, the proposals as to who would have the right to vote in the referendum in Montenegro (should it be held) seem to be very defective. A similar evaluation could also be made for some earlier plebiscitary expressions of views in Serbia (and in some other ex–Yugoslav republics).

The constitutional provision that national law governing human rights and responsibilities should be harmonized with international law and Yugoslavia's obligations under international agreements should be institutionalized and applied in practice. The Constitution also laid down the principle that the provisions of international law and Yugoslavia's contractual obligations should be directly be applied by courts, but this is not so in practice.

Once the conditions are created, the above mentioned direct application will also refer to the regional European system of human rights and their judicial protection.

Things are also not so simple when the implementation of international rules is in question. So, for example, the international Convention on the Reduction of Statelessness, adopted in 1961 with a view to reducing dual citizenship, makes the solving of the problems arising from the disintegration of the former socialist federations more difficult. Namely, the current situation requires that in solving the problem of statelessness one should also take into account the actual status of stateless persons. Otherwise, the Federal Republic of Yugoslavia has not ratified this Convention.

Political institutionalization means that institutions will really perform the roles assigned to them. Institutionalization – instead of an excessive share of personal will or self–will of some power holder – requires that institutions, as the centres of decision – making , should be impartial and capable of making a clear–cut distinction between personal views, relationships and property, on one side, and public authority and responsibility, on the other.

Political and Constitutional–Law Reforms

There is no doubt that all major branches of law (so–called positive law) need a thorough reconstruction, while the basic ones, especially constitutional law, need it urgently.

Constitutional law must be harmonized and reformed. This applies especially to those parts which concern the protection of rights and freedoms, electoral rights, freedom of association, freedom of information, autonomy of numerous entities under the constitution, territorial–political organization, possible regionalization and, in any case, local self–government, not to mention numerous parts that could not be implemented due to systemic obstacles or political will and self–will. This concerns, for example, certain basic institutions (probably parliamentarism instead of a superpresidential system, different election principles and laws, laws ensuring the freedom of information, thought and expression, i.e. the freedom of the press, better guarantees for adherence to the habeas corpus principle, greater role of courts in the control public administration and the protection of civil rights, as well as other rights that will be discussed in further text).

One of the greatest constitutional–law and political reforms should probably be the one that will substitute a presidential or superpresidential system for a parliamentary one. In the so–called post–communist countries of Eastern Europe and the former Soviet Union, presidential or semipresidential systems have been established. It is often said that in certain circumstances, such as general insecurity, uncertainty, potential social and ethnic upheavals, as well as the difficulties associated with so–called transition, it is necessary to concentrate power in the hands of one person. However, renowned experts, who study the process of so–called transformation from authoritarianism to democracy in South America and Eastern Europe, argue in several papers that in such a process parliamentarism has various advantages, as opposed by presidentialism which carries more dangers.

In a parliamentary system, where the legislative body is a relatively adequate expression of the influential forces in the society, various forces, including moderate and the most intelligent ones, may exert influence on public policy. In this regard, a significant role is also played by the freedom of expression , freedom of discussion, right of initiative (where this right exists) and institution of the deputy's question and interpellation (which are not anticipated in the Federal Republic of Yugoslavia and the Republic of Serbia). These and many other institutions, which should be introduced, were presented in more detail by Professor Marijana Pajvančić in her paper.

It is widely practiced to take away that which was given by the constitution by laws or even by sublegal enactments. This is still happening here.

The constitutional provisions concerning civil rights and liberties are directly implemented, as stipulated by the constitution. This is a good solution which, to some degree, strengthens security against the abolition of constitutional rights and freedoms by law. Thus, it is requested that the rights and freedoms, which are specified by the constitution and directly exercised (i.e. without prescribing the method and conditions concerning the exercise or denial of those rights by some law), should be expanded. However, such broad–based requests are in contradiction with the well–known assumptions of legal theory and constitutions, as fundamental legal documents, that the text of a constitution must be as concise as possible and that its rules must be expressed in a lapidary style and changed as little as possible so as to ensure legal stability.

It is normal that laws regulate only the method (procedure) by which constitutional rules are to be implemented and not the content of freedoms and rights. The laws governing this issue should be included in the group of laws to be adopted by a more complex procedure, thus making their modification more difficult and ensuring a better protection of rights and freedoms of citizens. To this end, it will be necessary to make provision for the institution of constitutional complaint on a broader basis, thus enabling adequate proceedings before constitutional courts when the violation and protection of human rights and freedoms are in question.

We already have a number of good projects , ideas, analyses and recommendations relating to constitutional, political and legal reforms in the Federal Republic of Yugoslavia and the Republic of Serbia. They support the principle of the rule of law, division of powers and checks and balances. There are also many other proposals concerning the democratization of the country and the improvement of the status of citizens, i.e. their rights and freedoms.

Some of these projects anticipate the “High Council of Judiciary”, “Legal Council” or a similar institution, which should strengthen the status and independence of courts and judges by increasing the influence of professional organizations on their election, improvement and removal from office.

Under this project, the president of the republic would assume the role of a traditional, representative head of state, who is elected by the national assembly and whose responsibility is institutionalized in an adequate way. In an attempt to strengthen the responsibilities of the president of the republic and the government, it is proposed to establish the institution of the countersignatures of the prime minister and relevant ministers on presidential acts and decisions. In this way, the government will not be able to evade responsibility for the acts of the president of the republic.

Several projects anticipate the institution of ombudsman , general and regional, while one project anticipates a special ombudsman for minorities, too . In this regard, we wish to point to the need to support such an institution, which has already displayed its advantages in some Scandinavian countries. With appropriate modifications, it was introduced in other Scandinavian countries, as well as in some other countries as an institution, established by law, which investigates citizens' complaints against bureaucratic abuses. It is highly probable that a special law on the ombudsman will be adopted.

The rights of minorities (ideological, political, religious, ethnic, etc.) serve as a correction of the principle of the rule of the majority. It would certainly be necessary to pass the law on the protection of minorities , which would codify everything that already exists in constitutional provisions, international agreements and other binding documents of international law, as well as to consider very carefully, and incorporate into such a law the best viable ideas, which are turning into specified civilizational standards, although they are not a part of international law. The experience of the minorities living together in Vojvodina may serve as a good example. This also applies to their problems and proposals, because the most important ones do not call the country's territorial integrity and sovereignty in question.

Yugoslavia, under one project, and Serbia, under another, would have a bicameral assembly. In the first case, the National Assembly would be comprised of the Chamber of Citizens and the Chamber of Regions , while in the second, the Serbian Assembly would have the Senate as its second chamber, which would represent the provinces and regions. Under the first project, some regions would also have bicameral assemblies .

A Need for Decentralization and the Development of Local and Regional Government and Self–Government

The municipalities in Serbia have very limited competence and financial resources . Only one republican law, enacted under the constitutional law amending the constitutional law for the enactment of the constitution (there are several such laws) transformed the earlier social property into state one, including the most important resources which, under the earlier laws or on the basis of even older rights, belonged to municipalities.

A number of papers, scientific meetings, researches and pleadings for regionalization point to an excessive centralization of power in our country, which prevents local (and regional) self – government and, probably, rational use of many centrally managed resources. Resources are not only used (usus) but are frequently abused (abusus) by power holders . In other words, they are appropriated either directly or through the misuse of political power so as to acquire a monopoly position or privileges in the disposal of resources in urban areas (i.e. business premises, building land, licences for heightening a building), or in enterprises whose managers or owners are political figures. This is a common practice despite a constitutional ban and the law forbidding explicitly to any member of the government to be an enterprise manager or hold some other public office.

In the theory of democracy and constitutionalism, local and regional self–government is regarded as an important element of the vertical division of powers, which serves the already mentioned purpose. In view of their size and limited terms of reference, it can be concluded that the municipalities and districts in Serbia cannot perform successfully the role of a regional government body. In addition, there is no possibility that municipalities might perform the role of local self–government. Districts are a form of deconcentration of power, i.e. non–central organs on which the central power has a decisive influence. In practice, municipalities are deprived of many activities and sources, which are usually meant for local self–government in advanced countries.

Over the past years, they have been writing about regionalism and regions and, as of late, about cantonization and cantons in our country. Spatial, economic and some technical and technological reasons, especially those which are linked to the development of infrastructure, environmental protection and the like, in addition to some reasons linked to multinational communities – speak in favour of regionalization. Considerable attention attached to this issue was also the result of its significance in the context of European integration. It is assumed that the region is probably that form of territorial organization which is sufficiently broad to satisfy many needs that cannot be satisfied at the local level any more, and which is still sufficiently large to organize different forms of social life within its framework. It can also be politically strong and have a large constituency, thus becoming some kind of counterbalance to the central power. At the same time, it does not pose a threat to the country's territorial integrity. Regions may also be suitable for solving various educational, linguistic and other problems where the ethnic, linguistic and religious composition of the population requires the adjustment of government organization so as to be included in political and cultural trends more adequately.

Just as the idea of the division of powers implies the inclusion of a vertical dimension in this division, because every authentic local and regional self–government and autonomy actually mean a dispersion of power, or the restriction of central power so as to exercise its competence as provided for by the constitution, local/regional self–government may represent an important element of democracy in the state and society.

In order to ensure the desirable democratic effects of decentralization, it is necessary to devote special attention to the following: 1) due to their nature, local activities must fall within so–called original jurisdiction and not only those transferred from the central bodies, thus remaining under their full control as regards decision–making, because the control of legality of decisions by higher organs is implied; 2) the division of jurisdiction should be based on legal grounds (primarily on the constitution) and should not be the product of political (self–)will, because in that case its duration will be uncertain; and 3) self – government , i.e. the participation of the population and other entities in government or in choosing those who will govern, as well as in decision–making concerning their life in a narrower community, should also be exercised through those forms.

In order to strengthen local and regional self–government, it is necessary to define precisely the status of the principle of subsidiarity in the system. Under this principle, a certain right, i.e. a legal procedure or rule will be enforced only if someone else fails to act as prescribed by such a rule, or if that first right (in an objective sense) proves to be insufficient (in an administrative procedure, the principle anticipates the application of general rules to those issues which are not regulated by the laws on special procedures). In the other sense, this principle means that whatever is rational should be carried out at the lower level of territorial–political organization; there is no need for its centralization at some higher level.

Changing the Legal Framework for Social and Economic Transformation

The insufficiently defined terms “transition” (which is similar to an expression used in the past – “transition period” – only the directions of change are different) and “post–communism”, which also does not say much, denote a radical social and economic transformation , transformation from collectivistic and political – directivistic principles of central planning to more individualistic principles and greater freedoms of private enterprise, as well as greater respect for private ownership . It seems that in some declarations this process is not so disputable. But, if one considers its basic principles and policies and, especially, its effects, i.e. reality, one can also observe some essentially anti–reform moves and more or less radical reforms. It is not only the question of the so–called welfare function of the state and the fulfilment of its obligations, assumed under the earlier system towards certain segments of the population, including the principles of full employment, occupational safety, unemployment benefits, health care, old–age pension insurance and the like due to which the state, that is, the government face the problems which impose the tactics (!) of retaining a large measure of control over economic activities and monetary flows by using fiscal instruments and a direct managerial role, too. This can probably be most clearly illustrated by differences in the concepts and the conceived or conducted policy concerning some key issues which have already been mentioned, i.e. privatization, denationalization, use or evasion of the logic of a market economy, etc. It seems to us that there is also something else at stake. The state is not eager to deprive itself of the possibilities and “rights”, based on “laws” being formally in force, to control the society and citizens not only by means of power, i.e. imperium, but also by means of property, i.e. dominium . There is no doubt that this enables a much higher concentration of power and more efficient control over the population by one person, not to mention greater privileges of those controlling those mechanisms, so that they can be not only public officials, ministers and the like, but also the managers of enterprises (or their divisions) which are allegedly in public or state ownership. Like in many other respects, our society is the victim of a long authoritarian and statist practice, which has already cost us so dearly, probably even before the communists came to power and presented something that was harmful to our society and economy as a virtue. Here is the example showing how, due to such a tradition, we still do not have a genuine civil code, an instrument without which the above mentioned process of transition is inconceivable if we wish to conduct it under the regime of some rule of law.

It is necessary to modify and codify civil law and procedure, i.e. the right of property and other rights in rem, contract law , commercial or business law, financial law, law of banking, etc. although, in our opinion, the best solution would be to incorporate all this by the civil code. Regardless of whether it is the question of one or more laws, it is necessary to revive the classical civil–law institutions. This also implies a system of norms, which regulate the so–called economic system and enable free enterprise and the functioning of a market economy . This should return the character and role they have in advanced market economies to the institutions of property , contract and other instruments used in legal transactions. Since many rules are optional, i.e. they are applicable only if not otherwise agreed by the subjects of law, they expand the area of freedom which was earlier occupied by mandatory provisions and numerous restrictions, exclusions (from transactions, from ownership, from civil law, etc.), as well as the provisions introducing new forms of deprivation of property and restrictions of the use and usufruct of property. Respect for the right to the peaceful enjoyment of property, including so–called vested rights, would automatically be restored in the case of a modern codification of the entire body of civil law. This would also change the system of keeping real property records and restore the registration principles, while land registers and other documentation instruments would be taken from the municipal administration and returned to courts.

Experts point to legal gaps in the area of property law, which affect legal security and certainty . This points to the need to adopt the civil code urgently if we really aspire to a market economy, The current constitutional provisions, which equalize all forms of ownership, should be secured in practice by all relevant legal and factual instruments (and this also implies bankruptcy, mortgage and many other institutions). Many good solutions have already been incorporated into contract law , but they must also be expanded to the areas and issues beyond that narrow scope left by a statist, socialist and administrative system to political parties for free regulation. Today, many countries single out so–called commercial or business law . Since the present FRY Constitution – like the Constitution of former Yugoslavia – divided the jurisdiction of the federation and the constituent republics over the regulation of this area, it will not be easy to make a uniform codification of the entire area, although this would be consistent with that rationality we talked about at the beginning.

One must not allow that legal solutions favour the system ruled by the principle that property belongs to the holder of power!

Criminal Law and Procedure Concern the Fundamental Human Rights

A tendency towards the uniformity of criminal law in Yugoslavia has been present since 1951. Today, however, we have a great number of regulations, including sublegal enactments, which actually regulate this issue. Regardless of legal “rationalizations” and solutions how to present certain types of punishment as not being criminal ones but something else, e.g. offences, this easily violates the most fundamental rights (to life and freedom), thus strengthening the authoritarian features of the regime. Let us cite this example: last year, a newspaper editor had to pay a fine. This fine can be substituted for the punishment by imprisonment. At the time the aforementioned punishment was pronounced, it was calculated that, should the newspaper editor fail to pay a fine, every 60 dinars would mean spending one day in prison. This fine was so high that, should it be substituted for imprisonment, the punishment would last 54 years. Regardless of whether an offence was committed or not, the question that imposes itself is whether this is an “offence” if it was penalized so harshly. Such offences, which are actually treated as the most severe criminal acts, judging by consequences, are regulated by sublegal enactments. Apart from all other absurdities, the important principle – nullum crimen, nula poena sine lege – which was also laid down in our constitutions, was also violated. Thus, the codification of criminal law is indispensable.

Criminal procedure requires more radical and more urgent changes than so–called substantive criminal law although, as we have just seen, it requires them, too. Although the present FRY Constitution provides for a certain degree of protection of individual rights with respect to procedural–law guarantees, they have no practical value if they are not used. The current legislation concerning procedural–law guarantees has not been harmonized with the Constitution, which anticipates that its rules should be directly implemented. In case of their conflict with the provisions of the earlier laws, the latter will be applicable (these laws have been adopted by constitutional laws for the enactment of the constitution) would be applicable. Thus, the provisions of an old law have suspended the provisions of the new constitution .

You know that the reform of civil procedure is underway. On the basis of what can be heard in public, it can be concluded that it is making a good progress, anticipating new guarantees and improving the status of the citizen in such a procedure.

Ensuring that the Government Administration Becomes a Public Service and the Citizen Protected before Its Agencies

The citizen is in daily contact with the government administration, personified in its representatives (policemen, officials), acts (orders, bans, etc.) and activities of administrative agencies. What concerns him directly are numerous administrative acts , that is, specified legal acts, which may represent the declarations of intention by government bodies or officials, establishing some obligations and containing the orders which must be obeyed by citizens or, in the opposite, will be executed against their will. Of the greatest direct concern of citizens is also the character of due process of law , including the performance of all relevant legal acts and deeds, as well as the status of the citizen in such a procedure, especially when some acts are executed against his will. This refers especially to those acts whose execution may generate serious effects on bodily integrity, life, freedom, property and other values of the citizen. In other words, the general character of so–called administrative law and the specified provisions of both substantive and administrative procedure law will determine, for example, the status of the citizen in so–called preliminary criminal proceedings, i.e. when he is taken into custody or called only for interrogation (i.e. the powers of the police in carrying out a formal investigation) and on other occasions when he finds himself before the government administration (ranging, say, from the offence committed by one's crossing a street outside pedestrian crossing to many other possibilities for one's clashing with law, that is, with a law enforcement officer).

What are the rights and duties of the citizen in this vast complex or labyrinth of relations; what procedure is anticipated and what are its institutions, including the ways in which the relevant facts will be established and general regulations relating to specified legal facts be implemented?

The degree and nature of legal uncertainty in this area of law can be illustrated by one fifteen–odd years old provision being still in force. Namely, government bodies are not time–bound as regards instituting proceedings against administrative acts. If we take into account a rather liberal interpretation, which allows the retrospective effect of legal rules, the potentially combined and cumulated impact of these “provisions” could be reflected in the fact that nothing established and “judged” in an administrative procedure can be considered as a fact, because everything depends on the new initiative of the administration and there is no time–limit for initiating new proceedings.

The Legality and Control of the Work of the Police

This is a very important issue in the area being observed. At one time in Germany, when the idea of a lawful state was developed, it was based on the need to eliminate the so–called police state, or a state that gives a free hand to the police in dealing with citizens. It is necessary to provide better guarantees for the status of the suspect, the person taken into custody and the defendant. It is necessary to repeal all unconstitutional provisions of the regulations governing these issues. This also applies to the punishment of the abuse of authority by the police. From this viewpoint, it is necessary to review and change all rules of procedure and other general enactments concerning the status , organization , authority and actions of the police. This also requires control of its work by political, representative, i.e. legislative bodies of government (assembly, parliament) through specified bodies (committees, councils), as well as the internal structure so as to serve the highest principles of the rule of law . Both the police and public administration must become a public service , but the proclamation of something a public service can be just the use of empty words, because the spirit of a public service must be cherished. This means that it must be based on trust and respect, which cannot be proclaimed or imposed but only deserved.

How the cases and limits of the permissible application of coercion are regulated; whether and how the abuse of force has been restricted; how efficient are the guarantees against overstepping one's powers in the use of force and the like – all these questions are of utmost significance for the citizen. Some important forms of implementing the great legal principle of habeas corpus find their application or are violated just in those spheres of life which are regulated by administrative law, or legal provisions regulating the rights and responsibilities of administrative agencies. The situation in this area is bad and opposite to those values, rights and freedoms of citizens which are stipulated by the present Constitutions (federal and republican). It would be necessary to institutionalize more adequately the protection of citizens before administrative agencies and the basic guarantees of such protection. Therefore, we need the reform of administrative law and procedure, the exercise of the right to a defence lawyer in all stages of all proceedings and other forms of exercising the rights promised by the constitution, as known by jurists.

The rule of law is incompatible with the deprivation of freedom of those persons for whom it cannot be said what unlawful they have done and against whom appropriate proceedings have not been initiated or charges brought. We already had such a practice on a large scale in former Yugoslavia in certain periods, as well as in present–day one. The substitution of any form of police rule for the rule of law is something without which civil rights and liberties are meaningless. This means that constitutional declarations of the rights also mean nothing.

In this area, it would be necessary to expand judicial control over the acts of the public administration and, especially, of the police; to expand the application of the so – called administrative lawsuit; to make a careful analysis of those issues which are exempted from such control and lawsuit, and to be very restrictive as to what cannot be the subject of such a dispute because, in principle, nothing that concerns the status, rights and freedoms of citizens should be exempted, thus preventing courts from saying the last word. It would also be necessary to revise or change the law on government administration, as well as the law on employees in the government administration, while certain rule of procedure should be strictly adjusted to the constitutional provisions on rights.

It is necessary to depolitize public services and introduce specified ethical codes into all sectors of these services and the police, in addition to technical and other facilities for enhancing their efficiency to the benefit of citizens and the state, and improving the safety of their employees while performing their obligations and exercising their authority, as stipulated by the constitution and relevant law. Internal discipline and responsibility, as well as the retraining measures should be harmonized with the above mentioned aims.

Independent Judiciary Requires the Change of Judicial Law and Other Measures

Courts have an important and delicate function because, after all, they are the only bodies that have authority to penalize or, in other words, to decide on the deprivation of one's most important values, from property to freedom and, exceptionally, life. It has already been said that independent judiciary is a vital prerequisite for a lawful state and the rule of law. At a scientific meeting in the Serbian Academy of Sciences and Arts, which was concerned with the current situation and prospects for the establishment of a lawful state, Momčilo Grubač (“Independent Judiciary and a Lawful State”) described in detail the unsatisfactory condition of the judiciary in Yugoslavia and obstacles to the implementation of the constitutional provision on independent judiciary. Slobodan Vučetić wrote several papers on this topic (“Awaiting a Lawful State”, “Independent Judiciary – the Foundation of a Lawful State”, “Government by Decrees”).

Dr Zoran Ivošević, an authority on the judicial system from inside, described concisely the situation and put forward various suggestions and proposals, including the requests for changing the character and types of higher and lower courts, as well as the status of courts and judges so as to ensure independence , expertise , permanence and immovability . He also pointed to the incompatibility of the function of a judge with some activities and offices. Reforms should guarantee the independence of courts and judges and the application of the principle of a free opinion by a judge. All this also includes the method of forming the court budget and many other issues. Ivošević also made the relevant analysis for this LEX Forum.

Judicial decisions are not enforced and this is mentioned in several studies as an obstacle to the implementation of constitutional and legal provisions, and the protection of civil rights and liberties. The worst of all is that the people are in an unequal position, since some are protected by judicial decisions and their enforcement, while others, whose rights are also protected by judicial decisions, are left to wait and quite often do not live to see the enforcement of the judicial decision and restitution of their rights.

The modification of the judicial decision against which the defendant lodged a complaint to the detriment of the latter ( reformatio in peius ) is incompatible with so – called legal principles , whose authority is derived from the reasonableness and wide acceptance of the principles by serious legal practitioners. Any deviation from such a principle is also forbidden by our laws, but if the prosecutor also lodges a complaint, it is not always easy to know whether it is the question of “revenge” or a decision based on the state of facts.

Courts will win independence slowly and with difficulty . For a long time, their election will be under the influence of the same persons against whose acts they would often had to make decisions or violate the law wishing to protect or please local officials. Apart from the problems concerning the election and permanence of judges, the problems also arise due to the fact that courts work in poverty, facing all forms of corruption, abuse and pressure, to which not only individuals but also the entire system of administering “justice” are susceptible without a strong support of the society. Despite our skepticism that courts will win their independence fast and easily, we still think that one must work on it and insist on it more than on any other institutional solution. In our opinion, the Federal Constitutional Court should be more active in accepting the initiatives for initiating proceedings and be equipped in an adequate way (with qualified personnel and necessary resources) so as to exercise its jurisdiction over the complaints lodged against the violation of the freedoms and rights of man and the citizen by an individual act or deed, as specified by the Constitution (Item 6, Article 124 of the Constitution of the FR of Yugoslavia). In this way, this highest judicial body would also be put into the service of control of constitutionality to the benefit of the constitutional system and citizens.

Concluding Remarks on the Character, Scope and Methods of the Proposed Changes

Although the aim of listing only some branches of law is clear from our approach, it can be seen that the major changes concern: (a) the government organization, its sources, structure, rules of functioning, rights and responsibilities; (b) status of the citizen, constitutional regulation of his rights and freedoms; (c) appropriate institutional and legal guarantees and possibilities concerning the enjoyment and protection of rights, including the right of property , which anticipates the freedom of business initiative and regulates a market economy. Within such a thoroughgoing reform, that is, a revision or codification (some experts also speak about consolidation), it would be necessary to carry out deregulation in various areas where – as the relic of a party–ideological state, or as a result of the government's statist orientation, the rights are too restricted, denied or usurped (e.g. local communities, subjects of the former social ownership, which was transformed into state one, while government bodies became its managers by a single act).

The extent to which law will be respected depends on how much it satisfies the needs for regulating relations among the people, contributes to the settlement of conflicts, enables the exchange of goods, services and ideas, and ensures that such an exchange is carried out without hindrance and under human conditions, and, to a lesser degree, on the severity of sanctions. To be rational, law must provide a sufficiently broad framework for so–called legal transactions, which is only the reflection of other forms of transactions, or exchanges among the people. The content of law will depend on the legislator's quality and his recognition of the need that law should be an instrument that facilitates (or aggravates, if the legislator fails to recognize the mentioned needs) the above mentioned transactions. Instead of prescribing all issues by law, it is much better and more important to establish a rational legal system so as to allow for a suitable framework for normal life.

It determining what should be removed from the legal system and what should be added to it, it can be said in general that it is necessary to develop or introduce everything that enhances human rights and freedoms, a stable legal system and a liberal political system, social, economic, political and cultural pluralism, as well as an open civil society with a liberal political culture and respect for differences, competition (contests, disputes), tolerance, dialogue and compromise as the ways of reaching an agreement. Those are important preconditions for the political guarantees of human rights, for a fruitful consociation of different ethnic groups, for the creation of conditions for the rule of law and the functioning of the system based on the division of powers, i.e. reciprocal control of the three branches of power, as stipulated by the constitution and law. By pluralism we understand not only a multiparty system, but also the pluralism of autonomous economic , cultural and political associations , enterprises , trade unions , ideological , cultural and religious groups and beliefs , autonomous universities , free and responsible media (which means that they are not under the unilateral influence of the government or one political party, but are very responsible as regards the investigation of facts and the publishing of the truth). Only an advanced society can become really pluralistic and the citizens relatively independent from the government in earning for their livelihood. In a political sense, pluralism anticipates a political opposition, political fair play and the rules of parliamentarism (not only in parliament), criticism of the government in parliament and in the media, all of which is probably the best guarantee of human rights and the right track to provide conditions for all citizens to express their interests, feelings and views in a tolerant atmosphere. For all this, the division of powers is an indispensable institutional arrangement and the rule of law a vital prerequisite.

It is wrong to believe that one can fulfil all wishes by means of law. One must understand that law has its limits, that it must refer to that which is possible and that it is first necessary to create many conditions for certain distant visions. Until then, law must be used in accordance with its basic aim – to enable people to enjoy peacefully that which is possible at a given level of their knowledge and technology, and to protect them from the greedy , tyrants and usurpers . The last ones especially like to appropriate and privatize the state, because it offers greater possibilities for privileges than the possession of any means of production.

In order to establish the rule of law – apart from the new content of legal provisions – it is necessary to provide some non–legal, that is, social, political and economic conditions. However, this will not be easy because our country and other post–communist countries, with some partial exceptions, are characterized by (1) the lack of a democratic tradition and institutions; (2) patterns of authoritarian political behaviour , as well as an authoritarian political culture, featured by national and religious intolerance; (3) a need for the development of a civil society in the majority of these countries; (4) numerous entrenched relics of oligarchic and bureaucratic structures and interests , which are still defended by ideological rationalization, by using new categories yet old patterns. Considering all this, the rule of law will be the matter of a more distant future.

In order to improve the situation in our society, we must begin calling all things by their names, which means to jurists that each phenomenon, which is relevant for legal relations, must be qualified in an adequate way. This is what Confucius's famous attempt at the rectification of names was about. In other words, it meant calling all things by their names. The establishment of legality must also begin with the introduction of correct and precise legal terms, qualifications, rational criteria and regulations, with greater freedoms within the limits of law, and not only with punitive provisions and sanctions. In many countries, including our country, jurists must restore the vocabulary of the law, rectify legal terms and remove the nebulous groups of words, which are not based on reality or any thoughtful and rational legal command.

Individual and collective civil courage is necessary and so is the support of the colleagues of the same profession for establishing “legality” in a legal–positivistic sense, as well as for the rule of law.

Theoreticians are probably right in assuming that man has an inherent need for order (nomism), which is the expression of his even older need for certainty. However, the established orders may be so unjust or despotic that resistance to them is not only frequent but is also philosophically justified . Theoreticians have also been concerned with civil disobedience and resistance to those laws which, despite having the anticipated form, contain the commands that are evidently opposite to “law” as understood by the human mind in the objective sense of the word. The idea of civil disobedience and resistance to an evidently “non–legal law” is permeated with contradictions when we consider the principle of the rule of law, and poses a great challenge to jurists who must apply the system of rules (laws). The so–called right to disobey unjust laws cannot be derived from positive law (an exception was stipulated by the Constitution of the Weimar Republic but it did not prove to be effective in the context of the existing legal system and subsequent totalitarianism). Therefore, in human conscience, in ethical and religious teachings, as well as in moral, legal and political philosophy there are both moral support and grounds for “supralegal law” and for resistance to “legal non–law”, as this problem was viewed by Gustav Radbruch. Many well–known theoreticians and humanists have given their support to the idea about the right and even a moral obligation of civil disobedience in specified circumstances, especially if laws cause harm to the interests of a political community, or do not provide institutional possibilities or legal methods for the abolition of unjust laws.

The moral autonomy of jurists is an assumption for a free opinion by a judge, which does not apply only to judges . The jurist must be ready to say NO , if his professional knowledge and conscience tell him to do so, even if everybody says YES. Therefore, we also need individual civil courage and joint support of the people having the same profession so as to establish legality and the rule of law.

One must also be aware of the fact that social and political tensions, caused by economic problems and widespread poverty, uncertainty about the future of certain parts of the country , possible conflicts over power and political dangers that may come from the surroundings or be caused by riots, may also cause conflicts that would result in the further violation or abolition of the constitution, thus slowing down or postponing democratization and the establishment of the rule of law.

All things considered, many democratic ideas and principles, due to double standard according to which they are interpreted and applied, began to look like the mere ideological schemes and fabrications. One author with theological and legal education, who supports ecumenism and the joint life of peoples of different religions, writes that – in pursuing their own interests – great powers or richer countries aim at crumbling all structures in small countries, which is regarded by their population as a threat to its freedom and even to its survival. Fear is a suitable ground for uniformization, for a mass society, for manipulation and discipline aimed at establishing order and for political authoritarianism. It is evident that in such a situation, decentralization and the dispersion of power, both of which are preconditions for the rule of law, as well as local self–government may seem to someone as the fragmentation, splitting or weakening of the state.

A significant advantage of changes oriented towards the establishment of the rule of law – although the latter requires big and radical reforms – lies also in the fact that once the concepts and institutions, which should be supported, are clear to us , it is possible to effect partial and gradual changes. In other words, those involved and experts can – in considering each law and decision – conclude easily what is not in conformity with the basic conceptual and constitutional commitment to the rule of law, so that each case of deviation can be criticized and rectified if possible. This is not so, for example, when the change of the economic system is in question, because one segment of the system cannot be improved without changing all other segments.

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The Rule of Law and the Building of a Lawful State

I ON THE CHARACTER, PRINCIPLES AND INSTITUTIONS THE RULE OF LAW AS A CIVILIZATIONAL ACHIEVEMENT

II WHAT TO CHANGE, HOW AND IN WHAT DIRECTION?

Criminal Law and Procedure Concern the Fundamental Human Rights

I
ON THE CHARACTER, PRINCIPLES AND INSTITUTIONS THE RULE OF LAW AS A CIVILIZATIONAL ACHIEVEMENT

II
WHAT TO CHANGE, HOW AND IN WHAT DIRECTION?