American Jurisprudence of the 20th Century

Novi SadAssociation forTheoryEthics andPhilosophy of LawAmerican Jurisprudenceof the 20 th CenturyProf. Agneš Kartag–Odri, PhD, and prof. Gordana Vukadinović, PhD,editorsNovi Sad, 2007

2Published byThe Novi Sad Association for Theory, Ethics and Philosophy of LawEdited byProf. Agneš Kartag–Odri, PhDProf. Gordana Vukadinović, PhDBoard of editorsMira Gur–Arie, Washington, D.C., USAGordana Vukadinović, Novi Sad, SerbiaAgneš Kartag–Odri, Novi Sad, SerbiaDuško Vrban, Osijek, CroatiaMarijan Pavčnik, Ljubljana, SloveniaTechnical assistantsBiljana KneževićGordana MitrovićMarko BožićPublic relations managerBranko TucakovComputer design and productionVladimir Vatić, Predrag RakićTypesetKrimel, BudisavaCopies printed: 200The publishing of this book was aided by:The USA Embassy in BelgradeThe Executive Council of the Autonomous Province of VojvodinaThe Municipality of Sremski KarlovciGeneral sponsorSIM doo, Novi Sad, Branka Bajića 10Sponsored byKONZUL doo, Novi Sad, Stevana Musića 1

3Dear colleagues,ladies and gentlemen,respected guests from abroad,Opening SpeechProf. Gordana Vukadinović, PhDIt is a great honor and pleasure, on behalf of the organizer, the Novi SadAssociation for Theory, Ethics, and Philosophy of Law, to open the meetingentitled American Jurisprudence of 20 th Century.On behalf of our Association, I would like to welcome you all and towish you a pleasant stay in Sremski Karlovci, successful work, and joyful mood.Dear colleagues,Please allow me, from the position of presiding person, to present you theWorking presidency:Dr. Mira Gur-Arie – Director of International Judicial Relations at theFederal Judicial Center in Washington, D.C.Academic Prof. Dr. Aleksandar FiraDr. Duško Vrban, professor at the Faculty of Law, Osijek, CroatiaDr. Agneš Kartag-Odri, professor at the Faculty of Law, Novi Sad, andDr. Gordana Vukadinović, president of the Novi Sad Association forTheory, Ethics, and Philosophy of Law, professor at the Faculty of Law, Novi Sad.Members of the Working presidency, please take your places.It is not by accident that this gathering is taking place in SremskiKarlovci, a place that has been the center of Serbian spirituality throughouthistory. Moreover, Serbian modern legal and political thought, after devastationof the medieval state, was conceived right here, in Vojvodina.Besides, it is not without reason that the patron of this gathering is thenewly founded Novi Sad Association for Theory, Ethics and Philosophy of Law.More than a decade ago, some individual researches were started in the field of

4American jurisprudence, which have been developed later on into a well-conceivedand complete research, mostly in the master studies. Let me mention some ofthe results: two master theses have been finished, and the third one is beingprepared. Then, a doctoral thesis is being prepared on iusnatural theory inAmerica. Moreover, basic orientations in the development of Americanjurisprudence are presented in the textbook Theory of Law (for students of thefirst year of studies at the Faculty of Law). Then, a monograph Legal Thought inthe 20 th Century was published, with an important part dedicated to Rawls,Dworkin, Fuller, Finis and Pound. And finally, a special monograph is beingprepared about feminist jurisprudence in the USA by Agnes Kartag-Odri.I would just like to say, if I may say so, on behalf of all the participants, howdelighted we are, for having this opportunity to present our research. I hopethis project will be a step further in our research on American jurisprudence.Therefore, we, who are involved in the work of The Novi Sad Association forTheory, Ethics and Philosophy of Law are making new plans that will be realizedeven more successfully with your help. One example is certainly the review ofthe works from this meeting.We have gathered here today in this magnificent edifice, in such a number,from five different countries to present our results, to exchange our experienceson American jurisprudence in order to continue and expand together theseactivities to other topics, for example, legal ethics. This work will be available tothe public in the books American Jurisprudence of the 20 th Century that will beprinted in English and Serbian.All this would not be possible without the patronage of the Embassy ofthe United States of America and our general sponsor the SIM Company fromSremski Karlovci, as well as the governmental support of the Executive Councilof the Autonomous Province of Vojvodina, the Sremski Karlovci GrammarSchool, where we are at the moment, and our hosts in this beautiful place – theAssembly of the Municipality of Sremski Karlovci. I would like to express gratitudeto all of them, both personally and on behalf of the organizer, our Association.At the very beginning I would like to point out that those who have comehere are only the participants who managed to leave all their work aside, inorder to be with us in Sremski Karlovci.Now, I would like to ask Mr. John Johnson, the cultural attaché at theEmbassy of the United States of America in Belgrade to address this meeting.

5Welcome speechMr. John Johnson, Attaché Cultural at the Embassyof the United States of America in BelgradeGood morning.It’s an honor to be here today.I will not speak about American jurisprudence, especially in the presenceof so many great lawyers. I will only say that it is a pleasure first to participate inthis conference, that we were able to bring Dr. Mira Gur-Arie here, Director ofInternational Judicial Relations at the Federal Judicial Center in Washington,D.C., to participate and, as I said before, to make the first step for our futurecooperation.I also want to say that I am honored today to see so many people fromformer Yugoslav states to speak about such an important topic.Thank you very much for the invitation and I am looking forward tohearing all the lectures this morning.Thank you.* * *I would like to thank Mr. John Johnson and the Embassy of the UnitedStates of America for helping us from the very beginning, to bring about suchan important meeting.And now I do not wish to hold your attention any more, the time passesand I believe you are all impatient to hear our distinguished guest Dr. MiraGur-Arie.Please, Mrs. Gur-Arie!

1 Mira Gur-Arie *FJC, Washington, D.C., USAAMERICAN JURISPRUDENCEIN THE THIRD MILLENNIUM– REMARKS –My remarks will address current trends in American jurisprudence, or,more specifically, ”Jurisprudence in the United States in the Third Millennium.”Although discussions about the philosophy of law take place primarily amongprofessors of legal theory, debate over what can be referred to as ’appliedjurisprudence’ – the interpretive principles that judges employ to decide cases –has animated the pages of published court decisions over the last 200 years andis a topic with significant resonance in American society today.Jurisprudence speaks to the essence of what judges in the United Statesdo, the process of interpreting the Constitution and statutory text and applyinglegal principles to questions of fact. Jurisprudence also reflects beliefs about thejudiciary’s role, the institutional competence and responsibility of courts withinthe framework of the United States Constitution. Because judges in the UnitedStates are called upon to resolve issues of such fundamental importance to society,including the scope and protections accorded individual rights, a principledlegal theory is in many ways the intellectual foundation for the rule of law.The opening of the Third Millennium in the United States has beenmarked by increasingly public and pointed debates over the role of courts,challenges to the exercise of judicial authority, and disagreement over theappropriate content of the judiciary’s interpretive process. This heightenedscrutiny is in part the result of the importance of and disagreement about manyof the issues under judicial review in recent years, including the powers of theExecutive during war, the rights of minorities, and religious liberty. Debate over*Mira Gur-Arie is the Director of International Judicial Relations at the Federal JudicialCenter, in Washington, D.C. The views expressed in this paper are those of the author andshould not be attributed to the Center.

10Mira Gur-Ariethe appropriate role of the courts and the interpretive rules that should govern”American” jurisprudence has been aired not only in the halls of academia, butalso in the texts of judicial decisions, the corridors of Congress, the pages ofnewspapers, and, with growing frequency, the internet’s blogosphere. This is aperiod of jurisprudence in flux.This paper will attempt to describe this flux, first by providing a briefhistorical overview and next by discussing current examples of this jurisprudentialdiscourse as articulated by leading academics and Justices of the U.S. SupremeCourt. The current polarity in American judicial philosophy, though perhapssomewhat more tense than in the past, reflects the central importance of legaltheory (and the judiciary) to American democracy.Historical ContextIn the United States, the essential relationship between jurisprudence andjudicial power is rooted in the efforts of the authors (the ”framers”) of theConstitution to resolve, or at least accommodate, the tension between judicialindependence and accountability. The general structure of the U.S. legal systemand the common law method is well known. The Constitution of the UnitedStates enshrines a formidable judicial role. It sets forth an institutional frameworkunder which laws are drafted by the legislature and enforced by the executive.The judiciary is empowered to interpret the law.The Constitution’s framers intentionally created a strong and independentjudicial power, having recently experienced the arbitrary and authoritarian ruleof the King of England, rule that included political influence over the colonialjudiciary. They believed that a strong judiciary was essential to protect individualliberty against the authority of the government and designed a governmentalsystem that shields the judicial process from outside influences. The Constitutiongrants federal judges life tenure and prohibits any reduction in judicialcompensation.However, from the earliest days of the American colonial period throughthe present day, the nature and limits of judicial branch power has engendereddebate. Not long after the Constitution was ratified, the U.S. Supreme Court, inan infamous case Marbury v. Madison, interpreted the Constitution as grantingthe judiciary the power, and obligation, to declare null and void an act ofCongress that fails to comport with the Constitution. This early exercise of

12Mira Gur-ArieThe Legal Process movement, most often associated with the scholar LonFuller, argues that law is governed by reason, not divine fiat, and this reason isreflected in the transparent and uniformly employed legal method of case analysis.Legal method is carried out to realize morally defensible goals. Rather thanimposing their subjective values, judges follow a reasoned and transparent interpretiveprocess, modestly, incrementally, and with institutional circumspection.The 1960’s were a period of social upheaval in the United States, upheavalmarked by a search for social justice and skepticism about the legitimacy ofgovernmental authority. The Legal Process method was criticized as overlyformalistic and unrealistically divorced from context. Lawyers were exertingpressure on the judicial system to remedy social injustices. Supreme Courtrulings during the tenure of Chief Justice Earl Warren provided some citizenswith faith in the potential of the courts to enable political and social reformsand achieve justice – a view that represents the tenets of American liberalism.However, for others, the Warren Court’s rulings on cases involving the rights ofminorities and criminal defendants represented American jurisprudence at itsworst, with judges emboldened to act as Platonic guards and exceeding theirconstitutionally-mandated authority.The liberal tradition of the Warren Court found further philosophicalexpression in a movement named the ”living Constitution”, a theory ofconstitutional interpretation that ”draws its meaning from the evolving standardsof decency that mark the progress of a maturing society”. Troop v. Dulles (1958).This jurisprudence is most often associated with late Supreme Court JusticeWilliam Brennan. Justice Brennan believed that the Constitution is an organic,living document, one that that should be interpreted with flexibility and shouldbe responsive to contemporary societal conditions and mores. Central to ”livingConstitution” jurisprudence is the notion of human dignity. Constitutionalprovisions should be interpreted to safeguard this dignity and promote egalitarianvalues.Recently retired Supreme Court Justice Sandra Day O’Connor and JusticeAnthony Kennedy do not articulate their interpretive method in terms of a”living Constitution.” Theirs is a deliberative and more circumscribed judicialmethod, resolving issues on a case-by-case basis without a clearly doctrinaljurisprudence. However, they also have embraced a responsive jurisprudenceand reject the notion of an interpretive process limited to the vague and sparselanguage of the Constitution.

American Jurisprudence in the Third Millennium 13The ”Constitution in Exile” movement was born, in part, as a reaction ofthe perceived excesses of the Warren Court era and the resulting ”activist”jurisprudence advocated by proponents of a living Constitution. Scholars of thisschool believe the Constitution should be strictly construed and the interpretiveprocess should be confined to the original meaning of the 18 th century text, withits language and dictates interpreted as they would have been intended by theConstitution’s authors. Proponents of Originalism are skeptical of constitutionalrights that do not appear explicitly in the document’s text. They oppose ”liberal”interpretations of the Constitution that mandate a broad reading of the equalprotection clause and they advocate a limited judicial role that foreclosesopportunity to ’interpret’ vague Constitutional provisions.This American tradition of legal scholarship – theory, critique, countertheory– continued into the late 20 th century, with the Critical Legal Studiesmovement, feminist theory, and critical race theory questioning the process andlegitimacy of judicial reasoning. Rooted in post-modern interpretive theory, theseschools of jurisprudence contend that legal principles reflect power relations insociety. Law is but a reflection of politics and the interpretive process employedby judges is incapable of neutral, non-normative exercise. At its extreme, postmodernlegal theory challenges the determinacy of legal meaning and suggeststhat legal reasoning is contingent on the beliefs of the decision maker.21 st Century American Jurisprudence: A State of FluxI started my comments by remarking that American Jurisprudence in the21 st century is in flux. This brief historical detour suggests that ”flux” is notlimited to contemporary times but is perhaps endemic to legal theory in theUnited States. Nevertheless, in these early years of the third millennium, thejurisprudential ”flux” reveals unusually heightened tensions not only over thecontent of judicial interpretation but also over the legitimacy and role of thejudicial process.The common law method requires judges to look to precedent, thedecisions of other U.S. courts, for applicable legal principles. Over the last halfcentury,legal codes/statutes have come to play a central role in the judicialdecision making process, governing questions as broad and diverse asenvironmental regulations and rights to equal treatment. One of the most

14Mira Gur-Ariechallenging, and vexing, tasks for a U.S. judge is to interpret the often-vaguedictates of a legislative enactment.American judges also consult works of legal scholarship – law reviewarticles, books, and legal treatises. Although legal education in the United Statesstill focuses on the case method, with students required to read judicialopinions, analyze facts, and glean principles of law from judicial reasoning,many courses taught in law schools include legal treatises as required readingfor law students. This is especially true in the most difficult and compelling offirst year law school topics – constitutional law.Lawrence Tribe is one of the best-known constitutional law scholars inthe United States. He is a law professor at Harvard Law School and has arguedover 30 cases before the Supreme Court, most famously, the losing side of the2000 case, Bush v. Gore. Professor Tribe’s seminal text, American ConstitutionalLaw, a leading modern synthesis of American constitutional doctrine, was firstpublished in 1978, and has been required reading for scores of law students.Professor Tribe published the second edition of his treatise in 1988 andpublished Volume One of the third edition in 1999.Professor Tribe has decided not to complete the Volume Two of thisthird edition, the section of his treatise that addresses individual rights. In anApril 2005, letter to Supreme Court Justice Stephen Breyer, which wassubsequently made public, Professor Tribe explained his decision. Tribe wrotethat now is not a stable time in American jurisprudence. The Court’s recentdecisions have been marked by rapidly changing and competing theories ofconstitutional interpretation, from which no organizing principle is emerging.Tribe wrote, ”conflict over basic constitutional premises is today at a feverpitch,” and the ”working materials of American constitutional law may be inthe process of changing.”Tribe concluded that American jurisprudence is in a period of flux. Insupport of his position, Tribe cited the debate among Justices concerning theuse of international and foreign law in court decisions, their colloquy inmajority and dissenting opinions over the meaning of the establishment clause,and other contentious issues of constitutional interpretation.Tribe’s decision not to revise his treatise illuminates the great difficultythat is American jurisprudence in the 21 st century: many of the issues nowbrought before the Supreme Court do not have objectively right or wronganswers; and many of the more difficult cases are decided by a margin of 5:4,sometimes with only one justice making the difference not only in the outcome

American Jurisprudence in the Third Millennium 15in a particular case, but in the jurisprudential approach to a significant area ofconstitutional law. Cultivating a majority for a particular judicial decision ofteninvolves a process of compromise: how to draft a decision that will persuade acritical swing vote to join the majority. While this makes successful judicialpolitics, the art of judicial compromise can lead to narrow holdings based onopaque reasoning. Many of the Court’s recent majority opinions have beenexamples of judicial minimalism, decisions with limited resonance beyond thedispute at hand. However, in the pages of concurring and dissenting opinions,there has been a resurgence of the debate over jurisprudence, a debate thatreveals very different understandings about the role and responsibilities of thejudicial process.Textualism vs. Active LibertyThe dilemma of doctrine that Tribe references is epitomized in thecompeting legal philosophies of Supreme Court Justices Antonin Scalia andStephen Breyer. Justice Scalia is perhaps the best-known exponent of thejurisprudential theory of Textualism. This doctrine holds that when decidingconstitutional questions, judges must look to ”original intent” as evidenced bythe language of the Constitution. Contemporary constitutional questions shouldbe resolved with reference to how the Constitution’s text would have beenunderstood by a reasonable person in 1787. This theory is a response to theanti-majoritarian dilemma: nine unelected officials rendering decisions thataffect the social order should not be free to impose their personal will. Judgesare constrained by the language in the document that empowers them: the U.S.Constitution. Justice Scalia, speaking at a conference just a few months ago,spoke out against judicial activism and a more elastic theory of constitutionalinterpretation: ”[Y]ou’d have to be an idiot to believe that ... The Constitution isnot a living organism – it is a living document. It says something and doesn’tsay other things.”Proponents of Textualism often criticize ”activist judges” who ”legislatefrom the bench”, usurping the authority of elected officials, and reading into theConstitution’s text rights and protections not evident from the document’s plainlanguage. Textualism suggests that judicial competence in the sphere of constitutionallaw should be limited to legal issues capable of resolution based upon theConstitution’s plain language. Legal questions that involve questions of social

16Mira Gur-Ariepolicy or the weighing of competing norms are the exclusive province of thepolitical branch: Congress, the democratically elected representatives of the people.Justice Scalia’s book, A Matter of Interpretation, published in 1997, includesthe contributions of his critics, among them Professor Tribe, who takes strongissue with Scalia’s jurisprudence. Tribe quotes Ronald Dworkin, a prominentAmerican legal theorist, who says, ”We are all originialists,” meaning that thetext of the Constitution should indeed be the starting point of Americanjurisprudence. Dworkin, however, believes that judges should look not to whatthe authors of the Constitution intended to do, but rather what they intended tosay. It is the values that underlie the text that should govern the meaningaccorded constitutional provisions.Tribe, in contrast, believes that what the authors of the Constitutionintended is not dispositive. His is a more fluid jurisprudence, one informed bythe underlying goals of the Constitution – a just and responsive system ofgovernment. Tribe writes: ”To prevent that interpretive task from degeneratinginto the imposition of one’s personal preferences or values under the guise ofconstitutional exegesis, one must concede how difficult the task is.” Judgesshould be guided by ”the canons of candor and self-conscious humility.” Tribeis skeptical that any definitive set of ’rules’ exists. The judicial process is insteaddetermined by ”insights and perspectives” constrained by judicial modesty.Other critics of Textualism, including Cass Sunstein, an eminent lawprofessor from the University of Chicago, argue that this theory falls prey to thevery evil it condemns: the subjectivity of interpretation. Perhaps attempting todiscern the beliefs of the Constitution’s authors from its text can provide someevidence of ”original meaning,” but it cannot conclusively establish that meaning.There is not necessarily agreement over what original understanding embraces,nor is there agreement over which historical sources should be consulted.Professor Sunstein argues that Textualism correctly advises to look to the text ofthe Constitution to seek ”discipline in judicial discretion” but suggests that thiscan be done without being bound by a 200-year-old understanding and acontext that is incapable of embracing contemporary problems and realities.Professor Sunstein points out that much of the framer’s ”original thought” ispatently unacceptable today, including their views on race and gender.In 2005, Justice Stephen Breyer published Active Liberty, a discourse oninterpretive method that directly addresses the jurisprudence of Breyer’scolleague, Justice Scalia. Breyer contends that it is unlikely that the authors ofthe Constitution had a fixed view. He writes: ”Whey would the Framers, who

American Jurisprudence in the Third Millennium 17disagreed on the necessity of including a Bill of Rights, disagreed on the contentsof that Bill of Rights, have nonetheless agreed about what school of interpretivethought should be used to interpret the Constitution?” Textualism’s interpretivemethod leaves plenty of room for subjectivity and fails to produce clear rules ofinterpretation. Breyer notes that cases decided pursuant to this methodology canresult in bad consequences – as Professor Sunstein also suggested. Textualism,in Breyer’s view, is not an acceptable jurisprudence.Breyer does not offer an interpretive theory, per se, in Active Liberty. Tothe contrary, he explains that no single theory will capture the true meaning of theConstitution. Rather than search for theory, judges should look to the principlesthat animate the Constitution. The Constitution should be read in light of itsoverarching goal: creating and preserving a participatory democratic society.Judges are obliged to employ principles that will most effectively realize thefundamental values underlying the U.S. Constitution: democratic self-government.They should ”pay attention to consequences and seek to render decisions thatmake government work better.” Because the process of constitutional interpretationis inherently subjective, this process is safe only if it engaged in modestly, withprudence, and with an emphasis on democratic values.Continued Flux: Recent ExamplesThe debate over jurisprudence, as the discussion above illustrates, is aliveand well in the United States. In fact, on March 22, 2006, just last week, thisdebate surfaced in a U.S. Supreme Court case. The facts of Georgia v. Randolfare straightforward: Mr. Randolf’s estranged wife gave the police permission tosearch their home for evidence of drug use. Mr. Randolf, who was present at thetime of the search, unequivocally refused consent. Cocaine was found. The trialcourt denied Mr. Randolf’s motion to suppress the narcotics as the fruits of anunlawful search in violation of the 4 th Amendment. The Georgia Court ofAppeals reversed the trial court and the Georgia Supreme Court affirmed thisreversal, holding that the search was invalid because the homeowner waspresent and refused.In a decision written by Justice Souter, the majority of the Supreme Courtaffirmed the Georgia’s Supreme Court’s ruling, finding that a consistent themeof the Court’s 4 th Amendment jurisprudence is reasonableness – in this case, the”great significance given to widely shared social expectations which are

18Mira Gur-Arieinfluenced by property law but not controlled by its rules.” The principle that ’aman’s house is his castle’ is one such fundamental social expectation, Souterwrote, and ”disputed consent is not match for this central value.”As often happens, the jurisprudential debate took place in the concurringand dissenting opinions. Justice Breyer wrote a concurrence in which heelaborated on the interpretive method set forth in Active Liberty. Breyer notedthat the 4 th Amendment does not insist on bright line rules. ”Rather, it recognizesthat no single set of legal rules can capture the ever changing complexity ofhuman life.”Justice Stevens also wrote a concurrence. In a direct critique of Scalia’stextualist methodology, Stevens noted that if the Court’s interpretive processwere confined to divining the mindset of 18 th century jurists, the consent of awife would not even be a valid consideration, as women’s rights during this erawere seldom considered. According to Stevens, this illustrates the limits ofTextualism and the importance of a jurisprudence that acknowledges changes inAmerican society. Scalia’s dissent took issue with Steven’s concurring opinion,arguing that Justice Steven’s critique confuses ”the original import of the 4 thAmendment with the background sources of law to which the Amendment, inits original meaning, referred.” While the import of this exchange is somewhatunclear, its very existence illustrates the vigor of the contemporary Americandebate over jurisprudence, especially as it influences the interpretation of theConstitution.As referenced earlier in my comments, debates over jurisprudence havespilled into the political arena, in some cases even penetrating popular culture.One prominent example is the propriety of U.S. courts citing the judicialdecisions of foreign and international tribunals. In recent years, some Justicesof the Supreme Court have cited foreign cases, not as binding precedent butrather as examples of how other nations have handled similar legal questions.These Justices explain that a comparative jurisprudence may shed light ontrends in moral thought that can assist U.S. courts as they grapple withincreasingly complex legal issues.There are judges, scholars, and legal practitioners who support, or at least,remain untroubled by this practice; no Supreme Court justice has ever statedthat the decision of a foreign court can be binding precedent for a U.S. Court.However, the opposition has been loud and definitive, perhaps because Courtdecisions that have referenced rulings of foreign tribunals have involved parti-

American Jurisprudence in the Third Millennium 19cularly contentious legal issues, including the execution of the mentally retardedand juveniles, affirmative action, and the privacy rights of homosexuals.The critique of this practice is two fold: first, that all that should matter ina U.S. court is U.S. law and legal values. As Justice Scalia has said, he is a judgeof a United States federal court not a court in Europe, South Africa or elsewhere.A second criticism is that citation of foreign judicial decisions is a practice thatcan be engaged in selectively to justify a judge’s personal preferences. Judge RichardPosner, a judge on the Seventh Circuit Court of Appeals, published an article in2004 in the journal, Legal Affairs: ”No Thanks, We Already Have Our OwnLaws.” Posner writes that the judicial systems of other countries have their ownunique histories, institutions, and methods. U.S. judges are unfamiliar with thiscontext and hence their citation to foreign opinions is both selective (they citethe foreign decisions they like) and irresponsible.Criticism has filled not only the pages of law review articles and legaljournals, but also the Congressional Record. In 2004 a bill was introduced inCongress – The Constitution Restoration Act – that sought to prohibit theSupreme Court from relying on foreign law in interpreting the Constitution.This issue has become a rallying point for critics of the judiciary, those whobelieve the spirit and activities of the Warren Court live on, with activist judgesplacing American democracy in jeopardy. During a speech last year in SouthAfrica, Justice Ruth Bader Ginsburg revealed that she and Justice O’Connorwere the subjects of Internet death threats, threats that cited the Justices’ referenceto the decisions of foreign courts.The debate over the relevance of foreign and international law in manyways goes to the heart of the debate over jurisprudence: constitutionalinterpretation. Are judges bound by the four corners of the Constitution andthe ”original intent” of the Constitution’s authors, or is the interpretive processsufficiently fluid to allow not only a jurisprudence that responds to changes inU.S. society, but one that looks beyond national borders.The United States is a diverse and nuanced country, a melting pot withpeople of different ethnicity, race, religion, and values. It is no wonder thatthere is not only no single American Jurisprudence, but that as divisions insociety become more prominent, the tenor of the jurisprudential debate hasintensified. Some of the disagreement over what courts do – should do or shouldnot be doing – has, as in the case of the threats to Justices Ginsburg andO’Connor, resulted in anti-judge sentiment. In the state of South Dakota, aballot measure that would eliminate judicial immunity and subject judges to

20Mira Gur-Arieliability for their rulings garnered over 40,000 signatures. This is but oneexample of popular outcries condemning what is perceived as an elitistjudiciary that has overstepped its authority.Does a Judge Need a Jurisprudence?It has been said that theories do not decide cases, judges do. Althoughinterpretive method is often condemned as being hopelessly influenced byideology, the fact that judges strive to ground their jurisprudence on neutralinterpretive principles suggests they are aware of the importance of a transparentand legitimate process.In recent years, legal scholars have attempted to establish empirically theinfluence of ideology on judicial decision-making. The publication Judicaturehas published a number of articles describing voting patterns among judgesappointed by Democratic and Republican presidents, noting trends andhighlighting examples of when presumed political ideology appears to influencerulings in certain classes of cases (among them, cases reviewing environmentalregulations, labor rights, and criminal sentencing).A recent study published in the journal Law & Society Review examinedSupreme Court decisions in cases that involved conflicts among judicial circuits(cases in which the U.S. courts of appeals reached different conclusions regardingthe same questions of law). The study sought to investigate ”the impact ofjurisprudential considerations on Supreme Court decision making.” Its authorsdid not reach a definitive answer to this question, but did conclude: ”We thinkit is fair to characterize our evidence as suggesting that the desire to find legallysound, persuasive solutions to legal questions plays a significant role in SupremeCourt decision making.” ConclusionPerhaps the difficulty of articulating an American jurisprudence for the21 st century – a difficulty experienced in the 18 th , 19 th and 20 th centuries as well -- is due to the complexity of the decision making process in legal cases. Judges Law & Society Review, Vol. 40, No. 1 (2006). Linquist at 156-157

2 Prof. Gordana Vukadinović, PhDFaculty of Law, Novi Sad, SerbiaCONTEPORARY AMERICAN JURISPRUDENCEAND SERBIAN THEORY OF LAW AT THEBEGINNING OF THE TWENTY-FIRST CENTURYAbstract: In theories contemporary American jurisprudence, there aremany dierent orientations. Numerous approaches, orientations and theoriesalso mark the Serbian theory of law, such as natural theory, sociological, integralapproach, etc. Furthermore, natural law theory in the USA, as well as in Serbia,have emphasized the same stipulation regarding ”quality and quantity” of thelaw in order to establish the Rule of law. Then, there are also some similarities incritical approaches to the law, but with dierences in theoretical-methodologicalbasis. Initiative and influences of American jurisprudence are also evident inthe area of legal education and legal ethics.Key words: theory of law, law, morality, natural theory of law, legal ethicsIIf we perceive changes in theory within a wider framework – they have,alongside with the establishment of the constitutional foundations of the civil era,contributed to a new epochal picture of the world and the powerful developmentof legal awareness. These changes are related to the systematic creation of lawsand new legal institutions, as well as to the development of legal reflections asexpressed through main currents in German, French, Italian, and, since thesecond half of the 20 th century, Anglo-American legal thought. If we want toexamine a certain segment of this thinking and uncover the most distinguishingcharacteristics of contemporary American jurisprudence; that is to say, if we wantto know what the main approaches are, what influences it exerts or undergoes,and to research its ”encounter” with European and within it Serbian theoretical

Conteporary American Jurisprudence and Serbian Theory of Law... 23and philosophical thought – it is first necessary to trace the map of legaltheories, approaches, and currents that have marked contemporary Americanjurisprudence since the beginning of the 21 st century.The research we have been conducting for some time indicates thefollowing main currents in American jurisprudence: natural theory of law,American Legal Realism, Critical Legal Studies (in further text CLS), Law andEconomics, Law and Literature, Communitarianism, and feminist jurisprudence.Since Antiquity and to the present, Natural theory of law has been afixture in European as well as American legal philosophy. Its permanence canbe attributed to the law’s complex and hierarchical duality, whose content isethically perfect (ideal), and that finds expression through justice or the generalgood. The principles of the natural law are superior to those of the positivistlaw 1 . In American jurisprudence, we can find its complete conceptions inworks of John Finis and Lone Fuller.As many authors have stated, American Legal Realism has not been acoherent intellectual movement, a consistent law theory. It more closelyresembles a standpoint than a clear system of principles; more an assembly ofoften contradictory conceptions than a firm structure of methodological andtheoretical conceptions 2 . The beginning of Legal Realism in America can betraced to 1930 when Karl Llewellyn, a law professor at Columbia University,published an article entitled A Realistic Jurisprudence – the Next Step, and whenJustice Jerome Frank first used the term legal realism 3 in his book Law and theModern Mind. Theoretical and methodological sources of American LegalRealism can also be found in Oliver Wendell Holmes’ pragmatism 4 as well as insociological jurisprudence, especially in the work of Roscoe Pound.1G. Vukadinović, R.Stepanov: Teorija prava (Theory of Law), Vol. I, Petrovaradin, 2001, pp.170-1872M.J. Horwitz: The Transformation of American Law, 1870-1960, Cambridge, Harvard,1977, pp. 169, etc.3K. Llewellyn: A Realistic Jurisprudence – The Next Step, Columbia Law Review, April 1930;J. Frank: Law and the Modern Mind, London, 19304Holmes is mostly referred to as one of the four ”fathers” of progressive legal thought. It isemphasized in literature that the development of American legal thought since 1870 tilltoday has had six phases. The first is the period from 1830 to the last decades of the 19 th centuryand is referred to as classical legal thought. The second is called progressive legal thought.The third is legal realism dominant during the thirties in the 20 th century. The fourth, fromthe fifties on, is marked by negation and opposition to the legal realism – the antirealist legal

24Gordana VukadinovićPhilosophical Realism provided a wider frame in which American LegalRealism was conceived and developed. With the passage of time, the fieldbecame richer in both its contents and the ”strength” of its personalities. Thiscurrent was a result of cultural crisis, a product of America’s search for itsintellectual and moral sources. Beginning as such, American Legal Realismreached its climax in the 1940’s with the works of Karl Llewellyn, Jerome Frank,Felix S. Cohen, William O. Douglas, Walter W. Cook, John Ch. Gray, HesselYntema and others 5 . Among numerous authors from this line, some createdcomplete works on overall general law (e.g. Llewellyn, Frank, Cohen) while theothers concentrated on fragmentary supplements, developing and explainingcertain aspects of law. Despite all the philosophical dierences separating thiscurrent’s notable authors, Llewellyn managed to concisely ascribe nine qualitiesto Legal Realism: ”1) Realists perceive law as something changeable, and elementsof this changeability are visible in judicial creation of law; 2) Law is a means forreaching goals, so in accordance with that each segment of law should be perceivedin light of its objective and consequences; 3) The society changes faster than thelaw; 4) Realists separate Kant’s Sein and Sollen. They think that research shouldbe separated as well. The separation is not constant but limited to the study ofthe facts; 5) Realists do not have confidence in traditional notions and legalnorms. Norms are considered as generalized prediction of what the courts aregoing to do; 6) They think that formulated norms are not crucial for rulings ofmovement. The fifth is called legal processes or neutral principles of schools of legal thought. Thesixth, the current phase is marked by movements between legal realism and legal processes orneutral principles which include Economic Analysis of Law and Critical Legal Studies andamong most important representatives are Ronald Dworkin and John Rawls. D. Kieso:Legal Reasoning in the United States from 1870 to the present.5F. Cohen: Transcendental Nonsense and Functional Approach, Columbia Law Review,No. 6. June 1935, Vol. XXXV; W. Cook: Scientific Method and the Law, American BarAssociation Journal, 1927; W. Douglas: Stare Decisis, Columbia Law Review, Vol. 46,1949; J.Gray: The Nature and Sources of the Law, New York, 1938; J. Frank: Law and the ModernMind, London, 1930; K. Llewellyn: Jurisprudence, Realism, Theory in Practice, Chicago, 1962;H. Yntema: American Legal Realism in Retrospect, 14 Vand Law Review, 1960, 96.Works on American Legal Realism: G. Gasper: Juristicher Realismus und Politiche Theoriein Amerikanischen Rechtsdenken, Berlin, 1967; H. W. Jones: Law and Morality in thePerspective of Legal Realism, Columbia Law Review, 1961; F. Michaut: Le role créateur dujuge selon l’école de la ”Sociological jurisprudence” et la règle de droit, Revue Internationalede Droit Comparé, 1987, No. 2; G, Tartello: Il Realismo Giuridico Americano, Milano, 1962;W. Twining : Karl N. Llewellyn and the Realistic Movement, London, 1993

Conteporary American Jurisprudence and Serbian Theory of Law... 25the courts; a court ruling is a rationalization a priori; 7) Unlike traditionaltheorists, they support the grouping of cases and situations to more constrictedcategories and classes; 8) They emphasize the importance of evaluation of everysegment of the law in relation to the consequences and they conduct researcheson the consequences; 9) Each problem connected to the law has to be analyzedin connection with the previous points 6 .Certainly, American Legal Realism has contributed significantly to thestudy of the law by insisting on the eects that the rulings have in practice andputting an accent on the conduct of the judges while making decisions. In otherwords, it focuses on the application of the law. However, even some of therepresentatives of Legal Realism have objections to it. For example, H. Yntemapoints out that American Legal Realism neglects the humanist side of the law,overlooks the law’s comparative and historical aspects, and places too muchemphasis on concrete current practice. In so doing, he highlights how thisapproach fails to distinguish the main from the ephemeral, and the relevantfrom the irrelevant. Nevertheless, its main weakness is the over-emphasis of thecourt’s role in creating laws, especially Gray’s and Frank’s notion that ”thejudge has sovereign prerogative to chose a legal rule among alternatives that hewill apply in a certain case” 7 .When it comes to the critics in the United States, American Legal Realismhas suered the attacks of the antirealist movement. Since the 1950s, the CatholicAssociation for Philosophy and catholic universities have been attacking realistpragmatism by equating it with the nihilism and qualifying Holmes’ ideas astotalitarian, while equating the realistic Thomism they advocate with democracy.Since American Legal Realism neglects the ethical component of law andits connection to the moral, the ideas of the ”realists” are incomplete andtherefore subject to critiques. For that reason, Llewellyn and Frank add elementsof the natural law to their conceptions. Those transformations indicate furtherdevelopment of numerous new orientations and additional movements inAmerican jurisprudence, such as, besides the natural law, CLS, EconomicAnalysis, etc.6K. Llewellyn: Some Realism about Realism, 44 Harvard Law Review, 1931, pp. 1222 etc.(quotation from M. Ivovic: Ostvarenje prava, njegov karakter odnos i veze sa stvaranjemprava,(The Realization of the Law, its Character, Relation and Connection to the Creation ofthe Law), doctoral thesis, Podgorica, 1994, pp. 101-103).7K. Čavoški: Uvod u pravo (Introduction to the Law), Vol. I, Belgrade, 1994, pp. 32

26Gordana VukadinovićThese two abovementioned approaches to the law were dominant in theUnited States in the 1970s. The first, CLS, embodied the intellectual criticism ofacademic elites, while the latter School of Economic Analysis was formed bylesser-known economists who approached the law in perspective of the costsand use (profit). It was only in 1980 when Ronald Regan was elected presidentof the USA that this school, known also as The Chicago Law School, started toinfluence political and legal issues and became a discipline at all the universitiesin the USA 8 .The foundations of the Law and Economics school can be found in theworks of Ronald Coase and Guido Calabresi 9 , and its best developed ideas arethose of Richard Posner, its most important representative 10 . All those belongingto this movement support the application of market analytical principlestowards solving the social diiculties that aect postindustrial society. Recognizingthat there is a tight connection between law and economy, they emphasize thatlaw is based on the principles of economics, and – above all – on rationality andeiciency. Legal regulations should ensure the most eicient allocation ofeconomic funds and resources, and with that society’s prosperity. Given the factthat there are less goods or resources than needed to meet the demand, a legalsolution should facilitate that the goods are used so as to maximize benefit. 11Richard Posner wants to apply methods of economics to all the aspects ofthe law. His starting point is the fact that ”the presence of the economy in thelaw is the foundation of the positive theory of this aspect of the law is the most8Economic Analysis has spread through Europe as well. Therefore a new subject wasintroduced at some universities in Germany – Economic Analysis9R. Coase: The Problem of Social Cost, Journal of Law and Economics, 3, 1960; G. Calbresi:Some Thoughts on Risk Distribution in the Law of Torts, Yale Law Journal, 70, 1961; TheCosts of Accidents, A Legal and Economic Analysis, New Haven – London, 197010R. Posner; Economic Analysis of Law, Boston – Toronto, 1972; The Economics of Justice,Harvard, 1983. There is vast literature on this school. A symposium was held in 1980 on thesubject: Efficiency as a Legal Concern, Hofstra Law Review, 8, 1980; L.A. Kornhauser: L’analyseeconomique du droit, Revue de Synthèse, 1985; P Bechrens: Askekte einer őkonomicherTheorie des Rechts, Rechtheorie, 4, 1981; H-D. Assmann, C. Kirschner, E. Schanze (hrsg):Őkonomiche Analyse de Rechts, Kronberg / Ts, 1978; Z. Grebo: Osnovne postavke ekonomskeanalize prava (The Basics of Economic Analysis of the Law), Pregled, Sarajevo, No. 6-7,1987. A more detailed list of literature in A. Jovanović: Uvod u ekonomsku analizu prava(The Introduction to the Economic Analysis of the Law), Belgrade, 1998; V. Vodinelić: Građanskopravo, uvodne teme (Civil Law, Introductory Topics) Belgrade, 1991, pp. 141-14411V. Vodinelić : op.cit., pp. 142

Conteporary American Jurisprudence and Serbian Theory of Law... 27promising”. Seeking to increase social wealth and maximize the gross domesticproduct, Posner argues that the law’s purpose must be the maximum increase ofthe wealth, and not the support for the state of prosperity. 12 In his work TheProblematic of Moral and Legal Theory 13 , he rejects the role of moral theory inlegal research and advocates a pragmatism that resembles that which OliverWendell Holms espoused at the beginning of the century.Posner also believes that certain economic notions and principles are typicalof the economic analysis of the law. First, he contends that any analytical startingpoint must recognize that resources are rare and limited because we live in theworld of scarce resources (e.g. capital, labor, money, land, and other natural goods,life, health, time, etc.) Second, individuals make decisions that are in their personalinterest and they strive to maximize their benefit. 14 ”People are systematicallybehaving rationally, meaning that they look for the best connection between rareresources and the goals they want to achieve.” That means that they try to make therealization of this maximum goal possible, by making the right decision based onthe given resources. On the other hand, rational behavior means that the goal isachieved with minimal resources and costs. Therefore, rational behavior isillustrated by the ”maximization of the results/eects (for given costs – resources)”or minimization of the costs (for the given goal)” 15 . Third, the subject matter of theeconomic analysis revolves around individual decisions, because the behavior ofgroups, organizations, and even nation-states can be observed through thedecisions made by individuals. This approach is extremely important from thepoint of view of political, corporate, and familial decision-making. Fourth,economics is a science of rational choice starting with the limited resourcescondition and the assumption that man rationally maximizes his objectives.Therefore, the task of economics is to examine the consequences of decisions,regarding the scarce resources selected in order to achieve a goal. Fifth, the basicinstruments of economic analysis are supply and demand. ”Supply is formed basedon the relation between the costs of production of the goods and its price. Demandis established based on the relation of the utility a consumer gains from use of theproduct and its price. The interaction between the supply and demand forms12Z. Grebo: op.cit., pp. 46613A. Posner: The Problematic of Moral and Legal Theory, Harvard, 200214Utility is defined as a sense of satisfaction that a certain individual gains from an economicactivity he undertook, that is from the decision one made. (A. Jovanović : op.cit., pp. 18)15Ibid.

28Gordana Vukadinovićdetermines the price and the quantity of the goods on the market.” Sixth, eiciencymeans that the resources are used where they have the maximum value. Thisdefinition of eiciency broadly includes all individual decisions on the use of theresources with which individuals seek to maximize their own benefit. When itcomes to the legal system, economic theory considers the eects of legal rules interms of the eicient allocation of the resources, and not in terms of ethics.If we try to approach the School of Economic Analysis at a conceptuallevel, it can be reduced to the following four postulations: behaviorism,normative and descriptive approach, and evolutionism. 16Alternatively, the Critical Legal Studies movement was founded in 1977at a conference at the University of Wisconsin-Madison with the goal ofcritically questioning legal phenomena 17 . The Movement progressed 18 in ashort period. Not only did the number of members increase 19 , but theirphilosophical, theoretical and methodological sources became more diverse andthe area of research broader 20 . That is why it is nearly impossible to define itscommon traits.The reasons for CLS’ influence and popularity partly stem from thespecificity of American culture and the national prestige of its exclusive ”centers”– i.e. Harvard and Stanford Universities – but to a large extent also from theintellectual ”fashion” or popularity of certain theoretical currents and approaches.Still, CLS is undoubtedly a turning point compared to the previouslyaccepted ideas – especially those of legal realists – because the movementperceives law as a multitude of social rules or, as one of its most importantrepresentatives has more precisely stated, CLS is ”a new way of interpretationand application of the law” 21 . Its adherents believe that the law exists in order to16L.A. Kornhauser: L’analyse économique du droit, Dictionnaire encyclopédique de théorieet de sociologie du droit, Paris, 1988, pp. 129-13117But, one should look for the origins of the Movement some twenty years before whenmost of the authors, that is founders of the movement, were already politically engaged inthe fight for human rights and against the war in Vietnam.18The first European meeting, where the name Critical Legal Studies (abbr. CLS), was heldin March 1981 in London.19In the Bibliography of CLS from 1984, 150 academic authors are mentioned. D. Kennedyand A. Klare: Bibliography of Critical Legal Studies, 94 Yale Law Journal, 461, 1984.20Jurisprudence, international public law, family, labour law, etc.21R. Gordon: Unfreezing Legal Reality: Critical Approach to Law, 15 Florida StateUniversity Law Review, 1987, pp. 195

Conteporary American Jurisprudence and Serbian Theory of Law... 29ensure realization of group, party, or class interests. In the view of its advocates,the rich and the powerful use law as an instrument of force in order to maintaintheir position in the social hierarchy. CLS’ fundamental stance is that the law isa political instrument; it is not neutral, let alone beyond values. Many membersof this movement advocate a change in the hierarchical structure that favorsdomination in the modern world. There is a faith in the possibility and need forthe radical and discontinued change 22 .Critical Legal Studies is mostly associated to Roberto Mungabeira Ungerand Duncan Kennedy, who is called the forefather of CLS, but also linked toRobert Gordon and Catharine MacKinnon 23 . All of these authors stand for thecritical approach to the law but adopt dierent practical, theoretical, andmethodological starting points (i.e. American Legal Realism, Marxism, feminismand post-structuralism).If, as A. Kaufman used to say, we continue to overcome the ”diiculty of thegeneralization” regarding the CLS then it is necessary to point to its critical attitudetowards the School of Economic Analysis and empirical legal positivism. On theother hand, CLS is connected to the feminism, or more precisely, there is a feministapproach 24 to the law within CLS, that is mostly interested in researching the roleand importance of sexes in the law and in the human law in general.If we look at the totality of CLS, the movement itself contains enoughelements that could be seriously criticized. Realists freed the law from the pastin order to make an eicient instrument – politics. CLS on the other handattempts to reveal its true face by criticizing it, but does not oer any response to22R.M. Unger: Znanje i politika (Knowledge and Politics), Zagreb, 1989, pp. 32423More on CLS: R. Abel: The Politics of Informal Justice, Vol. II, New York, 1982; P. Beirneand R. Quinney: Marxism and Law, New York, 1982; R. Gordon: Critical Legal Histories, 36Stanford Law Review, 57, 1984; R. Gordon: New Development in Legal Theory, D. Kairys:The Politics of Law, New York, 1982; M. Horwitz: The Transformation of American Law1870-1960, Cambridge, 1977; M. Jay: Dialectical imagination: A History of the FrankfurtSchool and the Institute of Social Research 1923 – 1950, Boston, 1973; D. Kairys: The Politicsof Law, New York, 1982; D. Kennedy: Legal Education as Training for Hierarchy, D. Kairys:op.cit.; C. MacKinonn: Feminism, Marxism, Method and State: An Agenda for Theory, 7Signs 515, 1982; C. Summer: Reading Ideologies: An Investigation into Marxist Theory ofIdeology and Law, London, 1979; E. Thompson: Wigs and Hunters – the Origin of Black Act,New York, 1979; R.M. Unger: Law in Modern Society, New York, 1976; R.M. Unger: Knowledgeand Politics, New York, 1975; R.M. Unger: Critical Legal Studies, New York, 198624For the International law see : H. Charlesworth: The Feminist Methods in InternationalLaw, American Journal of International Law, Vol. 93, April 1999, No. 2, pp. 370-394

30Gordana Vukadinovićthe question of what the law should be like. The only goal of the critique is thecritique itself.Nevertheless, CLS’ most important advocate, Roberto Mugabeira Unger,has made the most consistent eort in trying to build a positive theory for thechange of existing society. First, he criticizes liberal doctrine in order to reachanother, as he says, alternative doctrine called personality theory. Unger deemsthis the foundation for the definition of social ideal. Above all, he wants to”establish a theory of human emancipation as well as a theory of law based on theidea of a man, similar to the one of G. Radbruh” 25 , and to the one J.-J. Rousseau 26made, but with dierent bases, long before him. In spite of critiques concerning theindividualistic conception of personality, he should be recognized because hemanaged, starting with a critique of the liberalism, to set up an organization ofthe society that would exchange the liberal state and its existing legal system.With Unger, at the end, all the previous presentations are nothing but asummary review of widespread movement 27 that continues to exist in America.Marked by eclectism, CLS has kept its negative orientation to the law andAmerican authors within fragmentary approaches to the law refer to it asacademic nihilism.In addition to the already mentioned approaches, there is another withimportant members in America – Law and Literature, advocated by R.A. Posner 28 .He compares law to the forms and structures of literal works. Using the terminologyand methodology of literary theory, this movement gives a possibility to understandthe juristic discourse unrelated to dogmatism. It nevertheless goes beyondDworkin’s question as to whether law can be interpreted equivalently with literature.25A. Kaufman: Pravo i razumevanje prava (Law and Understanding of the Law), Belgrade,1998, pp. 293.26For Rousseau natural rights to freedom and equality express the basic attributes of humannature. G. Vukadinović: Žan-Žak Ruso i prirodno pravo (Jean-Jacques Rousseau and NaturalLaw), 3 rd edition, Petrovaradin, 2005.27Even at the last symposium in the USA, dedicated to Methods in International Law, theimportance of CLS was pointed out. The movement researched what the law consists of, orthe relevance of the law to politics, focusing on contradictions, hypocrisy and falseinternational legal discours. A group of authors around CLS, that often referred to itself asto a New Stream emphasized the importance of culture for the development of law, andoffered a critique of the progress of the law in confrontation with state sovereignity(American Journal of International Law, April 1999, Vol. 93, No. 2, pp. 294)28R. A. Posner: Law and Literature, Harvard, 1988.

Conteporary American Jurisprudence and Serbian Theory of Law... 31In addition to the previously mentioned streams, Posner also includesfeminism, comunitarianism and multiculturalism in contemporary Americanjurisprudence 29 .IIIn our theory of law after having been dominated for nearly half acentury by the almost exclusive conception that the law was the will of theruling class, and that the state was the organization with the monopoly on physicalviolence, pluralism is beginning to replace this view in the comprehension ofthe law. Besides that, a new attitude has been ”breaking through” during the lasttwo decades – an attitude that believes that values such as human dignity,justice, freedom, tolerance are the criteria for both the foundation of the lawand compulsory legal norms 30 .Values as attributes of the notion of the law can be found in such authorswho, rather than advocate natural law theory, support integralism. ”Law is not aplain norm but expresses a specific social process for which a certain type ofsocial relations, values and norms are typical”. In other words, ”law is a realitywhose purpose is to be at the service of the society, its order, its peace and itsmaintenance. While basic values are: legal safety, and legal eiciency, orpreservation of man and society.” 31 It is clear that law can be perceived as awhole only through integralism, though it does not merely serve to preserve butalso develop man and society as well.During last few years we have increasingly seen more respectableauthors estimating that there has been ”a renaissance of the idea of the naturallaw”, and that our and American theories are getting closer .A complete, original and developed conception of natural law can befound in the work of prof. Slobodan Perović 32 , founder and main representative29R. Posner: The Problems of Jurisprudence, Harvard, 1993, pp. 393 etc.30In contemporary philosophy of law, in the world a certain jusnaturalism appears not onlyin a political sense of human law, but more in a legal sense of faith in a function and naturalfunctioning of law and lawyers. (R. Sève: Avant-Propos, Archives de philosophie du droit,1988, t. 33, 21). Relation between the justice and law ant the role of justice in law andthrough the law are particularly considered by Ch. Perelman, M. Villey, J. Rawls , R. Nozik,F. A. Hayek, G. Hoffe, and others.31S. Blagojević: Pravo i stvarnost (Law and Reality), Belgrade, 1995.32S. Perović: Pravno-filozofske rasprave (Legal and philosophical discussions), Belgrade, 1995.

32Gordana Vukadinovićof the Kopaonik School of natural law 33 . The Kopaonik School of Civil Lawgrew into the School of Natural Law. The Kopaonik School, especially during itsperiod of isolation from world heritage and general legal culture, has not onlybeen ”a scientific but a cultural success that cannot be compared to any other inthe world”. Works printed in volumes of a publication Pravni život (Legal life)are proof of the most serious scientific and expert critique of the law and thestate during an extremely diicult totalitarian and authoritarian period. In thatwork, we can see that two critically oriented approaches – CLS in America andthe Kopaonik School have certain similarities despite their dierent theoreticaland methodological foundations.The first conclusion that strikes us is that natural theory of the law inboth the United States and Serbia puts an emphasis on the same demandsregarding ”the quality and the quantity of the law” 34 . L. Fuller starts with thelaw that one can respect, which has a minimum of morality. Unless legal normsdo not contain a minimum of morality, they cannot be eicient and thereforethey cannot be called legal at all. Fuller vividly describes the most obvious waysfor the legal system to end in failure or a catastrophe. They are: first of all 1) thesituation where rules are not established and each case is solved ad hoc; then, 2)if legal rules are not published and are not available for the use of those who areexpected to obey them; or 3) if retroactive action is misused, that does not onlyprevent the eect of the norm in the future but also endangers the integrity of therules, the fact that they are prospective in eects; or 4) rules are expressed inincomprehensible terms; 5) rules contradict one another; 6) passing of the rulesthat demand impossible behavior; 7) frequent changes of the rules that result inthe incapability of the subject to act according to them; and at the end 8) failureto synchronize published rules and their application. 35 In other words, Fullerholds that the existence of any of these shortcomings not only results in a badlegal system, but something that cannot be called a legal system at all. Naturally,man cannot have a moral obligation to obey a legal rule that does not exist,which he does not know of, is being created at the moment when he has alreadyacted according to another rule, is incomprehensible, contradictory with33B.S. Marković: Poruka učesnicima savetovanja, (Message to the participants of theconsultation), Pravni život ( Legal life), 1995, No. 1-2, pp. 1934S. Perović: Pravno-filozofske rasprave (Legal and philosophical discussions), Belgrade, 1995.35L.L. Fuller: Moralnost prava (Morality of Law), Podgorica, 1999, pp. 42 etc.

Conteporary American Jurisprudence and Serbian Theory of Law... 33another rule from the same system, requests something impossible, or which isbeing changed from minute to minute 36 .Most authors in our literature agree on the fact that one of the keyreasons for legal ineiciency is the great degree of incoherence between socialreality and law, ”in the sense of necessary dose of legitimacy of the law, andthrough a variety of nuances, to its formal and essential disharmony” 37 . Evenso, a faith that with law anything can be regulated still exists and it is obviousthat, although powerful, the law is not an omnipotent instrument 38 . Other flawsin the law can be added: hasty solutions, taking the solution of the ”others” thatdoes not correspond to the reality, the often equivocal language of the law andits complicated messages with multiple possibilities of interpretation 39 . All theseflaws lead to other legal flaws and it becomes enormous, disharmonic, subjectto change, and therefore diicult if not impossible to apply at all 40 .Both our and American philosophical thoughts give solutions to thesame questions in order to achieve a realization of the legal state, that is to saythe Rule of law. At their core, all of these discussions have the basic problem,which is according to Fuller ”the morality of the law”, the question of therelation of the law to moral values.On the other hand, the ”critical approach” to law is in both spirit andname very similar to CLS. In our country the Kopaonik School of Natural Law,was developed on the basis of the natural law and has been gathering at itsannual December meetings around 2000 lawyers, in the volumes of the reviewPravni život (Legal life), and in about 4000 works, a combination of theory andpractice. Additionally it oers a severe and thorough critique of the existing lawand visions of possible solutions.Other than the previously mentioned similarities, one could then askwhat the influences of Anglo-American jurisprudence 41 are on our theoreticalattitudes in the area of university education 42 . The influence of Americantheory can be observed in the area of legal ethics concerning educational issues.36Op.cit., pp. 43 etc.37S. Perović: Pravno-filozofske rasprave (Legal and philosophical discussions), Belgrade, 1995.38Op. cit., pp. 38639Op. cit., pp. 39440Op. cit., pp. 395 etc.41Theme number: L’Américanisation du droit, Archives du philosophie du droit, T. 45, 200142We are leaving aside an important area of practical reception, above all the practice incontractual law.

34Gordana VukadinovićAt the initiative of the American lawyer’s association (Bar) Legal ethics hasbeen introduced as an optional subject in the programs at our Faculties of Law(Schools of Law) 43 . Despite causing some program, literary, and organizationaldiiculties, the subject has attracted greater numbers of students in the past fouryears, in large part because of its new method (e.g. use of the case study),current topics, and problems. Over the past four years, the group has increasedfrom 40 to 300 students, with participants attending lectures in legal ethics. Itsconnection to practice and some of the most eminent legal associations andexperts, namely the Lawyers’ Association of Vojvodina, has additionally improvedthe quality of the program and influenced the number of students.When it comes to educational programs and research works, we wouldlike to point out that individual research in the area of American jurisprudencethe post-graduate studies in theory of law started more than a decade ago. Lateron, they grew into a single coherent and integral research task. In that perspective,the concrete results are two finished master theses while a third is being preparedat this moment. A doctoral thesis is also being prepared on the iusnatural theoryin America. Moreover we have presented the main developmental streams inAmerican jurisprudence in a legal theory textbook 44 for first year students ofFaculty of Law. A monograph, entitled Legal Thought of the 20 th Century 45 , wassubsequently printed with an important part dedicated to Rawls, Dworkin,Fuller, Finis and Pound. We have done much more, and numerous articles,supplements, and presentations are evidence of that. Of course, ”the list” ofinfluences does not end there. We could also talk about other spheres of influence,but when it comes to the areas of theory and legal philosophy, we have done alot to bridge our experiences and consider these eorts to be a small part of ouroverall potential and aspiration.43G. Vukadinović, S. Beljanski: Deontološka etika i pravno obrazovanje (Deontological Ethicsand Legal Education), Pravni život (Legal life), No. 7-8, 2004, pp. 12244G. Vukadinović: Teorija prava (Theory of Law), Vol. 2, Petrovaradin, 200645R. Stepanov, G. Vukadinović: Pravna misao XX veka (Legal Thought of the 20 th Century),Petrovaradin, 2000

3 Prof. Agneš Kartag-Odri, PhDFaculty of Law, Novi Sad, SerbiaNEW PERSPECTIVES IN AMERICANLEGAL THEORYAbstract: The author’s intention is to identify the concepts that havestructured feminist legal theory in the late 20 th century in the USA. Her eort isto trace the variety of ways in which these concepts have been transformed,critiqued and appropriated. At its results, there are some ’key words’ in legalfeminism that are becoming a part of scientific debates and legal terminology.Since these terms are finding their place in Serbian legal and political thinking,the article starts with defining basic terms and naming the disciplines. Feministlegal theory is expressed by a triangular model: women–legal theory–law reforms.Since feminist theory is not monolithic, and it is not constructed as a relativelyunitary genre, the central part of the article is devoted to liberal, radical, culturaland dierence feminism.The conclusion contains some possibilities of how to create some attachmentto legal feminism in order to ensure the visibility of relevant feminist topics, whichmay result in law reforms, new laws, mechanisms and institutional changes forthe improvement of women’s human rights.Key words: feminist legal theory, feminist jurisprudence, dierencefeminisms, women’s human rights”Like people and schools of criticism,ideas and theories travel – from person toperson, from situation to situation, from oneperiod to another, and as theory travels, soit is transformed by its new uses, its newposition in a new time and place.” 11Said, E.: The world, the Text and the Critic (London: Vintage) 1983:226

36Agneš Kartag-OdriI IntroductionThe aim of this paper is to identify the concepts that have structured legalthinking in the period since the second half of the 20 th century, indicating theirprovenance in ”travelling theory” in the USA. On their way these ideas anddiscourses meet with other traditions of thought and practice, producing pluralforms, which in turn circulate within transformed theory. Since most culturesare (as a consequence of globalization), interwoven, none are single or pure. Onthe contrary: they are rather heterogeneous and non-monolithic. 2 No longer is itpossible to speak about a singular legal theory, nor has this been a one-way process.Legal feminism has also travelled a long way (since liberal feministsdemand the right to equality, based on neutrality and sameness). In academiccircles and university curricula, legal feminism is becoming increasinglyaccepted as a force, but it is powerful as a movement of potential that is capableof producing; transformations of reforms in the legal system and policy.Feminist legal theory and feminist politics of the 1990’s in the USA have afresh set of priorities, with an emphasis on women’s human rights, with arenaissance of feminist theory in law and in academic knowledge. These newlyrecognized ideas might end in law reforms for the improvement of women’sposition and of their human rights. The tendency is to reconceptualize theknowledge itself, which academic feminism reflects in a new institutional practice.On its way of travelling, the altered understanding about gender hasemerged in a number of disciplines. Feminist theory has taken a prominentplace not only in literature but also in law, anthropology, economy, history,medicine, media, psychoanalysis, and sociology. Therefore, not avoiding aninterdisciplinary approach, we shall focus on feminist contributions in law(including legal feminism, feminist jurisprudence, and feminist scholarship in law)and its impact on law reforms and changes in the legal system and institutions.Contemporary legal feminists (western and non-western, especially thosewho are seeking accession to the EU) ask some fundamental questions aboutgender and human rights using the EU framework to secure equality, non--discrimination, and airmative action, and to fight degradation, exclusion, andviolence.Our intention is also to emphasize a strong association and substantialainity between feminism and theories of human rights, since rights have a2Said, E.: Culture and Imperialism (London: Chatto and Vindus) 1993: XXIX

New Perspectives in American Legal Theory 37crucial place not only in modern jurisprudence and political thought, but alsoin campaigning for gender equality. One of the reasons for this is that bothfeminism and human rights have grown out of similar and specific culturalhistories. Because of this connection, feminist legal theory might provide auseful basis for critical appraisal of the modern culture of human rights.In current debates about the human rights of women, feminist legaltheory has a strong, reconstructive and normative voice: it engages not only inanalysis and critique of the current law, but also in reformist arguments abouthow law and institutions might be otherwise.Our starting point is that a coherent school of thought needs to beestablished around a concrete object of study. In a case of legal feminism, itwould be a figure of a woman. Feminist theorists of law not only study her legalposition, but also oer her legal help, especially when she is in the position of thevictim. Within this formulation, legal feminists seek a theoretical model thatwill provide them with suicient normative base, suggesting progressivemovement in a global context.Better legal theory will make law reforms to meet the needs of women.Therefore, we shall have in mind the following triangular model: women–legaltheory–law reforms. This model, created by feminist legal theorists, is a schemethat could bring into relation feminism, legal theory and practice, producingchanges and reforms in law both on the national and international level.The Republic of Serbia is in the process of adopting new constitution, anew law on gender equality, and an anti-discriminatory law. High hopes are setfor the time when they come into force. These drafts already reflect theimportance of including gender perspectives, gender sensitive language, andprinciples of non-discrimination on the basis of race, ethnicity, gender andsexual ailiation. They also contain ideas for (re)construction of the rights inways responsive to legal feminist critique in order to better a woman’s position.To do this, one also needs the theoretical knowledge of legal feminists and theirmodified application to its own legal, socio-economic, cultural and politicalcontext. These drafts contain the above-mentioned ideas about the intimaterelationship between the general human rights observance in Serbia and thestatus women enjoy in the state – not only because respect for human rightsimplies the rule of law and a well-established and independent judiciary. It alsoopens the universal question of access to power and decision – making it thesocio-economic and political sphere. In all these areas, women continue to facediscrimination, despite the promulgation of domestic and international

38Agneš Kartag-Odristandards that espouse equality. Therefore, it is crucial for the new constitutionand new laws (on gender equality, anti-discrimination, etc.) to be solid andclear guarantees of the equality of women and men and a reliable guide for theactivities of legislators to keep in mind the basic idea of feminist legal theorists.II A Need for Legal Feminism and the Uses of LawIn order to avoid terminological misunderstandings and conflicts, it isimportant to start with defining the notions of the basic terms and naming thedisciplines that will be used in this paper. It is well known that theory and sciencedier from practice or activity. Law as a ”good reason for action” also consists –as its integral part – of practice and theory or scholarship (with the latter dividinginto normative legal theory, commonly known as jurisprudence or legal theory)and empirical legal science (which subdivides into sociology of law, psychologyof law, etc.). 3Normative legal science is a discipline that interprets and systematizeslegal standards (values, norms, principles, etc.) with a view of facilitating theirapplication in legal practice. In Continental Europe, legal doctrine has been mademainly in academies, by law professors, while in the Anglo-American world it ismostly a creation of judges. Legal scholarship can be seen as a bridge betweennormative and empirical legal theory, a necessary connection between politicalideals and political action. We will use and apply this classification also in thecase of feminist legal theory as an academic discipline and a school of thought.Nevertheless, before doing so, we have to answer a preliminary question: what isfeminism and is there a minimum content to it?In legal and political thinking, few topics have stirred a storm such asfeminism. The movement spread all over the world challenging previously stablevalues and power relationships and render anxious changes. 4 Historically, asseen later, there have been many feminisms grounded and defined dierently.Our preliminary definition of feminism incorporates the following: a doctrineof equal rights of women and an ideology of social transformation aiming to3”Jurisprudence is often referred to as ’the’ science of law, ’the’ theory of law.” Scoular, J.:”Feminist Jurisprudence”, in: Jackson, S. – Jones, J. (ed.): Contemporary Feminist Theories(New York University Press) 1998:684Monori, G.: ”Feminist Jurisprudence in the 21st century”, u Andrássy. Gy. – Visegrády, A.:Jog és jogászok a 21. század küszöbén, (Pécs: JATE) 2004:56

New Perspectives in American Legal Theory 39create a world for women beyond simple social equality, 5 including the necessaryreforms in the legal system.However, a couple of indices seem to be the irreducible minimums (oraspects) which constitute the imperative of feminism. Minimally, the term impliesthe ”identification of women as systematically oppressed”. 6 (This is becausethere are so many clear examples of the continuation of power structures thatovertly work against women) This feature leads us to the second aspect whichstresses that ”so much of what feminist scholars and activists do now, isnecessarily strategic and contingent.” 7 The third minimal content that has to bepresent is the feminists’ commitment to change and a refusal to accept thecircumstances which continue to operate against women.These aspects, among others, that constitute a force and a field of activitywithin which feminists pursue their divergent interests and needs. It is alsopresumed that feminism needs to achieve a certain ontological status in orderto exist as a category, without which, it cannot take a place within the academynor will it be able to enter a dialectal relationship with other sciences or theoriesas an equivalent partner.Feminist theoreticians often attack abstract universal theories on thesocial world, including law. Yet, many have attempted to oer a feminist version ofjurisprudence or a theory as a scientific and objective truth, or to construct anentire legal theory of women’s oppression, valorizing gender dierences. It isimportant to stress out that there is a dierence between ”feminist legal scholars”and ”legal feminists”. Feminist theoreticians have also tried to find a model thatcould bring into relation legal theory with practice, focusing on law reforms.Who are feminist legal scholars? The term suggests that they are ”morethan feminists working in law” with the commitment to their feminism, andtheir ”work is constituted in a form that suggests a school of thought”. 8 Feministscholarship is a looser formulation than legal feminism. It might connotate amuch broader range of scholarship undertaken by feminists as feminists. 95Humm, M.: Modern Feminism:Political, Literary, Cultural (New York: Columbia UniversityPress) 1992:4066Andermahr, S. – Lovell, T. – Wolkowitz, C.: A Glossary of Feminist Theory, (London: Arnold)2002:937Bottomley, A.: ”Shock to Thought – An Encounter (of a Third Kind) with Legal Feminism”,Feminist Legal Studies , 00/2004:328Naffine, N.: ”In Praise of Legal Feminism”, Legal Studies 22/1, 2002:809Bottomley, A.: op. cit. p. 35

40Agneš Kartag-OdriOn the other hand, according to some theoreticians, legal feminism focuseson women as victims within a legal system. 10 It also focuses on how gender shapeslaw, reveals harm, and produces change in law. This tripartite configuration isin the centre of legal feminism. It suggests a series of moves from gender toharm to reform (and from general theory to specific example to proposal forchange). Therefore, feminist work is presented by the formulation: placing womenin the centre of an exploration of the gendered content of law and consequentlyseeking a strategy for change. In short, we can conclude that the general purposeof legal feminism is revealing harm to women, often caused by law. This requiresthat women as objects of study become visible. In this article our concern will bethis particular notion of legal feminism – while we have to keep in mind all therelativity and the diiculties that occur in the process of naming our disciplines anddisciplining the diicult, awkward and uneven features of feminist legal theory.But it was necessary to be done for recognition – inclusion of the discipline into theacademy at a particular level, as a school of thought, as a body of knowledge thatcan be presented within terms that the academy recognizes as ”legal theory”. 11III The Role of Law in Constituting the Social Meaning of GenderCentral to the feminist approach is the rather sharp distinction betweensex and gender. In short, in Anglophone feminist theory sex was understood asa bodily or biological category, and gender as the socially constructed meaningof sex. 12 This distinction was adapted to dierentiate the socio-cultural meaningsof ”masculinity/femininity” from the base of biological sex dierences of”male/female”. According to some feminists, 13 women’s biological structureaects not only their psychic identity but also their place in gender hierarchy. Itis the legal system’s reinforcement of these sexualized (dominant and subordinate)10ibid. p. 1211There might be certain linguistic, terminological, and technical difficulties as a consequenceof translating these terms from English into other languages. It is likely that outside theEnglish-speaking countries, the terminus technicus such as ”feminist scholarship” will notbe popular, and it will presumably be replaced by the term feminist jurisprudence, feministlegal theory or legal feminism. See also Zorica Mršević – Ka feministickoj jurisprudenciji.htm27. 02. 200612The distinction was formulated in 1968 by psychologist Robert Stoller, and was taken up inearly ”second-wave” feminism. Stoller, R.: Sex and Gender (London: The Hogart Press) 196813Scoular, J.: Feminist Jurisprudence, p. 65

New Perspectives in American Legal Theory 41positions that form the central focus of radical perspectives of law. Though thisdistinction very soon gained its critics, 14 it played an important role in shiftingthe political and intellectual focus to the role of law in constituting the socialmeanings of gender. The ”law and gender” approach presented the frameworkof sex/gender division as a general category for critical legal analysis, andopened up the possibility that the law’s contribution to the sexing or genderingof its subject might interact with other social forces, constituting a multiplefemale subject position. It assumed not only a powerful and dynamic role of lawin the constitution of gender, but also a wide ranging and potentially radical lawreform agenda. Furthermore, it opened up the possibility of incorporating sexualorientation in the critical analysis of the law’s constitution of gender, promisingfinally to explode the myth of sex/gender as exclusively ’a woman problem’.Contemporary feminist legal theory is constructed out of a combination ofanalytic and political-ethical claims. Analytically, the claim is that sex/gender is oneimportant structure of social dierentiation and therefore it might have influence inshaping the law. Politically and ethically, feminist legal theory starts out from theassumption that the ways in which sex/gender has shaped the world, includingthrough the law, have been unjust, consisting also in domination, oppression anddiscrimination. It is well known that legal sex dierentiation on the whole is adisadvantage to feminist legal theory as it is not constructed as a relatively unitarygenre. Therefore, it is important to generalize among them, showing its truevariety. The following part shows the strength of the feminist work in law and theattempts to pull all these heritages together. It will be recognized that feminists havestruggled with a number of issues surrounding the study of women.IV Dierent Versions of Feminist (Legal) TheoryCompulsory feminist theory is extremely diverse. A significant movementwithin feminism towards theorizing multiplied this variety, 15 but the commitment14The concept of gender has been criticized on the grounds that the gendering of people,actions and things within culture is always implicated in differences other than those of sex.There is a powerful case that masculinity and femininity are constructed not alongside race,class, ethnicity and nationality, but in and through these and other distinctions, and that itis misleading to privilege sex in accounts of the social construction of masculinity andfemininity. Andermah, S. – Lovell, T. – Wolkowitz, C.: A Glossary of Feminist Theory, p. 10315This process includes, among others, psychoanalytic or post-structuralist theory andjurisprudence.

42Agneš Kartag-Odrito eliminate the subordination of women unified the diverse strands of feministtheory. 16 However, this agreement soon dissolved into radically dierent accountsof that subordination and of the measures required to eliminate it.It is crucial to emphasize that distinctions between feminisms are nothard or fast. On the contrary: the lines cross and recross. 17 Feminism(s) createda rich source of social, legal or cultural theory and practice, which has had amajor impact on law and culture. Because of these processes, we have to realizethat these are models rather than detailed taxonomies: some writers fall betweenseveral of the classifications. The categories are useful both in understandingthe development of feminist thought and in seeing how dierent (political)orientation have led feminist legal scholars to take up opposing positionsconcerning the deployment of legal rights as a framework of analysis of politicaland legislative strategy.In this part, we shall focus on some basic feminist criticism of the waymainstream (political) theories attend, or fail to attend, to the interest and concernsof women, discussing liberal, radical, cultural and dierence feminism.1 Liberal Feminism – The Feminism of EqualityLiberalism has become the dominant political expression of progressivethought in the modern age, but it encompasses a range of doctrines. The generalidea could be that liberalism centres on core ideas of autonomy, of universalrights, of equal citizenship, and of democracy, but exactly what these ideasamount to has varied over the decades.Liberal feminism has most often been characterized as feminism ofequality, 18 sharing an ”egalitarian plateau”, or a commitment to the idea that allmembers of the community should be treated as equals. 19 Liberal feminism hasbeen particularly associated with the ideas of formal equality and of equality ofopportunity, although contemporary liberal theories such as that of Ronald16Jaggar, A.: Feminist Politics and Human Nature (New York: Rowman and Allanheld)1983:517Andermarh, S. – Lovell, T. – Wolkowitz, C.: A Glossary of Feminist Theory (London:Arnold) 2002:22218ibid. p.4819Kymlicka, W.: Contemporary Political Philosophy, An Introduction (Oxford UniversityPress) :376

New Perspectives in American Legal Theory 43Dworkin also subscribe to stronger principles of equality, such as equality ofresources or equality of concern and respect. 20It is important to give a short analysis of some of the arguments made byfeminist critics of liberalism. An initial stage of feminist criticism of law is oftenassociated with the identification of sexual equality with equal treatment, rejectingany notion that the law should tolerate or recognize intrinsic dierences betweenwomen and men. 21 The strategy taken over by liberal feminists is to demand thelaw to fulfill the liberal claims for its objectivity and principled basis. They haveworked for reform of the law, dismantling legal barriers to women being treatedlike men in the public sphere. The assumption is that the disadvantages sueredby women can be compartmentalized and redressed by a simple requirement ofequal treatment. This approach adopts the vocabulary, epistemology and politicaltheory of the law as it operates at present. 22 According to this approach, prohibitionon sex discrimination promises equality to women who attempt to conform to amale model of behaviour and oers little to those who do not. The problem withsuch an approach is that it is inadequate to ”criticize and transform a world inwhich the distribution of goods is structured along gender lines.” 23 It assumes a”world of autonomous individuals starting a race or making free choices [which]has no cutting edge against the fact that men and women are simply runningdierent races.” 24 The language of ”equal rights” and ”equal opportunities” tacitlyreinforces the basic organization of society. 25The subsequent general feminist criticism of liberal theory, and a recurringtheme in feminist legal scholarship, is the analysis of the distinction betweenpublic and private spheres. This dichotomy assumes the public sphere as asphere of rationality, order and political authority in which political and legal20Dworkin, R.: Sovereign Virtue: The Theory and Practice of Equality (Harvard UniversityPress) 2000:1; 6521Lacey, N.: ”Feminist Legal Theory and the Rights of Women”, in Knop, K (ed.) Genderand Human Rights (Oxford University Press) 2004:2022Charlesworth, H.: ”What are ’Women’s International Human Rights?”, in: Cook J., R.(ed.): Human Rights of Women – National and International Perspectives (University ofPennsylvania Press) 1994:63-6423Lacey, N.: ”Legislation Against Sex Discrimination – Questions from a Feminist Perspective”,Journal of Law and Sociology, 14/1984:411, 41524ibid. p. 42025Dalton, C.: ”Where We Stand: Observation on the Situation of Feminist Legal Thought”,Berkeley Women’s Law Journal, 3/1987-88:1, 5

44Agneš Kartag-Odriactivity take place, and the private sphere as a ”subjective” one in which regulationis not appropriate. Domestic and family life is typically regarded as the center of theprivate world 26 . In western society, women are relegated to the privacy of homeand family. The public sphere (of the workplace, law, economics and politics, andintellectual and cultural life) is regarded as the province of men. This phenomenonhas been explained as a matter of nature, convenience, or individual choice. Onefeminist answer to these claims is that the public/private distinction in fact operatesboth to obscure and to legitimize men’s domination of women. The public/privatedichotomy is gendered: it is a ”metaphor for the social patterning of gender, adescription of sociological practice, and a category grounded in experience.” 27 It isalso a normative distinction, since greater significance and power is attached to thepublic, male world. The assignment of women to the domestic sphere entrenchestheir inequality with men, for women are regarded as dependent on men forsubsistence. Moreover, the privacy of domestic life makes women’s concernsinvisible and ensures preservation of the status quo.The feminist concern with the public/private dichotomy in (western) legalthought looks at the way that the law has been used to exclude women from thepublic sphere – from professions, from the vote, etc. Analyzing the distinctionin this sense can be particularly useful in the area of human rights law.Why is the lack of regulation of particular areas of social life significant forwomen? Some feminist legal scholars argue that ”the absence of law devalueswomen and their functions: women are simply not important enough to meritlegal regulation”. 28 However, it is important also to recognize that a deliberatepolicy of non-intervention by the state does not signify non-control or neutrality. 29The regulation of areas such as employment, taxation, social security, and crimehas a significant impact on the private sphere and reinforces a particular sort offamily unit – a nuclear family in which there is a division of labour between26The distinction between public and private spheres is drawn by theorists in a variety ofways. For example, it can refer to the distinction between politics and economic and sociallife or between state and society. Carol Pateman discusses some of the complexities of thedistinction in ”Feminist Critiques of the Public/Private Dichotomy”, in Public and Privatein Social Life, ed. Benn I., S. – Gaus F., G. (New York: St. Martin’s Press) 1983:281, 28527Garmanikow, E.: ”Introduction” in the Public and the Private, ed. Garmanikow, E. et al.(New York: St. Martin’s Press) 1983:1, 528Taub, N. – Schneider, M., E.: ”Perspectives on Women’s Subordination and the Role ofLaw” in Politics of Law, ed. Kairys, D. (NY: Pantheon Books) 1982:12229O’Donovan, K.: Sexual Division in Law (London: Weidenfeld and Nicolson) 1986:7

New Perspectives in American Legal Theory 45men and women. 30 The lack of direct intervention by the state in the name ofprotection of privacy can thus disguise the inequality and domination exercisedin the private sphere. 31 In western domestic legal systems, the distinction betweenpublic and private speaks for the sexual violence on which patriarchy is based: itcreates a space into which the ordinary protection of law against violence will notbe allowed to penetrate. The most all-encompassing harm against women tendsto occur right within the inner sanctum of the private realm: within the family.Therefore, in western legal systems the non- -regulation of the private spherelegitimates self-regulation, which inevitably transforms into male dominance.Consequently, feminists have questioned both the commitment of liberalismto gender-neutrality in law and legal analysis. In a world where sex/genderappears to be a basic axis of social dierentiation (although mediated throughother variables such as class, race, age, ethnicity, etc.), the question is whetherlegal subjects can generally be constructed as gender-neutral, and whether thiscan be formulated in gender-neutral language. In relation to rights, this alsoraises the question of whether a gender-neutral set of universal human rightsmight not need to be replaced or supplemented in certain areas by special rightsfor women or members of other groups. 322 Radical Feminism – The Exclusively Feminist ConceptionRadical feminism has been an influential and intellectually powerfulstrand in contemporary feminist legal theory. It is often claimed to be the mostautonomous and distinctive conception of feminism in that it is exclusively afeminist theory. Originating in North America, it was born out of dissatisfactionwith radical left-wing politics and gave the ”second wave” of the women’smovements a cutting edge in the late 1960s and early 1970s. 3330ibid. p.14-1531Charlesworth, H.: What are Women’s International Human Rights, p. 7032In this context, the UN Convention on the Elimination of All Forms of DiscriminationAgainst Women (CEDAW) (New York, 18 Dec. 1979, in force as of 3 Sept. 1981, 1249 UNTS13) is of particular interest, carefully positioned as it is between a universal conception ofhuman rights and a woman-centred political focus.33”Second -wave feminism” was commonly used to refer to women’s liberation movementfrom the late 1960’s chiefly in North America and Europe. ”First-wave feminism” culminatedin a number of gains for women including the right to vote in the late 19th and early 20 thcentury. Andermahr, S. – Lovell, T., – Wolkowitz, C.: A Glossary of Feminist Theory (London:

46Agneš Kartag-OdriAt the same time, it is diicult to set out any unifying features of radicalfeminism. At the risk of stereotyping, we could say that radical feminists viewsexual dierence as a factor bearing a certain priority in social life: they see sexdierence as more ’radical’ or basic than, for instance, class dierence, or racial, orethnic dierence. To radical feminists, sex dierence is as structural as classdierence is to Marxists. 34In her groundbreaking work, MacKinnon states: ”Sexuality is to feminismwhat work is to Marxism; that which is most one’s own and yet that which ismost taken away.” 35 She also claims that the state is categorically male, and itlegitimizes male dominance by enforcing its epistemology through law. Womenare defined in law (as well as in society) by expropriation of their sexuality. 36Radical perspectives on the law are antithetical to liberal notions in thatinequality rather than equality between individuals is assumed. The fact thatwomen are not equal is seen not only as a question of dierence but also as amatter of unequal distribution of power: ”Gender... is a matter of dominance,not dierence... The dierence is that men have power and women do not.” 37Radical theories focus on the central issue of power, being less concernedwith the narrowness of legal doctrine and its inability to recognize dierences. Theproblem is ”...not that dierences are not valued; the problem is that they aredefined by power.” 38 Law reinforces, and legitimizes this objectification: ”Law isnot neutral (as it claims to be) vis-à- vis the gender divide; law is male.” 39 Law keepswomen ’out and down’ by preserving a hierarchical system based on gender.MacKinnon also describes an alternative legal analysis of inequality forwhich the central question is always ”whether the policy or practice in questionintegrally contributes to the maintenance of an underclass or a deprived positionArnold) 2002:223; 238 see also Nedović, S.: Savremeni feminizam – položaj i uloga žene uporodici i društvu, (Beograd) 2005:4134MacKinnon, C.: Toward a Feminist Theory of the State (Cambridge, MA: HarvardUniversity Press) 1989:12435MacKinnon, C.: ”Feminism, Marxism, Method and the State”, Journal of Women in Cultureand Society 3/1982:51536MacKinnon, C.: Toward a Feminist Theory of the State, p. IX37ibid.38ibid. p. 839Cornell, D.: Beyond Accommodation: Ethical Feminism, Deconstruction and the Law(London: Routlege) 1991:121

New Perspectives in American Legal Theory 47because of gender status.” 40 Some of the critics of this theory 41 stress thatMacKinnon’s approach is not always easily applied because many of therelationships of subordination sanctioned by the law are so deeply embeddedthat they appear quite natural. It involves looking ”for that which we have beentrained not to see... [identifying] the invisible.” 42 If the issue of inequality isredescribed as one of domination and subordination, sex discrimination laws thatsimply promise equal treatment appear of limited utility. Catharine MacKinnonhas worked rather for an expansion of the domain of the law to cover traditionallylegally unrecognized harms of particular concern to women such as sexualharassment and pornography. She argues that the feminist project in law is tolegitimize the real injuries that women suer in order to make them unacceptable.This is a way, though a slow one, to transform gender relations. UsingMacKinnon’s analysis, other feminist lawyers have described discriminations atthe workplace and other institutions where practices are more compatible withculturally defined male life partners than female ones. 43Some of the ideas of radical feminism, therefore, might be identified inthe following: women are oppressed as women, and their oppressors are men,and male oppression has primacy over all other oppressions. In this way, radicalfeminism was responsible for uncovering the extent of violence against women,sexual harassment, 44 and the role of law in maintaining pornography as ”aninstitution of gender inequality... [which] like rape... fuses the eroticization ofdomination and submission with the social construction of male and female.” 45Like liberal feminism, radical feminist thought has been subject to apersuasive critique. One of the points of criticism has been the relatively limitedsubstantive focus. Most radical feminist lawyers focus on a very particular set of40MacKinnon, C.: Feminism Unmodified, p. 341Charlesworth, H.: ”What are Women’s International Human Rights?” in: Cook, R. (ed.)Human Rights of Women (University of Pennsylvania) 1999:6742MacKinnon, C.: Sexual Harassment of Working Women (New Haven: Yale UniversityPress) 197943Littleton, A., C.: Equality and Feminist Legal Theory, University of Pittsburgh Law Review,48/1987:104344Monori, G.: Feminist Jurisprudence in the 21st Century in: Visegrády A. – Andrássy, Gy.(ed.) Jog és jogászok a 21. század küszöbén (Pécs: JATE) 2004:5545MacKinnon, C.: Feminism Unmodified, p. 148; On pornography see also: Dworkin:Pornography: Men Possessing Women (London: Women’s Press) 1981

48Agneš Kartag-Odriissues, i.e. those around sex, sexuality, and reproduction. 46 In addition, asubsequent object of critique has been the status of radical feminism as the socalledgrand theory. More pluralistic feminists have objected to radical feminism’smonolithic theory of ’patriarchy’, which is insensitive to comparative socialdierences about crucial points like ethnicity and class. 473 Cultural Feminism – Women’s Voice in Legal ContextA development out of radical feminism, cultural feminism is a label thathas been applied to a form which puts forward the existence of women’s culture,and which privileges culture in its analyses. 48 Like other early second-wavefeminisms, (like liberal, radical, or Marxist) cultural feminism shared theoverwhelming consensus that the dierences in nature between sexes were ofsmall significance, but were magnified through ideological cultivation. 49 In otherwords, the dierences in question are held to be cultural and psychic rather thannatural and inevitable. The essence of this form of feminist jurisprudence is theidentification of a distinctive ”woman’s voice” in the legal context and a reevaluationof the contribution it can make to legal doctrine. The work of thechild-psychologist Carol Gilligan has had a particular influence on thedevelopment of cultural feminism. 50 She notes the disparity between women’sexperience and the representation of human development contained inpsychological literature. The usual interpretation of this phenomenon was thatit indicated problems in women’s psychological development. Gilligan turns thisanalysis upside down by arguing that the failure of women to fit existing modelsof human growth suggested a limitation in the notion of the human condition.The hypothesis drawn from Gilligan’s research by feminist legal scholars in thecontext of national legal systems is that just as traditional psychological theorieshave privileged the male perspective and marginalized women’s voices, so lawalso privileges a male view of the universe. Many feminists have pointed out that46Lacey, N.: Feminist Legal Theory and the Rights of Women, in: Knop, K. (ed.) Genderand Human Rights (Oxford University Press) 2004:2447ibid.48Segal, L.: Is the Future Female? Troubled Thoughts on Contemporary Feminism (London:Viraga) 198749Andermahr, S. et al:A Glossary of Feminist Theory, p. 4850Gilligan, C.: In a Different Voice: Psychological Theory and Women’s Development(Cambridge, MA: Harvard University Press) 1982

New Perspectives in American Legal Theory 49law is part of the structure of male domination. Its hierarchical organization, itsadversarial format, and its aim of an abstract resolution of competing rightsmake the law an intensely patriarchal institution. The law represents a verylimited aspect of human experience. The language and imagery of the lawaccentuate its maleness: it lays claim to rationality, objectivity and abstraction,characteristics traditionally associated with men, and is defined in contrast toemotion, subjectivity, and contextualized thinking, the area of women. 51Concerning legal reasoning, Gilligan also attempted to explain why women’smoral voice was devalued in contemporary moral theory, including law. 52 Underthe standard ethical scheme, she found that rights were assumed to be the normand that any deviation was ascribed lesser value. This coincided with the discoverythat women were more inclined to have an ethical outlook that valued care asopposed to rights. Thus in system of moral reasoning women’s voice wassystematically devalued. Gilligan concluded that our ethical systems of justice mustdevelop to take in the excluded feminine ethics of care. 53 Her study suggests thatmen and women see matters such as justice and equality dierently; therefore, atheory that seems appropriate for one group might not be for the other. Accordingto the female view, the world (including the state) is not a ’hierarchy ladder’ wherehuman interactions are seen as individuals competing for positions. 54 Quite thecontrary: according to the female view, the world/state is a web of relationships.Therefore, they are not concerned only with climbing ladders, but also withkeeping the web intact and with balancing everyone on it. This ”view from theweb” produces a morality with emphasis on responsibilities rather than rights.Assessing the dierences between feminine and masculine modes ofreasoning in legal systems is not without problems. 55 However, the value of51Charlesworth, H.: ”What are ’Women’s International Human Rights’?” in: Cook, R. (ed)Human Rights of Women, National and International Perspectives (Philadelphia: Universityof Pennsylvania Press) 1994:6652Scoular, J.: ”Feminist Jurisprudence” in: Jackson, S. – Jones, J. (eds) Contemporary FeministTheories, 1998: 63, 6453Gilligan, C.: ”Why Should a Woman Be More Like a Man?” in Psychology Today, June1982:70-7154As Karts puts it, ”Law is predominantly a system of the ladder, by the ladder and for theladder.” Karts, K.: ”Women’s Constitution”, Duke Law Journal 1984:46155Gilligan’s work left unanswered the question of the cause of the difference between genderedmodes of reasoning. Catharine MacKinnon has questioned the authenticity of femininevoice. The feminine – argues MacKinnon – is defined by a patriarchal culture: ”For women

50Agneš Kartag-Odricultural feminist approaches is that they highlight the almost comprehensiveexclusion of women’s experiences from the development of law and test itsclaim of neutrality and objectivity. Nevertheless, what is prominent is that in anapparently more open and flexible system, women and their experiences arestill quite broadly excluded.4 Dierence Feminism – as the Dominant Approach withinFeminist Legal TheoryThe criticism of the main genres of political feminism has, as its consequence,the emergence of a somewhat dierent set of models for feminist legaltheory which can be grouped together under the label ”dierence feminism”.Dierence feminism moves beyond standard rule of law values such as formalequality. Like radical feminism, it criticizes liberal feminism as being limited by itsessentially comparative standard (i.e. the strategy of ”assimilation of women to astandard set by and for me”). 56 Therefore, it has shifted towards a focus not only onlaw’s reflection of ’prelegal’ sexual dierence, but also on law’s dynamic role inconstructing and maintaining sexual dierence and sexed identities.Briefly, dierence feminism may be characterized in terms of the followingthemes:1) The substance of law reflects a male point of view;2) The legal subject is constituted as male, while women will findthemselves excluded, and silenced; 573) The methods of law are gendered, to the disadvantage of women; 58to affirm difference, when difference means dominance, as it does with gender, means toaffirm the qualities and characteristic of powerlessness... When you are powerless, you don’tjust speak differently. A lot, you don’t speak.” MacKinnon, C.: Feminism Unmodified, p. 4556Lacey, N.: ”Feminist Legal Theory and the Rights of Women” in: Knop, K. (ed.) Genderand Human Rights (Oxford University Press) 2004:2657ibid.58There is a link here with the influential work of the above-mentioned psychologist CarolGilligan, which identified two distinctive methods of analysis in moral reasoning. The firstone called ’an ethic of rights’ is very much law-like. By contrast, an ’ethic of care’ analysesmoral problems seeking consensual solutions. These two ethics are gendered: women tendto adopt the ethic of care, while men more often reason in terms of rights. Gilligan, C.: In aDifferent Voice: Psychological Theory and Women’s Development (Cambridge, MA: HarvardUniversity Press) 1982

New Perspectives in American Legal Theory 514) Like other feminists, dierence feminists insist that the key focus of legaljurisprudence should be, beside legal doctrine and law, how law is interpretedand enforced by legal actors;5) Dierence feminists have analyzed the substance of legal rules and theconceptual elements out of which those rules are constructed in terms of binarieslike the afore mentioned public/private distinction that supports the diiculty ofgetting domestic violence or sexual harassment taken seriously as legal issues. 59Consequently, the following conclusion can be drawn. As we have previouslypointed out, feminist legal theory is not monolithic, and there are dierent viewsamong dierent versions of feminism. Feminist legal theorists, despite thedierences in schools of thought, are united in the following basic beliefs.1) Most of them have in common that their analysis focuses on what iscommonly referred to as ”revision” – a deconstruction of the existing principlesand structures of thought and a reconstruction of how they might look ifconsidered from the perspective of women’s experience. 602) This point of agreement is the criticism of the public/private division.Related to the aforementioned dichotomies/distinction between reason andemotion, mind and body, objective–subjective, universal–particular, and public––private – the former element is associated with the male and considered superior.Feminists have examined these categories and criticized the distinction as notbeing in accordance with women’s experience or attitude toward the world. 61 In59Binary division is a feature of western thought: male – female; subject – object; public –private; form –substance; mind – body; active – passive; reason – emotion. Feminists ingeneral have asserted that these dichotomies are both hierarchized and sexualized: man isassociated with the first half of each pair, and that half has been valued over and above theother. However, strategic responses to this analysis differ as between radical and liberalfeminists. Radical feminists accept the sexualization of the divisions, but seek to reverse thevaluation, arguing for the greater recognition of the emotive, the affective, and the femininein social practice. Liberals, on the other hand, often accept the hierarchical ordering, butseek to reverse the sexualization of the dichotomies, arguing that women are every bit ascapable of reason, as entitled to inhabit the public sphere, as capable of activity and intellectualpower and objectivity, as are men. Olsen, F.: ”Feminism and Critical Legal Theory” inInternational Journal of the Sociology of Law, 8/1990:19960Irons, J., C.: A Feminist Look at R. Dworkin’s Theory of Equality, Murdoch UniversityElectronic Journal of Law, Vol. 1 No. 1/1993:2, www.murdoch.edu.au/elaw/issues/v1n1/iorns113.html61Lloyd, G.: ”The Man of Reason: Male and Female” in: Western Philosophy (Minneapolis:University of Minnesota Press) 1984

52Agneš Kartag-Odrithis respect, feminist legal theory considers that such issues are not separableeither from each other or from political or moral issues. Therefore, it is importantto enable women with or without families to participate fully in the public sphere,at the same time improving their conditions and status in the private whileattempting simultaneously to modify and/or break down the barriers betweenthe public and private. 62 It is also agreed that the private sphere should be mademore public, although to diering extents and in dierent ways, depending on theversions of feminism. 633) Feminist legal theorists are also united in their basic belief that societyis patriarchal; shaped by and dominated by men. Feminist jurisprudence, then,provides an analysis and critique of women’s position in patriarchal society andexamines the nature and extent of women’s subordination. It explores the roleof law in maintaining and perpetuating patriarchy. Feminist legal theoryexplores the theoretical issues about the interaction between law and gender,and applies the feminist analysis and perspective to concrete dierent areas oflaw, (for example: family and criminal law, human rights etc.) with a visiontoward eectuating law reforms.Having pointed out the main ideas that constituted feminist legal theory,it is also necessary to overview/identify the main axes of dierentiations betweenfeminist legal theory. Therefore, the main points of distinction anddierentiation between feminist theories follow.The first has to do with the underlying theories of sexual dierence. 64MacKinnon’s feminism has a specific view of sex dierences. The origins andmaintenance of sex dierence lie in domination grounded in the abuse of thesexual power and the exercise of the sexual dierence. This in turn implies thatthe kinds of issues that feminist legal theory should focus on are ratherdistinctive: pornography, sexual abuse, violence, and abortion.62In addition to arguing for conditions enabling participation in the public sphere, a minimumfeminist position is that a political theory or jurisprudence must not define women functionallyor relegate them to the private sphere of the family. Okin, S. M.: Justice, Gender and theFamily (Basic) 198963Jaggar, A.: Feminist Politics and Human Nature, 1983:357. Also: On liberals’ sharp separationbetween the (female) domestic world and the (male) public world see Kymlicka, W.:Contemporary Political Philosophy, An Introduction (Oxford University Press), 2002:39064In the work of MacKinnon, one could find a structural, material theory of women’soppression – analogous to the theory of class difference to be found in Marxism. MacKinnon,C.: Feminism Unmodified, p.48

New Perspectives in American Legal Theory 53The other approach is more eclectic but is unified within the problem ofidentity that is structurally gendered. It has consequences for the status ofwomen as legal and political subjects. 65 Some radical and cultural feminists seesexual dierence as rooted in women’s distinctive bodily experiences and relationthat generate a particular female ethic. This feminist view argues for arevaluation of the feminine. 66The subsequent moment of dierentiation between feminist theories has todo with the degree to which they exhibit substantive or methodologicalcontinuities with other legal and social theories. On one view, feminist legaltheory is not so much an autonomous theoretical or methodological approach,but rather a genre that places special issues on the agenda of legal theory inorder to illuminate sex/gender issues. In this view ”law is seen both a forcewithin and a product of the social construction of reality”. 67 Therefore, feministlegal theory is conceptualized as an interpretative approach, which seeks to getbeyond the surface level of legal doctrines – and which sees traditionaljurisprudence as ideological and as an apology for the status quo.Radical and cultural feminisms, on the other hand, insist more upon theautonomy of feminist legal theory on the level of method.V Why is Feminist Legal Theory Important to Serbia?Regardless of how important and necessary it is for this region to incorporatethe theoretical knowledge ”from the West” (including legal feminism), the factis that in the Serbian reality of the 1990’s, feminism often became an issue withnegative social connotation. It was also a pretext for the initiation of the ”newpatriarchy” and as its result ”anti-feminism became an act of patriotism.” 68The changes of the 90’s brought a drastic halt to many benefits, de legeequalities women enjoyed in the communist era. 69 In the war-tormented countries65Cornell, D.: The Imaginary Domain, 199566Lacey, N.: Feminist Legal Theory and the Rights of Women, p. 1867ibid. p. 1968Blagojević, M.: ”Misogyny: Invisible causes, painful consequences”, in: Blagojević. M. (ed.)Mapping the Misogyny in Serbia: Discourses and Practice (Belgrade: AŽIN) 2000:67469The enjoyment of great social, benefits, those concerning employment, health care etc. wasalso the characteristic feature of most of the countries in ECE Europe. Regulska, J.: GenderIntegration of Europe: ”New Boundaries of Exclusion”, in Jähnert, G. et al. (ed.): Gender in

54Agneš Kartag-Odriof the former Yugoslavia, negative trends toward women’s rights rocketed todramatic dimensions. Women not only lost their gains from the communist times,but were also additionally exposed to tremendous ideological and armed pressurefrom conservative, nationalistic and religious forces. There was also a strongrenewal of the influence of the church on political life, the weakening of the rule oflaw, explosion of massive unemployment, collapse of the welfare state, and growingviolence against all weaker members of the society – women, children, seniorcitizens and minorities of all kinds. The main feature of the society was retraditionalisation,burdened by deeply rooted patriarchal values. 70 Discrimination,marginalization, violence etc. might be seen as some kind of ”revenge” for the(forced) ideological equality that existed within the framework of communism.The new wave of anti-feminism was partly the result of failing to ensuretrue equality of men and women, both in public and in private spheres, throughthe institutionalization of equality. The diiculties of feminism spreading widelyoriginate also from the fact that women mostly focus their energy on individualand not on collective strategies of resistance – and these two strategies are oftenmutually exclusive.The very idea of spreading/teaching/applying feminist theories, as wehave seen in the previous parts, is the possibility to connect feminist theoriesand knowledge with practice and activism, to open new spirals of theoreticalcontemplations of feminist thought and understand its social context. Atthe turn of the 21 st century, it became obvious that the establishment ofinstitutionalized equality, regulated by various legal provisions demonstratedseveral weaknesses. Some examples of these weaknesses are:- the process of establishing gender equality is a slow one;- there are forms of ”subtle discriminations” (alongside with anti-discriminatoryregulations);- the acceptance of women into certain fields or institutions regularlycorresponds within the diminishing of the significance of such institutions;- institutions themselves are in the process of intense transformation,therefore institutional equality itself is something that by no means resolvesTransition in Eastern and Central Europe Proceedings, (Berlin) 2001:87; also Griffin, G. (ed.):Women’s Employment, Women’s Studies and Equal Opportunities, 1945-2001; Reports fromNine European Countries, (University of Hull, The Netherlands) 2002: 293-32270...”Re-traditionalisation... prompts nostalgic feelings towards the traditional patriarchalorder, feelings, which have been growing stronger in the chaos of ’transition’.” Blagojević, M.:op. cit. p. 674

New Perspectives in American Legal Theory 55the problem of (gender) equality in its entirety, but in fact represents itsdecreasing segment. In transitional countries, such as Serbia, where theinstitutions have become more or less disintegrated and often emptyfacades, this problem is more obvious.Feminist scholars stress that the legal/constitutional order on genderequality and anti-discrimination will remain just a principled proclamation unlessthere are certain accompanying mechanisms (such as committees, boards,councils, national action plans, statutes, ombudsmen etc.) within the systeminstitutions such as Parliament, government, and local administrations forachieving gender equality. They are the only ones able to contribute to eectingthe equal rights of women and men. 71VI In Lieu of ConclusionOur intention was to focus on some possibilities of how to createattachments to feminist issues and legal feminism in order to ensure the visibility71After the change of 5 th October 2000 (i.e. the fall of the Milosevich regime) the followingbodies for gender equality were established: in 2002 in the Assembly of Vojvodina, followedby 2003 in the National Assembly of the Republic of Serbia, bodies of the executivegovernment (in 2002 the Provincial Secretariat for Labour, Employment and Gender Equality,in 2003 the Council for Gender Equality of the Government of the Republic of Serbia, in2004 the Provincial Institute for Gender Equality). Significant legislative changes occurredconcerning Family Law (adopted in 2005), Law on Labour (2005), as well as in the CriminalCode of 2003 (with the introduction of the Criminal Act of Domestic Violence in Article118a. The same criminal act remained in the newly adopted Criminal Code of 2005). Inthe field of monitoring the implementation of the policy of gender equality and equalopportunities for women and men, positive changes were made by the establishment ofbodies for monitoring the achievement of women’s human rights, i.e. by the appointmentof the Deputy Ombudsman for Gender Equality (Decision on the Provincial Ombudsmanof 2002) and the adoption of the Law on the People’s Advocate (2005) by which, though notexplicitly stated, there is a possibility for one of the deputies to deal with gender equality.Recognizing the necessity for the existence of a legal framework that will enable theconsistent implementation of gender equality in all segments of public and private life, in2004 the Assembly of the Autonomous Province of Vojvodina adopted the Declaration andDecision on Gender Equality. These documents represent the first legal acts adopted on theterritory of the State Union of Serbia and Montenegro explicitly regulating the issue of genderequality in fields within the competence of the province.

56Agneš Kartag-Odriof relevant feminist topics, which may result in new institutions, mechanismsand law reforms for the betterment of a woman’s position. It can be concludedthat there is no doubt about the prospect that the ideas set by legal feminists (bymeans of suggesting, oering reforms, criticizing the existing legal solutions etc.)can and will have an impact not only on academic legal thinking, but also oninstitutional and legal reforms.It can also be concluded that one of the key feminist epistemologicalstrategies is conceptualization: neither knowledge nor abstract theory existsoutside a spatial and chronological context. Co-opting Western theories, basedon the experience of capitalist society, brought up both the possibility of improvedunderstanding and that of deception. First, there might be a danger ofidentifying ourselves too easily and casually accepting explanations, conceptionsand definitions. Secondly, there is also the danger of confusing a plausibleappearance with interpreting the dierent social phenomena, using inadequateexplanations. This is exactly why contextualization is essential for understandingdierences and various mechanisms that, even in modern ”global civilisation”,determine the precise and locally specific relation between men and women.Conversely, the import of these ”foreign goods”, and ”travelling theories”,might have multiple eects: they foster the development of new identities, bringnew values and lead to an adaptation of dierent norms and behaviours. Whateects these trans-boundary interactions and confrontation will produce in thelong run remains to be seen. We can only hope that ”travelling theories” willkeep aecting women’s organizing and result in an increased level of women’sactivism focusing on the gender equality policy issue. Will state institutions(including legislators) and academic curriculums concerning women/genderstudies become more gender- sensitive and involved? Alternatively, will theirsensitivity be short-lived and will patriarchy and re-traditionalization againreconstruct the hierarchical relation between men and women?As a final point, the following dilemma remains open: is there a ”two waystreet” or a ”bridging discourse” between the ideas of American feminist legalthinking and the achievement in non-western, transitory societies focusing ongender dimension? By presenting the liberal, radical, cultural and dierence legalfeminisms, we could also question the extent to which development in thetransitory states succeeds to put a reverse impact on the content and evolutionon western feminist legal theories.

IIWhat is Law?1 Prof. D.Sc. Duško VrbanFaculty of Law, Osijek, CroatiaEconomic Analysis of Law2 Prof. Milorad Žižić, PhDDean of Faculty of Law, Priština, SerbiaBiorational and Social Determination of the Processof Material Origin of Law3 Prof. Miroslav A. Živković, PhDPolice Academy, Belgrad, SerbiaContribution of American Legal Theory in Definingthe Concept of Law4 Biljana Knežević, LL.MNovi Sad, SerbiaRonald Dworkin’s Natural Law5 Sanja Đurđić, LL.M, AssistantFaculty of Accommodation Business, Novi Sad, SerbiaLiberal Theory of Justice of John Rawls6 Prof. Branko TucakovNovi SadJerome Frank’s Legal Realism7 Prof. Miloš Marjanović, PhDFaculty of Law, Novi Sad, SerbiaRoscoe Pound’s Sociological Jurisprudence fromthe European Continental Perspective

1 Prof. D.Sc. Duško VrbanFaculty of Law, Osijek, CroatiaECONOMIC ANALYSIS OF LAWAbstract: Economic analysis of law developed within post-war ChicagoSchool of Economists poses the fundamental challenge no only to the traditionalAmerican jurisprudence, but to the customary European concept of legal systemand its autonomy as well. Although it can be seen as a continuation of theutilitarian search for a better and more efficient society, from Bentham onwards,its roots could be discovered in philosophical pragmatism and in the concept of”indeterminacy” common to legal realists from the mid-20 th century. Its aims aretwofold: firstly to propose a new kind of legal technique based on the concept ofefficiency and maximization of wealth, and secondly, to offer a new and freshexplanatory theory of optimal legal, especially judicial behavior. It is argued that,essentially, this approach fails to take into consideration the non-economicfactors such as altruism, common good and, particularly, the principle ofsupremacy of individual rights and of the rule of law. In the European context,its straight application would be discordant with the predominance of statutelaw and the position of judiciary which is subordinated to the recognized sourcesof law outside of it.Key words: economic analysis of law, indeterminacy, individual rights,Chicago School of LawBefore we address the main theme of this paper – the economic analysisof law in American jurisprudence, it would be useful to point out some of thecharacteristics of the legal thought on both sides of the Atlantic, and thedifficulties and perspective, arising in this context of the meeting of two legalcultures.It should be mentioned that in spite of the still widespread opinion aboutthe incongruence of the two legal systems, Anglo-American Common law andEuropean continental legal tradition (which is based on the Roman law and onthe supremacy of legislature as the source), today there is a growing realization

60Duško Vrbanthat the differences between these two systems are rather relative. In fact, thelawyers on the Continent are becoming more and more aware of the need forthe judges to create law and of the advantages that this brings. This change isobvious in the problem area of constitutional administration of justice, in theprotection of human rights and in some especially dynamic areas such ascommercial law and international administration of justice. In connection withthis, the former (rather naïve) belief in the omnipotence and ”rationality” of thelawgiver, who could issue general acts that would change the world and makethe legal system just and transparent, as it was believed by the composers of theFrench Napoleon’s Code (Civil Code, 1804) is gradually fading away. Today itis realized that even the best legislative technique has its faults and that it alwayslags behind the real life, which can never be completely envisaged and bound bythe chains of paragraphs of civil and other codes. Already the respectableSavigny in the early 19 th century in Germany warned against the dangers thataccompany the craze for complex codification, which is not preceded by properpreparations, thorough study of particular institutes and an insight into thecase-law, i.e. into national culture.We could ironically observe that in the same way as once the Europeanliterature and science, with great curiosity but also with a sense of domination,were discovering new and unknown worlds, including America (Rousseau’snoble savage), the contemporary American lawyer, could point at some dogmasof European jurisprudence as outdated and unsuitable for the dynamic era ofglobalization. One of the lessons that could be acquired from the American theoryand practice is that about the usefulness of judges’ discretion in the creationand implementation of law, as well as the testing of the efficiency of legalregulation. Efficiency or, respectively, usefulness of legal decisions are questionablenot only in the criminal law but mostly in determining compensations fordamages and in considering just solutions in commercial transactions. Preciselythis seems to be the area in which the economic analysis of law provides itsmost interesting contribution.Closer contacts of law with the economic way of thinking started alreadyin the 18 th century, when Jeremy Bentham and later John S. Mill, represent thethesis about the greatest happiness of the largest number of people as the aimof law and politics. The issue here was primarily a kind of moral (practical)philosophy that especially addressed the purpose of punishing. The economicanalysis of law, which wants to replace the traditional legal dogmatism with anew way of thinking, represents a slightly different point of view. Nevertheless,

Economic Analysis of Law 61according to some observations this direction, too, represents only a sequenceof the classic English utilitarianism. Utilitarianism is not a formal analysis oflaw – which is, e.g., found in Austin – but a prescriptive model used as theinstruction for solving social problems and stimulating progress. Contemporaryeconomism in the law also follows similar motives; starting from the enlargementof social wealth, it suggests ways for the maximization of profit or compensationfor damage that would take care about costs, reducing them to the smallestpossible measure. Here, ethical dimension of law is not visible, or it is implicitlyincluded in the premises of liberalism (the greater the freedom of trade andentrepreneurship, the greater the social wealth).In America, law and economy meet more intensively especially in the1960’s and 1970’s, when in the framework of the Department of Economics atthe University in Chicago, the so-called ”Chicago School” was founded. Inaddition to developing the economic model of efficiency, the works of GaryBecker, Ronald Coase, Guido Calabresi, Henry Manne and Richard Posner alsodeal with law, indicating the ignored rationality of the tradition of judge-madelaw (Common Law), whereby they also wanted to emphasize the aversion (presentalready in the works of Holmes and legal realists) to legalism (Statute Law) andnormative formalism (European jurisprudence). Among authors who write inthis spirit, especially distinguished is the figure of Richard Posner, a judge and ateacher, who is most meritorious for the promotion of the ideas about theeconomic analysis of law.It should be noted that there are, in fact, two Chicago Schools: one, whichdeveloped already before the World War II, and the other, which developedafter World War II and which pays more attention to methodological questions.Members of the first school (Douglas, Knight, Schultz, Viner), have tried torevitalize the economic thought by bringing back trust into the power of marketpowers, as opposed to state interventionism that had been introduced throughthe New Deal reforms. In this sense, these theories were consistent with theassumptions of Adam Smith from 1776 (the invisible hand), as well as with theideas of English liberal economists from the Viennese School, Hayek and vonMises, who opposed the Keynesian logic of inciting demands. In that perspective,especially distinguished is the contribution of Milton Friedman, who after thewar became the coryphaeus of neo-liberalism and the most translated Americaneconomic writer.The other school, the postwar school of Chicago economists, has paidmuch attention to methodological issues of maximizing the usefulness and

62Duško Vrbanreducing costs as the efficiency of operations in the field of production, exchangeof goods and services, and especially in the compensation of losses (Kaldor-Hicksefficiency). The starting point of these models is the so called ”Paret’s optimum”,according to which there is a balance in the distribution of goods if any sortof change would put one of the protagonists into inferior position. Chicagotheoreticians have also taken into consideration the legally induced changes inthe economic position of the parties, for example in determining compensationsfor damages, and they have tried to set up a rational rule for such cases (Coase’stheorem). In this connection, there was the issue of justification of a priori legalregulations for such cases. As it is known, legal constructions about establishingresponsibility most often range from the principle of blame (in most cases it isnegligence), presumed culpability (the burden of proof is on the accused), toobjective liability, when the guilt does not need to be proven (strict liability).Thus the conclusion was reached that, in principle, market mechanisms ofcompensation are more efficient than the legal regulations, that passing judgmentsin the tradition of Common Law is more efficient than legal regulations ofresponsibility, and that, according to this, courts should bear in mind that therisk should be, at least partially, put to the party that can reduce or avoid damage,paying more attention to costs.An important novelty in this reasoning is that it takes account of operatingcosts (transaction costs). These are the costs that result from the aspiration tobuy or sell something; in addition to seeking information, the parties need toreach an agreement (ex ante costs) and then they must make efforts to fulfillcontractual obligations (ex post costs). It should be mentioned that this idea doesnot come from the Chicago School, but is the result of an older contribution ofneo-institutionalists (Commons, Coase, Barnard), who have indicated the limitedrationality of economic agencies, which are often exposed to unexpected costs,already because of the conflict of interest among them.In addition to compensation for damages, some economists were alsopreoccupied with the economic aspect of non-market behaviors. So Gary Beckertried to calculate the social cost of crime and point at economic motives inmarriages and divorces, bringing up children, dividing household chores, andhe even analyzed alcoholism and drug addiction. This expansion of the economicapproach on spheres outside of traditional economy, was described by someauthors as ”economic imperialism”, which indirectly testifies about the spirit ofAmerican society, reflected already in the philosophy of pragmatism. However,some other authors have taken the opposite direction, considering economy

Economic Analysis of Law 63through institutions such as ownership and right (Alchian, Demsetz). This hasinitiated the affirmation of neo-institutionalism in economy, which confrontsthe formalism and individualism of the neoclassicists.In the 1970’s, the Chicago School of Law and Economy won a respectableposition, not only among economists but also in the circles of lawyers, boththose with academic and practical orientation. Many have put great hopes intothis new approach, in the conviction that it opens new perspectives, both in thetheory of law and in the legal practical reasoning, which finally had to be put onsound and rational foundations. Some specialized periodicals have beenfounded in this domain, such as the Journal of Law and Economics and Journalof Research in Law and Economics, and the protagonists of this orientation havegradually been given more noticed positions in other renowned publications aswell. The rapidly grown popularity of the economic approach to law, even if ithas contributed to the abandoning of the older normativism of Langdell’s type,still has not completely expelled other courses, such as the already mentionedneo-institutional school and that which is closer to the domain of sociologicalapproach – critical legal studies.In an attempt to summarize this exposition, we could ask ourselves whichare the key starting points and ideas of the Chicago School of Law and Economy,that have contributed to its exceptional popularity across the Atlantic? This topicwould require a more detailed analysis, which should take into considerationthe specific features of American law, as well as the differences between theEuropean and the American way of thinking. As a result of a summary view ofthe important characteristics of this approach, it can be primarily concludedthat this school, as well as some other courses, that deal with law and economy,is based on a certain dualism; on the one hand, it aspires to explain the senseand operations of legal institutions, and on the other hand, it establishes itself asa prescriptive method that develops into a specific legal technique. We can thusspeak about two dimensions of the economic analyses of law: about the positivedimension, i.e. that which describes and envisages, and about the normativedimension, which prescribes.The emphasis of this theory is certainly on the concept of efficiency,which is understood as maximizing the wealth as measured in money. With thisas well as with other instruments, such as the marginal usefulness, the Chicagoauthors continue the neo-classical analysis, including in it the analysis ofoperating and contracting costs. This way of thinking, which holds that the aimof law is implicitly consisted in its contribution to the enlargement of wealth, is

64Duško Vrbanoutlined highly individualistically and abstractly, as is the case with other modelsof homo oeconomicus. In this way, the law is considered instrumentally, as oneof the institutional systems of the society, which is in the same competitivearena as the market, contracting and choosing political preferences, i.e. it isconsidered as one of the mechanisms that should serve for the settlement ofdisputes with real or hypothetical market value.In spite of the illusion of rationality, such approach also leads to hardlyacceptable conclusions, which can be shown on two examples quoted by Posneras the illustration of the efficient view of the law. Thus, in the absence of legalobligation to rescue a drowning swimmer he sees the rational approach, becauseif it were different, good swimmers would avoid rescuing others if it didn’t bringthem any material gain. Since they – in spite of all this – still continue savingpeople from drowning, they receive rewards in the form of money as well aspublic acknowledgment for their altruism. The second example is even moredrastic. Posner was, namely, working hard trying to organize the adoption ofchildren like an auction, following the principle of supply and demand, wherebyvarious positive effects would be achieved – although he himself admits that thisis hardly conceivable. In this way, the adopters could more easily get a desiredchild, and the biological parents would receive a compensation, which wouldbring them a certain gain, and the children themselves would come into thehands of the best bidders, i.e. into the hands of the adoptive parents, who wouldtake optimal care about them.Many criticisms against the economic analysis of law comment on thisand on other insufficiencies of this approach. Maybe the most adequate critiquehas been consisted in the observation that rational actors, as conceived by legaleconomists, have little in common with real people. It is only a newer variant ofhomo oeconomicus as an abstract product of economic imagination. It shouldalso be added that it is neither realistic nor morally acceptable to evaluatedamages, and especially the human life, only in money, as this is being done bythe economic analysis.The principal criticisms of the economic analyses of law, especially in thevariant of the Chicago School, could be summarized in the following four items:1/ Except for efficiency measured in money, legal order also aspires to othervalues, among which a distinguished place belongs to fairness; 2/ In the traditionof the European and Western legal scientific paradigm lies the imperative ofobserving the law along with the limitation of powers, which is expressed bythe syntagm ”law-based (legal) state” or ”rule of law”. In that perspective, the

Economic Analysis of Law 65administration of justice and legal decision-making in general are limitedby normative boundaries, which guarantees legal security and execution ofdemocratically chosen goals of legislature. Introduction of other criteria, suchas for example efficiency, these normative premises can be put in question. 3/ Justas a refined economic analysis shows, economic factors are not independentfrom the social and especially not from the legal context. Namely, the costs andprices are directly dependent on the limitations of ownership and on otherinstitutional limitations. 4/ For most people, abstract augmentation of wealthor, respectively, quantitative relations of distribution, have a lesser importancethan the access to the goods itself. In other words, for the majority of socialprotagonists the question how to distribute social goods, both public and private,is much more important than the aspiration towards the mere enlargement ofbenefits as measured with money.It would therefore be more adequate to speak about the interdependenceor the interaction of the socially-cultural context and economic calculations,just as this is don by the institutional and neo-institutional school. Nevertheless,some merits of the Chicago School can not be denied; it has contributed to abetter insight into the rationality of both legislature and court decision-makingin those fields of law that are the closest to economy. These are disputes aboutdamages (tort law), protection of property rights, and the Law of Obligationsand Commercial Law.LITERATURE1. J. D. Hanson / Melissa R. Hart: Law and Economics, in: Dennis Patterson(ed.): A companion to Philosophy of Law and Legal Theory, Malden (MA)etc., 2003, 311-3312. J. W. Harris: Utilitarianism and the Economic Analysis of Law, in: J.Banfield (ed.): Readings in Law and Society, North York (Ont.), 1991, 241-246 (source: J. W. Harris: Legal Philosophies, London, 1980, 36-47)3. J. M. Kelly: A Short History of Western Legal Theory, Oxford, 20034. Kregar, J. / Šimonović I.: Teorijski temelji ekonomske analize prava (TheoreticalFoundations of the Economic Analysis of Law), Zbornik Pravnog fakulteta uZagrebu (Collected Papers of the Faculty of Law in Zagreb), 1996, 6:557-6175. T. Keresteš: Ekonomsko vrednotenje v pravu (Economic Evaluation in Law),Pravnik (Ljubljana), 59 (2004)7-9:279-392

66Duško Vrban6. N. Mercuro / Steven G. Medema: Economics and the Law: From Posner toPost-Modernism, Princeton (N. J.), 19977. R. A. Posner: Economic Analysis of Law, Boston /Toronto/London, 19928. W. E. Scheuerman: Die stille Revolution im amerikanischen Recht (SilentRevolution in American Law, in: H. Brunkhorst /P. Niesen (ed.): Das Rechtder Republik (The Law of the Republic), Suhrkamp, 1999, 209-231.

2 Prof. Milorad Žižić, PhDDean of Faculty of Law, Priština 1BIORATIONAL AND SOCIAL DETERMINATIONOF THE PROCESS OF MATERIAL ORIGIN OF LAWAbstract: The author is trying, in a certain degree, to recognize theproblem of material authenticity of law through an integral projection, byfacing its biorational and social guidelines. He points out the possibility of tripleform of material authenticity and essence of law.He also stresses that a problem of the essence of law, in a certain degree,can be approached in a threefold way, i.e. he emphasizes a triplelayer essence oflaw, pointing to its normative, social and value aspect.Key words: sources of law, definition of law, normative, social and valueaspects of law, the essence of lawThe process of material origin of law 2 , which takes or may take threeaspects or directions, in our view, originates or may originate from a particular1Prof. Dr Milorad Žižić is a full-time professor at Law Faculty of Priština Universitycurrently situated in Kosovska Mitrovica. Prof. Dr Milorad Žižić is the dean of this faculty.2Our perception of material origin of law in the first aspect i.e. law as social production(reality), desirous production is partly opposite to dogmatic and normative theory of law’cleansed’ from social and other factors. Partly it is similar to sociology and legal approaches(of Digi, Spasojevic, and others). Opposition to dogmatic and normative approaches exists,in our opinion, due to extreme exclusion of such approaches when it comes to sociological,psychological and other factors, which we think well determine origin and essence of law.Similarity to such approaches lies in the fact that we, after all, point to the normative aspectof law, but unlike them, as an aspect of threefold essence of law, which is incompletewithout social and valuable dimension. Similarity of our approach to sociology approachesto law, as well as legal sociology, legal economy, is partly present.The fact that the basis oforigin of this aspect of law originates the process of its creation is determined out of socialreality (production). The difference from previous approaches lies the fact that, as withnormative segment, we don’t stay only on this sociological segment, but we give it, within

68Milorad Žižićbasis, which was established primarily by biorational and social mixture of differentmatters stemmed from the state of need of the given time and space, conditionedby either specific or general development of the society and justified by determinedideas (the reflection of objective development of the society).The first aspect of the process of material origin of law is evolutionaryadaptable to social reality and its need for legal regulation of social relations. Itcreates a norm, which is being (more or less) realized through the technicalutterance and form which we call a norm, i.e. positive law. Desirous notions onlegal regulation which are expressed through legal and technical form of thepositiv norm, are desirous aspirations of the creator of the positive norm,positive law, i.e the reality which expects such regulation.This positive law percieved through this aspect of the process of materialorigin of law is seen and expressed with a simple form: LAW AS SOCIALPRODUCTION (REALITY), DESIROUS PRODUCTION.Social production (reality), viewed in its overall, widest sense, in interactionof social relations and structure determines the need for adequte legal regulationof numerous and various social realtions. Instinct of self-preservation, uniting,identity, existence, orientation, power, existential security, economic profit, and soon, is expressed through the economic base and superstructure, where satisfactionof wishes and interests is being fulfilled.Satisfaction of wishes and interests requires the need for adequate protectionof regulation, especially legal regulation. Clashes of interests and polarization insocial production (reality) results in various conflicts, which determine the needfor existence of organized force and adequate machinery for implementation ofthat force aimed at resolving conflicts and protection of interests. Dependingon the power forces and sequence of social assumptions and events which effectthe building and organizing of the machinery for implementation of organizeddetermined interaction, normative and valuable aspect of essence of law, and we discuss itin this work. However, what is, after all, different from other approaches to law in ourapproach is the given model, coceptual construction, which, out of biorational and socialconflict and interaction, synthesizes and absorbs or leaves open possibilies of absorbing ofnumerous causes or factors with different role and significance, and which are seen as’sources’ of law by many authors. Such is the case with our approach to material origin oflaw, as well as the second and the third aspect of origin of law. Here we emphasize that underthe term ’origin of law’ we exclusively mean material origin of law. Formal origin of law(general legal act) is not the subject of this work.

Biorational and Social Determination of the Process... 69force (which should be the most intense in such social reality) will depend onthe building of legal regulation of social relations.Thus determined social reality causes desirous production of legalregulation, which, within the intelllectual and creative process of origin of law,is altogether created and designed, and technically realized in the positive norm.When we go from our basis of material origin of law filled with biorationaland social contents through this aspect and finally come to the positive norm(of the positive law), in our opinion, the first phase of the the origin of law,well-known as the material origin of law of the first aspect, is finished. From themoment the legal act which contains the legal norm comes into effect (if it isgenaral legal act, i.e. general legal norm), the new phase begins – the phase offormal and legal origin of the civil law system. We will not discuss this sort oforigin as the superstructure upon the above mentioned material law.One of the important features of the first aspect of the process of materialorigin of law, in our view, is the existence of certain social security with expressedneeds for legal regulation, on one hand. Creativity originated from facingbiorational and social determination is adaptable to such reality, i.e. its expressedneeds for legal regulation, on the other hand.Since this aspect of origin of law originates positive law the way wedefined it, analytical and synthetic focus is being aimed at the above mentionedsocial reality (production), at its significant and special features, i.e. at thecollective and various relations within it, which are the most importantdeterminators of the given reality. Therefore, our starting point and idea,generated as the product of facing the biorational and social determinators, isbeing dirtected through the first aspect of the origin of law i.e. through perception,creation in accordance with the given reality, on one hand, and throughcontribution of the important modification of the social reality, on the otherhand. A special sociology dimension of law is reflected upon it.We are going to discuss some segments of such reality relevent to thisaspect of law later.The second aspect of the process of origin of law, in our view, followsanother desirous evolutionary directions (unlike the first aspect), directions ofrebellion (the state of not being adaptable to the given reality (production) andcreation of regulatory notions aimed at overcoming such reality (production),based on intuitive, ideological, moral and valuable opinions, desires and alike. Ifsocial conditions and social support for such things would be created, then thisaspect of the process of origin of law would also result in the norm, which

70Milorad Žižićwould be turned into a positive norm through technical utterance and form andthat would generate more creative, more developmental (evolutionary) positivelaw, on one hand or, on the other hand, so-called revolutionary positive law.This way either more evolutionary positive law or revolutionary positivelaw, viewed through this aspect of the process of origin of law, we see andconceptually determine by the utterance: LAW AS DESIROUS PRODUCTIONAIMED AT OVERCOMING THE EXISTING FORM OF SOCIAL PRODUCTION(REALITY) AND ESTABLISHING THE NEW ONE.Social determination of this notion of law is partialy similar to laworiginating from the first aspect of the process of origin. Yet, here we havedifferent protection of desires and interests of the opposition forces which wantto oust the creator of law and change the government in order to impose theirown interests and use of force, which would provide them with protection.Thus, two situations are possible.Talking of the first situation, we see such law as a desirous production ofthe notions of legal regulation, which are evolutionary but rebellious against theexisting social reality and situation, and which are, provided they find socialsupport, expressed through legal and technical utterance of the positive norm.Then we see that law as more flexible, more evolutionary law which may besuitable to the creator of the law, as well as to opposition forces.Talking of the other situation (where opposition forces want to imposetheir interests and rule the process of creation and implementation of law) wesee that law also as a desirous production of the notions of legal regulation,which evolutionary but rebellious against the existing social reality and whichare, provided they find social support, expressed through legal and technicalutterance of the positive norm in specific social conditions, which would suitour notion of revolutionary positive law. Thus, there would be radical changesin social reality and law i.e. legal system.In both situations this perception of law comes from the second aspect ofthe process of material origin of law. We see this law as a desirous productionof legal regulation aimed at overcoming the given social reality (production)and establishing a new one.The analytical and synthetic focus of reality (production) gives real socialdimension of law. The analytical and synthetic focus of reality in its concretematter, the social, stimulative impuls and spark in biorational sphere, micro--universe of the man and his collective, may create, among other things, a desirousproduction of legal regulation aimed at overcoming the given social reality and

Biorational and Social Determination of the Process... 71establishing a new one. Thus even here a biorational link in law is determinedby a social link which will, through psychic sphere, result in desirous aspirationsand possible embodiment into what we call a positive norm.The development of social relations, antagonism of pluralist interests,and situations of social crisis and alike, determine, among other things, socialdimension which determines the original process of law in this and the firstaspect of origin. As we said, we will discuss some other social factors whichdetermine the first and the second aspect of the process of material origin of lawlater.The third possible aspect of the process of material origin of law, as theprevious two aspects, comes from the basis stemmed from clashes of differentbiorational and social components but follows a different desirous directionindependent of social reality, time and space. Therby desirous notions of legalregulation as universal, eternal, identical to natural laws are created, andautonomous survival, intuition, inspiration, discovery, metaphysical speculationof different range or simple reasoning determine the content, value and measures,given naturally or by God’s will or human mind. This aspect of the process oforigin of law results in what we mostly calle natural law, objective law, God’slaw, universal law, intellectual law, real law and alike.We see and express such law by the utterance: LAW AS DESIROUSPRODUCTION INDEPENDENT OF SOCIAL REALITY, TIME AND SPACE.So this means that this aspect of the process of material origin of law results indesirous notions of legal regulation, based on subjective utterances and measures.That subjective utterances and measures as a reflection of desirous productionof notions of legal regulations, as we mentioned with the first and the secondaspect of origin of law, might be objectified and embodied in the form of positivelegal norm.However, with this aspect of origin of natural law these utterances andmeasures are intellectual utterances and measures, perhaps a norm, (but not inthe aspect of positive norm unless positive law is incorporated) or simply arequest and alike. So that intellectual utterance of natural law, measure, norm,request and alike could appear as impulsive pressure on creative process ofpositive law, and as correction of positive law in certain segments and to acertain extent.What explains the need for such determination of law as natural, universaland alike? One reason lies in endless creativity of human mind and spirit, whichare one of the driving forces of human existence. Another one, lies in the urge

72Milorad Žižićfor self-preservation, social interaction, identity, existence, orientation, power andother forms of satisfaction. The third one lies in human uncertainty, insecurity andcruel reality. The fourth lies in human imagination, faith and hope. The fifth liesin the possibility of the existence of another force or natural determination.Those needs create certain significance of so-called natural law, aimedat creating desirous notions of legal regulation which would provide thiersatisfaction. This is especially related to the aspect of human rights and liberties,which are, in a way, in the foreground as the most vital framework of existentialsecurity and every democratic legal regime.Dualism of so-called natural and positive law, where the formal one isenternal, perfect or more perfect and the latter is imperfect, cruel, subject to thesupeordinate, and whose implementation is reduced to organized measurableforce, varies from similarity on one hand, and complete distance and utmostpolarization on the other hand.Dualism of those two laws is evident when it comes to human rights andliberties. Positive law, through its nature and development, often shows certaincruelty or relative protection when it comes to human rights and liberties.Moreover, it may show such a degree of cruelty and violation of natural harmonyof human rights and liberties that they may simply be suspended or guaranteedonly to a certain extent, but the realization of such rights and liberties may bepractically unfeasable. So, the existential struggle gives a natural response to lawprotected by force (positive law): a genuine urge to fight against it in order toovercome it, adapt to the wider and more natural notion of human rights andliberties and alike, as well as its suspension. Therefore, we think that natural orobjective law with all its characteristics is, after all, an important corrective factorof the positive law, especially in situations of social crises. Experiences of theFrench bourgeois revolution confirm it, as well as revolution turning poiunt indevelopment of such human rights and liberties. Between supporting duaismof intellectual and positive law (legal rationalism) on one hand, and a bid toreconcile rational elements (of the intellect) and historical ones (of positive law),which make objective and legal idealism, on the other hand, we tend to reconcilenatural and positive law so that natural law would be a strong impuls andcorrective pressure above positive law, make positive law more natural, just,human, with distinctive moral and other values, especially when it comes tohuman rights and liberties and their protection.No matter what aspect of origin of law we talk about, in our view, such lawis created essentially as a consequence of certain causative sequence of events.

Biorational and Social Determination of the Process... 73Each aspect of law contains essential features expressed through reason, cause,motivation, desire, purpose, action, sanction, interst and alike, among otherthings. Law of any of the three aspects of origin is a phenomenon and meanswhich essentially directs human existence towards an aim mostly in co-existencewith other processes peculiar for other aspects of human existence. Each ofthem has its own way.We project the problem of comprehension of the essence of law, to acertain extent, from the basis created by biorational and social determinationof law. Out of such projection we underline the threefold essence of law i.e:normative (aspect of order in a norm), social (aspect of action) and valuable(protection of certain values).This gives an antropological and legal view of integral projection ofbiorational and social determination of the process of material origin of law andessence of law, as a our own contribution to the theory of law.

3 Prof. Miroslav A. Živković, PhDPolice Academy, Belgrade, SerbiaCONTRIBUTION OF AMERICAN LEGAL THEORYIN DEFINING THE CONCEPT OF LAWAbstract: In the article the author underlined that American legal theoryinsists on the standpoint that general legal acts are being applied most often onlythrough individual acts and court decision. Therefore, the most relevant thingfor the citizens is the content of individual acts, that are often being passed onthe basis of discretion authority. Therefore, bodies passing individual acts,especially the court, are to a great extent independent when determining whatlaw is in that particular case. Independence of applying bodies and especiallythat of the court results from the fact that particular legal decisions depend notonly on the content of law, in other words regulations, but also from logical,philosophical, political and moral suppositions, that is, understanding thosewho make those decisions.Key words: court decision applying bodies, American legal realism,discretion authority1. During the nineteenth century, and especially in its second half, legalpositivism dominated in Europe which by generalizing the European legalpractice defined law as a system of current laws and other regulations. Reductionismand formalism of such approach was criticised both in Europe and in the UnitedStates. Late in the 19 th century, at about the same time two schools of free lawappeared first in Germany, and then in other places through Europe and arealist school in the United States of America. These schools widen the conceptof law considering it to be unjustly reduced on law or in other words generallegal acts while the importance of individual legal acts and especially courtdecisions are being ignored. American law schools insist on the standpoint thatgeneral legal acts are being applied most often only through individual acts and

Contribution of American Legal Theory in Defining the Concept of Law 75court decision. Therefore, the most relevant thing for the citizens is the contentof individual acts, that are often being passed on the basis of discretion authority.Even when this is not the case, quite a number of legal regulations are insufficientlydetermined, unclear, mutually contradictory or there is a case of legal emptiness.Therefore, bodies passing individual acts, especially the court, are to a great extentindependent when determining what law is in that particular case. Independenceof applying bodies and especially that of the court results from the fact thatparticular legal decisions depend not only on the content of law, in other wordsregulations, but also from logical, philosophical, political and moral suppositions,that is, understanding those who make those decisions.2. American Legal Realism – This school first appeared towards the end ofthe 19 th century as a reaction to the school of legal positivism, which overstressesthe importance of legal acts. 1 According to the school of law positivism, the lawis reduced to general legal acts (general norms), and its application to deducingconclusions out of general legal norms by means of formal logic. This schooloverestimates the importance of creating law by the legislator and underestimatesthe independence of courts of law and other organs that apply the law. Inviewpoint of the legal positivism, the organs of law application are construed inthe same way as according to the school of conceptual jurisprudence.Legal realism has come into being as a reaction to overstressing theimportance of state regulations and neglecting the creative character of judges’rulings as well as of the freedom of courts in interpreting legal regulations.Bearing in mind the freedom and creativity of the courts in interpreting lawsand other legal regulations, Benjamin Hoadly said at the beginning of the 18 thcentury: The one who has the absolute power of interpreting any written orspoken law is, indeed, practically the legislator, and not the person who firstwrote or pronounced it”. 2 The legal realism particularly criticizes thepositivistic dogma on wholeness and consistency of the legal system. Regardingthe fact that the legal system is full of incompleteness (blanks), inconsistencyand vagueness (ambiguities), the court of law enjoys a great independency inpronouncing court sentences.Judge and professor Oliver Wendell Holmes was among the first toexpress doubt about the correctness of, at that time, dominant analytical and1See point ”American Realism” in: D. LLoyd’s Introduction to Jurisprudence, pp. 655-670.2B. Hoadly, Bishop of Bangor, Sermon preached before King, 1717, p. 12, according to K.Čavoški, Uvod u pravo I, Beograd, 1994., (Introduction to Law I), p. 29.

76Miroslav A. Živkovićhistorical schools layouts. He thought that more realism and pragmatism oughtto be entered into the explanation of law, legal process and nature of legalthinking contrary to the prevailing inclination to absolutize and mix logic withmetaphysics. According to some thinking, Holms was not only a champion ofpragmatism in law theory, but was among the most prominent people whocontributed to the development of ”American pragmatist spirit”. 3By his explanation of social purpose and role of law, Holms is a predecessorto the functionalist theory. He thinks that law is a means of achieving a socialgoal the governing force of community has decided on. In a society, every group,as well as every individual, has different interests. Therefore, governing interestsare established through struggle for existence and a better social position. Holmsinclines to class view to law, he says that the thesis on the solidarity of differentinterests in a society is a false one, and argues laws are means of transferringunpleasant burdens from one class to another. 4Regarding the definition of the concept of law, Holms advocates aconceptual division of law and morale. According to him, law is not even amoral minimum, let alone it being entirely based on morale. 5 The true natureof law can best be disclosed if it is perceived from the viewpoint of a bad,immoral person. Such person cares only about predictable, negativeconsequences, and to predict is not possible if it is based solely on theknowledge of law, but only by combining this knowledge with the knowledge ofcourt practice. A bad man, says Holmes, does not care about the deductionsdrawn out of axioms or laws, but tries to learn or predict how a court of law inMassachusetts or New England will proceed in a concrete situation. Holmessays that he shares the ”bad” man’s opinion about the utmost importance ofthis question. ”The prophecies of what the courts will do in a fact, and nothingmore pretentious are, what I mean by the law”. 6The importance of a court decision comes from ambiguity and inconsistencyof law, and the existence of legal gaps and specific features of the case to which anorm or norms apply. As Judge Holmes, the distinguished representative of therealist school, says, ”general provisions do not solve particular cases”, thereforejudges have ”the sovereign prerogative of choice”. Holmes disproves the3A. Molnar, Društvo i pravo, Novi Sad, 1994., (Society and Law, Vol. I), str. 223.4M. White, Društvena misao u Americi, Zagreb, 1979, p. 175.5A. Molnar, op. cit., p. 228.6O. W. Holmes, Collected legal Papers, New York, 1921, p. 172.

Contribution of American Legal Theory in Defining the Concept of Law 77common viewpoint of different positivist schools that legal logic is the essenceof law application process. In his opinion, ”the life of law is not logic, butexperience” 7 and then he adds that, under a logical form there lies a judgmenton the relative value and importance of juxtaposed legal bases, often aninarticulate and unaware judgment which really is a real root and nerve of thewhole procedure. You can give a legal form to any conclusion. You can alwayspresume a stipulation of a contract. But, why do you presume it? Because of thebelief that a community or a class acts in this way, or because of a political opinion,or, in short, because of your attitude on a matter which is not fit for a quantitativemeasuring and, therefore, not fit for making precise logical conclusions. 8According to Holmes, contrary to abstract and rigid law, a verdict i.e.judge is capable of seeing the specific features of a particular case, and to resolveand put in harmony the legal inconsistencies and the inconsistencies ofindividual and social values and interests. Therefore, it is the verdict thatrepresents the relevant and animate law.In his sociological explanation of law, similarly to Holmes and Cardozo,Jerome Frank starts from the conflict nature of social relations, and conflicts ofeconomic, racial, and religious interests and attitudes. However, the influenceof class affiliation is more effective when passing legal norms is in question thanwhen passing judgments. Court cases pertain primarily to everyday problemsand in this area, class affiliation often is of no importance. The effect of classaffiliation expresses in the cases when the parties belong to different classes andwhen, as a rule, the judge rules to the benefit of his peers, but such cases arerelatively rare. 9 Consequently, law shows its class character in one of its parts.Franck distinguishes two kinds of legislation: legislative (parliamentary)and court. However, neither the legislative nor the court decisions constitutelaw, ”law does not consist of norms, but of decisions”. In the process of courtcreation of law, the norms are a condition, a starting point and guidelines, thenorms have a character of means and instruments a judge uses to make hisdecisions. Frank considers the personal convictions of the judge to be of moreimportance than the contents of legal norms. If a judge’s perception differsfrom the one, they are obliged to take into consideration by a norm, he willproceed according to their own opinion by observing the facts in such a way7O. W. Holmes, The Common Law, Boston 1881, p. 1.8O. W. Holmes, Collected Legal Papers, New York 1921, pp. 181, 182.9A. Molnar, op. cit., pp. 228.

78Miroslav A. Živkovićthat they enable his decision to get a formal logic basis in a legal norm. Themajority of judges are not aware of the true nature of this psychological process.Due to that fact, the court decisions cannot be predicted in advance. Themost important determinant of a court decision is the psychological traits of thejudge. Frank proves this by presenting numerous statistical data, concludingthat the administering of justice in a particular case depends primarily on thejudge who gets to rule and not on the contents of legal norms. Hiding behindlegal norms is an ideological procedure, and in that sense, law is a form ofideology. Moreover, there exist elements of residues of magic and magical beliefin the summon of holly words, and the summon of legal norms comes from thebelief that the words, all in themselves, produce the effect accredited to them. Inreality, law as a technical and ideological mechanism secures the stability oforder on the one hand, and makes possible the arbitrariness of state decisions,which is sometimes needed whereas, in some other cases, it is not needed but istolerable, on the other.Although some representatives of American realism use the judges’behavior concept in their definitions of law, their understanding should not beconstrued as anti-normative because the behavior of a judge is reduced to thedecision, i.e. to the norm he passes. Consequently, the difference between thesociological and positivist school here is primarily terminological because realismalso considers norms i.e. the court decisions pronounced by the courts to be apresumption of law. The basic difference between various schools of positivismand realism lies in the fact that the realistic orientation stresses the importanceof the application of law and single act of law. Law becomes concrete and relevantto the opposing parties only in the process of application. Therefore, in givingits definition of law, realism highlights the act of law application, primarily thecourt decision, instead of the law and other regulations. The shifting of thepoint of law gravity from the general to the single act of law (primarily the courtdecision) is conditioned by the usage of sociological method by the realisticschool. Contrary to the positivism which underlines that a single act of lawshould be passed in accordance with a higher legal act in the spirit of logic of legalsystem hierarchy, the actual matter of fact notwithstanding, the realistic schoolgives the definition of law primarily having in mind the actual relations in theapplication of law i.e. the real relationship between the verdict and the law.3. Economic analysis of law – In the last few decades, two more theoreticalorientations (schools) of thought have singled out in the world. They are

Contribution of American Legal Theory in Defining the Concept of Law 79theoretical and ideological counterparts: economic analysis of law (Law andEconomics), and critical legal studies.R. Coase and R. Posner are the most prominent theorists of economicanalysis of law the origin of which is in the USA, (Chicago for the most part)and the UK, and the grounds in the tradition of classical liberalism. 10According to liberalist point of view, economic approach to social and politicalphilosophy is the most effective way of solving social problems. In view of theschool of economic analysis, law must be designed based on economicprinciples due to the fact that it regulates social relations and contributes tofinding solutions to social problems. Posner thinks that along with traditional,private law, which is already imbued with implicit, economic logic, the entirelegal system should be permeated with the logic of efficacy and perfectcompetitiveness. 11 However, those who criticize the views of this school pointout the fact that, in the matter of many issues, the logic of economics divergeswith respect to the logic of law the essence of which is reciprocity and fairness.As a mechanism of regulation, law is not exclusively in the service ofeconomics, but also politics, morale and society the goals of which are notstrictly economic.According to the school of economic analysis, true economic effectivenessshould be the supreme arbiter in formulating law as well as in its application.To say that here the idea of justice being the essence of law is replaced by theidea of economic effectiveness is not an overstatement here. In addition, sincebusiness circles, that have the economic power at their disposal, are thoseprimarily interested in the latter, the whole theory is, de facto, a rationalizationof their interests. Due to its reduction and banality, the true school of economicanalysis is similar to the theory of power as the basis and essence of law. Only,instead of physical power, the economic effectiveness, which is also a form ofoppression, is posted here.The school pays particular attention to the analysis of the state of welfareand its law. According to the views of this school, shared by President RonaldReagan, any redistribution of profit in a society other than the ones realizedthru the mechanism of open market is unwelcome. Moreover, it is a capitaleconomic evil, and, on one occasion, Posner even calls it a steal. He cynically10See point ”The Economic Analyses of Law”, in: D. LLoyd’s Introduction to Jurisprudence,pp. 374-379.11R. Posner, Economics Analysis of Law, 3rd ed., Boston-Toronto, 1972, pp. 29-40.

80Miroslav A. Živkovićremarks that there still is some excuse for redistribution and tax. Without them,the misery would rise which gives way to criminal and this, in turn, endangerseconomic effectiveness. Misery in itself obviously is not the problem here, it isharmful only to the degree in which it endangers the rich by way of crime. Thisschool advocates rationalization of legal regulations which would reduce thecosts (especially in court proceedings) and create regulations corresponding tothe agreement that would anyhow be achieved by the parties were there nostate-law procedures. In simple terms, there exists a request to create a legalsituation that would exist if there were no law and its protection. Law should becreated according to the principle of lawlessness i.e. of the right of the morepowerful. In this way, the request for economic effectiveness is, in the end,reduced to the policy of power (economic power). In a somewhat more moderatefashion, Cose states that the opposing parties, being interlinked by externaleffect, will always find an effective solution, if they can negotiate free of charge,no matter which one of them is legally liable for the inflicted damage (Coase’sTheoreme). This presumption will seldom be feasible. It is based on the visionof a calculated and cooperative homo economicus. However, in reality there areoften different psychological impediments and irrational motives which makeany agreement impossible. The institution of legal process has been built onthat very experience which is a thousand years old. It is costly, the fact whichparticularly annoys Coase, but as a legal institution, it is necessary.The school of economic analysis obviously is a rationalization ofextremely conservative ideological attitudes. In this sense, it does not have anygrounds in the classic liberalism onto which it only verbally reclines. Liberalismdoes not assume that human rights and liberties may reduce to the right ofownership and economic competition (efficiency). Law must be not just anexpression of, but also a limitation of these, as well as of other, indisputablyinevitable social values. In law, effectiveness is only one of several critical valuessuch as freedom, peace, security, justice, human dignity and truth. Lawexpresses limits and separates these values. It cannot be reduced to one or moreof these values.More moderate representatives of the school of economic analysis realizethat all law criteria and all values cannot be reduced to economic effectivenessand, thus, talk about synchronizing law and economic criteria in formulatingand applying law.4. The school of critical legal studies – This left oriented school is thecounterpart of the conservative school of economic analysis of law. It was built

Contribution of American Legal Theory in Defining the Concept of Law 81on the foundations of Yale, Harvard and Stanford law schools, on the traditionsof critical Marxism, especially that of the Frankfurt school, and the Americanlegal realism. In the traditional approach to law, this school particularly opposesformalism, positivism, and liberal legalism. The members of this school are leftliberals, reformers, and radicals. The program and method foundation of thecritical school is the diagnosis of the society according to which ”the Earth andthe world are thronged with evil and injustice. Profit and power are unevenlydistributed to the degree of criminal act. Hypocrisy and hysteria are truehallmarks of foreign and domestic politics. Law really, at least partly, reflects”the wish of those who govern to continue their governance”. 12 Based on thisassessment of societal situation, only a critical grading of the existing law andtheory, and the ideology which is in its core, is possible. According to thecritical school, the liberalism which is in the nucleus of the existing law serves asa cover up for the status quo by its ostensible care about freedom and individualrights. Legalism, formalism and positivism are in the service of liberalist ideology.According to their views, legal science deals only with the law given in formalsources of law. The meaning and substance of law are objectively given, thereforethey may be objectively comprehended applying the method of interpretation.According to the critical school which accepts the essential heritage of theAmerican legal realism, the presented assumptions are mainly false. Firstly, lawis not an independent social factor, it is neither apolitical, nor unbiased. Law isa political phenomenon, it is no more than pure politics. It can be seen in itscreation and its application. Legal norms have no objectively given meaning. Inpractice, law is always a matter of subjective political interpretation. Theformal-deductive character of legal conclusion is just a form and means of anarbitrary political decision. The critical school considers its task to disclose that,in fact, law, similarly to religion, gives legitimacy to the given order of power.Not just by its interpretation, but also by its formulation, law is an expression ofthe rich and the powerful, those who benefit from formal unity and free market.Law is not a self purpose phenomenon, it is primarily a societal instrument. Itcannot be separated from the values, morale and politics of the governing, orany other interpreter. It is a great question whether the dogmatic method ofinterpretation is scientific at all, whether a scientific i.e. unbiased interpretation12L. Schwartz, With Gun and Camera through Darkness CLS – Land, 36 Stanford L. Rev.,1984, p. 420.

82Miroslav A. Živkovićis possible, or jurisprudence will forever be primarily a skill and philosophy asthe ancient Romans understood it.5. Conclusion – The majority of the American legal schools of XX centurysupport several critical theoretical understandings:1) The theory of law must be built in close unity with the sociologicalperception of law;2) When giving a definition of law, it should be started from its function,and the function of law should be separated from the functions ofother normative systems;3) Both in its creation and in its application, law is closely connected topolitics and morale i.e. needs, interests and ideas of people.;4) Connection with morale particularly steps forward in a court processin which judges interpret and resolve the inconsistencies and ambiguitiesof the legal system and interpret concrete legal concepts, starting fromthe actual social needs and prevailing moral concepts;5) When defining the concept of law, the structural complexity of lawphenomenon (gradualism) and, linked with it, the progression of itsrealization, must be taken in consideration;6) When defining law, a special attention should be paid to the significanceof man and his legal awareness in the process of formulation of a final,concrete, legal decision.By opening new issues and finding original solutions to some traditionaldilemmas, the American theoretical thought of the 20 th century rises to the veryapex of the world legal thought, abreast with the European, which, up to thattime, had had an unquestionable supremacy.

4 Biljana Knežević, LL.MNovi Sad, SerbiaRONALD DWORKIN’S NATURAL LAWAbstract: This paper analyzes jusnaturalism of Ronald Miles Dworkin, one ofthe most important contemporary philosophers of law. The author tries to presentthe emergence and development of Dworkin’s natural law teachings, which greatlydiffers from classical natural law theory. The differences stem from his eclecticunderstanding of legal phenomenon. By combining influences of interpretativelegal theory, natural law theory, as well as of postmodern philosophy, Dworkincreates new, interpretative natural law. According to him, law is a category whichrests on the pluralism of legal principles and individual rights. The new value, bywhich the legal text is governed, is the law as integrity. Law as integrity ismetaphysical category which is achieved through the interpretation of a judge. Inthis way the judge becomes a central figure in decision making and becomes agenerator of law creation itself. Only one person, ”judge Hercules”, can attain ahidden meaning of natural law on which all legal principles are based, and whichwill give the best depiction of the needs of an individual in a society. The new legalreality achieved through interpretation should satisfy moral criteria of eachindividual person, and this new reality should treat everyone equally respecting theright to self-determination. In that manner, Dworkin’s interpretative natural lawtheory gives privileges to individuals: those that judge and those that are judged.Such understanding of the nature of law is focused on deciding hard cases.Key words: natural law, interpretation, legal principles, an individualThe views of Ronald Dworkin, one of the most influential figures ofAnglo-American legal tradition, occupy a middle ground between two totallyopposing standpoints in legal theory, between the strict positivism andcontemporary postmodernism. His publications Taking Rights Seriously 1 and1Ronald Dworkin: Taking Rights Seriously, Ducworth, 1977. (Ronald Dvorkin: Suština individualnihprava, Podgorica, 2001.)

84Biljana KneževićLaw’s Empire 2 had brought about a dramatic turn in the legal theory andphilosophy of law. This turn comprised a contemporary understanding of thetradition of liberalism embodied in Locke and Hayek, as well as defining of anew problem in identifying the phenomenon of law and analysis of its meaningand contents, i.e. the problem of legal interpretation.Two fundamental works of Dworkin had brought about changes in thelegal sphere in the USA, as well as in England where the legal tradition rested onstrict positivism and showed tendency of rejecting any possibility of interpretation(Austin, Bentham) and any attempt of other social phenomena, i.e. social factors,to influence it. One of the most significant characteristics marking the completelyundeveloped civil life during the 1950’s and 1960’s in America consisted ofestablishing absolute and unquestionable difference between what law really isand what law should be. Dworkin negates this concept by introducing morals inthe very notion of law, as well as by introducing the concept of principles, whichrepresent the basic value and precursor of human rights without basing themon the old rationalistic postulates.Dworkin’s philosophical-legal point of view integrates and synthesizesthe tradition of jusnatural theory and the theory of morals with the hermeneuticalcharacter of postmodern philosophy, which results in the interpretative theory oflaw.The existing classification of legal theory schools of thought in the Anglo--Saxon jurisprudence, regards the views of Ronald Dworkin as a theory balancingbetween positivism and the theory of social facts. On the other hand, they areclose to jusnaturalism, whereas some authors consider it a theory of realism. 3In a certain way, Dworkin follows the concepts of legal realism propounded byHolms, Cardozo and Frank. However, aside from the noticeable analogy, theseviews also differ considerably. 4 Such classification of Dworkin’s perception oflaw can be ascribed to his insistence on moral principles in the law and partiallyresults from a broad range of topics he dealt with. The fields he studied compriselaw, politics, social philosophy, bioethics, theory of adjudication, etc. 5 In his2Ronald Dworkin: Law’s Empire, Harvard University Press, 1986. (Ronald Dvorkin, Carstvoprava, Beograd, 2003.)3Simon Blackburn: Oksfordski filozofski rečnik (Oxford Dictionary of Philosophy), Novi Sad,1999, p. 93.4Gordana Vukadinović, Radivoj Stepanov: Uvod u filozofiju prava (Introduction to thePhilosophy of Law), University of Novi Sad, 2004. pp. 166.5Ibid, pp. 167.

Ronald Dworkin’s Natural Law 85opinion law represents a coherent system with immanent morals and socialfacts as well as compulsion. He claims that law should be regarded as a broadphenomenon, i.e. as integrity. 6Ronald Miles Dworkin is one of the most significant law philosophers ofour time. 7 His contemporaries often mention his monumental contribution tothe philosophy of law and consider him to be a theoretician enjoying worldwidereputation. 8 This is clearly proven by the number of reviews of his books andpapers, as well as considerable interest for his theory shown throughout theworld. Many of his books have been translated into different world languages.Ronald Dworkin, born in 1931, graduated jurisprudence at Oxford(Oxford – Magdalen College) after which he enrolled the Harvard Law Schoolfrom which he graduated in 1953. After graduation he worked as a clerk in anAmerican law firm (American Judge Learned Hand) between 1957 and 1958;after that he worked in a lawyers’ association (New York Law Firm of Sullivanand Cromwell) between 1958 and 1962. During that same year, Dworkinbecame a Professor of Law at Yale University. In 1969 he was appointed to theChair of Jurisprudence at Oxford. Other professors of jurisprudence at Oxfordwere likewise well-known experts of contemporary legal theory: John Finnis,Neil MacCormick, 9 and Jozeph Raz. From 1975 Dworkin had been working asa professor of law at the New York University where he held a seminar on thephilosophy of law together with Robert Nozick, until the latter passed away in2002. Dworkin had also been giving lectures at other prestigious Americanuniversities such as: Harvard, Cornell and Princeton. He had also givennumerous lectures at the University College of London in England.The first works he published drew a lot of attention with their antiutilitariannature. As a young author, Dworkin was especially influenced by6Ronald Dvorkin: Carstvo prava, pp. 189 ff.7David A. J. Richards: preface for: Stephen Guest: Ronald Dworkin, Stanford UniversityPress, 1998. pp. 18Gordana Vukadinović, Radivoj Stepanov: Uvod u filozofiju prava, pp. 166.9Neil MacCormick (1941), has worked as a professor at the university in Glasgow (GlasgowUniversity) and Edinburgh (Edinburgh University) since 1972. He is a member of the Academiesof Sciences and Art both in Finland and Britain. He is the author of numerous books on thetheory of law and politics. His major works include: Civil Liberties and The Law, 1977; LegalReasoning and Legal Theory, 1978; H.L.A. Hart, 1981; Legal Right and Social Democracy,1982; In Institutional Theory of Law, 1986.

86Biljana KneževićJohn Rawls and his work Two Concepts of Rules 10 , published in 1955. After thepublishing of this book, it became clear that liberalism had found a new defenseof its economy and contract based system which Rawls modified and improved.Dworkin was also greatly influenced by Herbert Hart, who had influenced awhole generation of young lawyers and law theoreticians who shared hisinspiration with Wittgenstein and the philosophy of common language. It istherefore safe to say that these two law theoreticians, John Rawls and HerbertHart, left an imprint on the work of Ronald Dworkin. Bernard Williams, one ofthe greatest Anglo-Saxon philosophers, also had a significant influence onDworkin. His influence is especially noticeable in Dworkin’s idea of equality.Gharet Evans, another philosopher, needs to be mentioned when we talk aboutthe work of Ronald Dworkin 11 . During the period between 1973 and 1975Evans and Dworkin held a seminar at Oxford dealing with the topics ofimpartiality in law and morality. It was at these seminars that many of theirjoint ideas were developed. The most significant publications of the 1950’s which,among others, had helped Dworkin to define his own view of law were the worksof: Julius Stone, The Province and Function of Law, 1946; Wolfgang Friedman,Law and Social Change in Contemporary Britain published in 1951; DennisLloyd, Introduction to Jurisprudence published in 1959, containing an overviewof the main jurisprudence schools of thought. 12 These works helped himunderstand and overcome traditional liberal ideas of state and society andcreate his own legal reality.Law Beyond the Law 13 is a very important title of Dworkin’s whichexhibits his metaphysical views and explains to a great extent his views on law.This paper became one of the chapters in his book Law’s Empire and explainshis theory of integrity, i.e. law as integrity, very clearly and with great precisionwhile negating any form of abstraction in the definition and interpretation oflaw. The title itself, Law Beyond the Law, indicates that law certainly does notcomprise just court decisions, contrary to the point of view supported byrealists, conventionalists and conservative legal theory. Nevertheless, Dworkinclaims that law does not consist of bare legal norms or pure legal texts either,10John Rawls: Two Concepts of Rules, Philosophical Review, 64, 1955.11This unrecognized young philosopher with great talent passed away tragically in 1980, atthe age of only third one.12Stephen Guest: Ronald Dworkin, Stanford University Press, 1-16.13Ronald Dvorkin: Carstvo prava, pp. 433. ff.

Ronald Dworkin’s Natural Law 87contrary to what positivists claim. Law is an independent system, with its owndefined habitus; it represents a self-sufficient, corporative whole which shapesand purifies itself. Legal system contains various forms of law which differ inlevels of purity and perfection. Discovering the perfection of law alwaysprogresses from the worse towards the better. The less perfect forms of law,namely, contain also a more perfect form which is yet to be discovered. Thus,we gradually progress to more perfect forms. This is a very slow, almost evolutiveprocess. The law therefore represents a coherent, organized whole, the purestform of which is yet to be found. This is the task of absolutely intelligent judge,whom Dworkin calls Hercules, who will be capable of identifying all essentialstructures of an ifallible system and finding its most perfect form and meaningcontained somewhere in a legal text. The title of his paper – Law Beyond the Lawleads to certain natural-law implications, i.e. the law lies outside legal texts andrepresents independent and self-sufficient system integrated with positive lawin such a way as to have positive influence on it. Purifying the law leads to itsmore perfect form, having as a goal the image of this ’law beyond the law’. Thelaw attains its ideal through the interpretation of a judge.As a consequence, many legal theorists, as well as those who criticizeDworkin, such as Neil MacCormick, Raz or Paul Gaffney, classify him as atheorist of natural law. Raz was among the first to notice natural law elementsin his theory. 14 Dworkin gave a new meaning to natural law by introducingeternal values reflected in systematic and complete integrity, as well as by insistingon moral contents of the law. Natural law does not study what law is, but what itshould be. Pursuant to natural law, judges should decide difficult cases byinterpreting the political structure of their community in a special way trying toidentify moral principles of the community. 15Dworkin’s world, much like Rousseau’s, originates from the same idea ofcreating the world from the subjective. He believes that a man has been alienatedfrom his own reality and that his condition is not authentic. However, the basicdifference between these two authors issues from contrasting perceptions ofabstract categories such as freedom, general will, and civil state. Dworkin doesnot postulate a non-historical moment in the existence of natural state – hisindividual rights result from the existence of the individual morality and conscience14Joseph Raz: ”Professor Dworkin’s Theory of Rights”, Political Studies, 26, 123, 1978. Quote:Ronald Dworkin: The Essence of Individual Rights, pp. 444.15Ibid.

88Biljana Kneževićof each person, where morality is divested of any notion of collectivity. Generalwill, postulated by Rousseau, is an abstract notion of the freedom of the majority,whereas the will of all includes individual wills of each member of a society. 16In his work, Dworkin completely disregards general will and abstract categoryof freedom. He insists on only one of Rousseau’s claims for freedom and equality.He insists only on equality. This commensurable and commutative value is notcharacteristic of contemporary liberal world founded on the material aspect andfree exchange. On the other hand, Dworkin’s theory clearly reflects the pinnaclein development of particular wills opposed to the general will. The wish forequality remains in his theory only an impossibility of denying the notoriousfact that general distributor does in fact exist. Thus, a fatal inversion takes place:the will of all resists the general will and strives to conquer through its anarchism.Universes of individual wills, set in motion by subjective, social behaviour andcreation of individual personality rise above the politics – ’a modern subjectivityresting on the principle that all exists because of me, presented itself explicitlythrough a decision to create the state and era from the very beginning, from theidea itself –world is created from a single idea.’ 17Dworkin’s theory in its natural-law dimension reminds of an elaboratedconcept of Rousseau. It casts a new light on the theory of natural law, by negatingthe concept of general will. General will does not create law, it represents merelya small part of the law as integrity; it represents the power of politics and rule inwhich individual rights and individual will are dispersed and deprived. In placeof general will as a central topic justifying supremacy of collectivity, Dworkinpostulates a new source of sovereignty – law as integrity. Law as integrity isindividual and general at the same time – it represents a ”common” will whichdoesn’t make ontological differences between an individual and collective. Itrecognizes equally an individual and the collective. In Dworkin’s theorysubjectivity is raised to objectivity. Law becomes integrity of both the individualand the society – Rousseau’s general and individual will, where the individual,i.e. will of all is given priority. However, this imagined integrity has not yet beenaccomplished. Law is a system which purifies itself – by pursuing the values ofintegrity less perfect forms become more perfect anticipating their time of the16Gordana Vukadinović: Žan Žak Ruso i prirodno pravo, (Jean-Jaques Rousseau and NaturalLaw) Petrovaradin, 2005, pp. 94. ff.17Lazar Vrkatić: Ontologijski stav filozofije prava (Ontological Content of the Philosophy ofLaw), Novi Sad, 1997, pp. 41.

Ronald Dworkin’s Natural Law 89absolute, i.e. the integrity itself. 18 Integrity is not unattainable but it has not asyet been achieved. Dworkin himself thinks of it as a possible utopia, as well asthe solution to the incessant conflicts between the political power and theindividual, regarding the power of politics as sufficiently abstract to lose thecredibility of subject discussed in the law. Dworkin’s theory questions theauthenticity and legitimacy of power. It poses the question whether a state shouldexist at all if it fails to include in its concept innumerable individual wills.Owing to this discrepancy between the law as it is and the law as it should be, itis safe to say that Dworkin’s theory is as much a natural law theory as thetheory of Rousseau and his contemporaries, such as: Lon Fuller, the founder ofprocedural subtype of natural law; and John Finnis, the founder of substantivenaturalism. 19The analysis of Dworkin’s and Rousseau’s work shows another similaritybetween the two authors which has to be kept in mind. The similarity lies in theact of installing one person that should accomplish a heroic task of attaining theset values of the ideal. In Rousseau’s theory this person is a ”heroic legislator”vested with the powers of the highest human reasonableness, 20 personifying thegeneral will and the spirit itself; whereas in Dworkin’s theory this is the Herculesjudge who also possesses superhuman abilities in making decisions which allowhim to penetrate the very essence, i.e. the nature of law. If the heroic legislatorof Rousseau embodies general will that creates everything from one idea, 21 inDworkin’s theory the individual will of this Hercules is not a product of thegeneral, which indicates additional revolution and advocacy of the subjective.Subjective in his work is presented in its full significance – as a being inherentlyabundant in virtues. All multiplicities and heterogeneities of contemporarysociety and law are revoked through an ideal image of a unique, virtuous man.This is a true celebration and praise of an individual. ”Heroic legislator” inRousseau’s theory deals with generality; he represents an emanation of generalwill and enacts laws. Hercules does not represent the majority, nor is he amanifestation of any kind of generality. As such, Hercules is not capable of18Ronald Dvorkin: Carstvo prava, pp. 243 ff.19Ronald Dvorkin: Ibid, pp. 433.20Žan Žak Ruso: Društveni ugovor – O poreklu i osnovama nejednakosti među ljudima (SocialContract – About Origins and Foundations of the Inequality Among Men), Zagreb, 1978. pp. 117.21Gordana Vukadinović: Žan Žak Ruso i prirodno pravo, pp. 102. and further, Lazar Vrkatić:Ontologijski stav filozofije prava, pp. 58.

90Biljana Kneževićenacting laws but he is very adept in deciding individual cases. His virtue is noteven a social virtue, because that too is derived from general virtue. Civic virtuedoes not differ from general virtue in absolute terms and while general virtue isnot present in everyone, the civic virtue aspires to spread in all. 22 Hercules,therefore, does not possess civic virtue, nor does any other individual in Dworkin’ssociety. ”Heroic judge” is a distinguished individual vested with the right toattain the absolute, i.e. the integrity itself. Dworkin’s theory can therefore beclassified as neither strictly liberal nor rational, least of all intellectual, whilst theindividuals in Dworkin’s society are not citizens – they are neither virtuous norrational. Individuals in Dworkin’s society have their own, self-willed nature,which are inherently authentic and do not constitute a part of ”spirit of thecommunity” or any other abstract principle and generality.General will as a political moment is put in question, ruined with theestablishment of «self-awareness» of an individual and advancement of the new”technology society”. We can see that Rousseau’s theory when applied in thesetting of a modern society and law can not be presented as the manifestation ofgeneral will. The only thing certain is a clear tendency to establish a completelynew order, even though it may be a utopia, i.e. unreality.The novelty Dworkin introduced in the theory of natural law lies in therelation between natural and positive law. More specifically, positive andpredetermined, natural law, are not entirely metaphysically separated in thetheory of law. What links them is interpretation. Interpretation gives them life;it is their logos, an eternal flame linking two seemingly irreconcilable opposites.Interpretation is without a doubt the operating principle without which neitherpositive law, nor law as integrity would be able to function. Through interpretationpositive law continually tries to find the best possible answer and achieve thehighest value. This is both its weapon and the way in which it can be saved, broughtto life and revolutionized. Principles are the starting point of interpretation,because human rights originate precisely from these principles. They indicaterights which man is entitled to naturally and outside of legal texts, in other wordsthey are autochthonous.Let us consider now the nature of Dworkin’s absolute, i.e. law as integrity,in the light of natural law theories. Heraclites claimed that ”From a God’s pointof view all things are beautiful, good and just; however, man has made assumption22Lazar Vrkatić: Prirodno pravo i pozitivisanje prava (Natural Law and Positivization ofLaw), doctoral dissertation, University of Novi Sad, Faculty of Law, 1993. pp. 222.

Ronald Dworkin’s Natural Law 91that some things are just and others are not” 23 . Aristotle believes that naturallaw is only that law which has the same significance everywhere, i.e. a lawcommon to all. 24 Other ancient writers, such as stoics, claimed that natural lawrepresents the measure of all other laws, while others equated it with God. Theforegoing views show that natural law is regarded as something eternal andconstant, unlike the law of man which is susceptible to changes. While naturallaw, whether considered to be an embodiment of God or nature itself, ismonolithic and unique representing an ideal and absolute existence, temporallaws are led by forethought of the immutable and inevitably changed in attemptsto attain perfection. A sharp metaphysical distinction exists between natural, setlaw and positive law.This represents one more difference between Dworkin’s teaching andclassical theories of natural law. At the same time this is also a novelty and asensational discovery of its own kind. The existence of natural law, i.e. law asintegrity, is not motionless. On the contrary, Dworkin says that he never claimedthat there is one single, right answer, but a variety of ’right’ answers. 25 His world oflaw as integrity is not monolithic or motionless. Quite the opposite, it contains theprinciple of inclusion. Open to all new ideas and multi-layered, in other words, it ispluralistic and dispersed, just as individuals differ from each other. This claimrepresents an undisputable proof of the influence of critical theories as well aspostmodern theory of law. Dworkin has been classified as a theorist of ”postliberalism”26 for a good reason. It is precisely this essential element of his theory:the mobility, inclusion and flexibility, where we recognize his departure fromclassical philosophy of natural law as well as breakaway from Kant and any otherclassical philosophy. He claims that universal natural law does not exist and that itdiffers throughout regions and historical eras, as well as individually in each case.Thus, Dworkin’s natural law becomes interpretative natural law. With suchperception he negates the existence of categorical moral imperatives, presumedhuman rationality, universal intellectual contents, even God himself (natural law asdivine providence) and seeks out authentic achievements hidden in his nature.Dworkin’s theory does not contain artificial geometry of omnipresent mind; this23Quote from: Leo Strauss, Prirodno pravo i istorija (Natural Right and History), Beograd,1997. pp. 11924Aristotel: Nikomahova etika (Nichomachean Ethics), Beograd, 1960. pp.12925Ronald Dvorkin: Carstvo prava, pp. 44726Simon Blekburn: Okfordski filozofski rečnik, pp. 93

92Biljana Kneževićconcept becomes totally exhausted with irrational elements which recognize evenimagination and everything else comprising an individual. These elements areprinciples from which human rights are derived and which are different in everyperson. Their common denominator is neither mind nor intellect. This denominator,according to Dworkin, can only be the possibility of communication betweentotally different individuals. Dworkin insists on directing attention to the impossibilityof speaking in the same language 27 and negates the fact thatcommunication is carried out exclusively through the phenomenon of humanrationality.The second argument supporting the claim that universal rational content,i.e. presumed rationality, does not exist, consists in his explanation of self--construction, i.e. self-purification of positive law. Law develops through evolution,namely: its simple form contains a more perfect one, whereas the latter containsan ever more perfect form. Law is dynamical; law gains this dynamic, i.e. progress,through interpretation. However, this is not an interpretation of any kind, it isan interpretation performed by an individual. Thus, the law progresses creatingcontinually new legal realities. New legal realities are also interpretations whichshould satisfy moral criteria of individuals, interpretations based on principlestreating everyone equally, without prejudice and respecting each person’s rightto self-determination. This process is infinite. A permanently set law, therefore,does not exist.All the classic formulas of natural law used by Dworkin have beenobserved, as well as several postmodern elements. The aforementioned leads toconclusion that Dworkin is trying to synthesize moral theory with the traditionof natural law and elements of postmodern philosophy. The result isinterpretative theory of law, focused on the essential moral nature of decidingdifficult cases. The judge is the one who must find the ideal integrity. He27Djilo Dorfles (1910– ), one of the most renowned philosopher of aesthetics uses expression’pre-Babylonian state’ (before the construction of the tower of Babylon was all people spokethe same language) in his book Theory of Disharmony he tries to indicate the so-calledgeometric abstractism, i.e. rationalized, ”understandable” perception of world and reality.Taking this view into consideration, it is clear that Dworkin’s interpretative theory of lawand Habermas’s theory of communication fully recognize ”post-Babylonian” historical stage,observing people in line withthe principles of their diversity.

Ronald Dworkin’s Natural Law 93emphasizes epistemic and metaphysical aspect of morals. He gives priority toindividual goals instead of the politics of a group. 28At this point, Dworkin makes a truly brave and impressive inversion.Individual opinion becomes the objective truth. This highly significant andessential postulate becomes the source of very serious consequences in Dworkin’sviews on the rights of the collective and individuals, human rights issues, legalrelations, duties and obligations, as well as theory of adjudication. Should weaccept the thesis that morals are ontological expression of social principle, 29 wecan conclude that society in Dworkin’s theory is not a civil society because it doesnot contain morality which is derived from the collective according to a traditionaldefinition. This society is rather a community of individuals in which they aretreated equally by the authorities and interconnected through communication –exchange of opinions about their uniqueness.Individual will does not stem from the concept of state or spirit; it existsof its own. It has its own independent morality. The attempt to equate thesignificance of an individual and the state is indeed quite noble. However, thisintention opposes profoundly the authority of the spirit of the state and dogmatismof its sublime position in the development of the world spirit. Owing to thischaracteristic, Dworkin’s theory of law is decadent and destructive not only tothe very notion of the state, but also seriously challenges the idealistic premiseof the development of the being itself.Judge Hercules is also only an individual trying to take into considerationall relevant facts of the broader concept of ’law as integrity’ in the process ofadjudication, this judge respects not only laws and political goals but equally andto the same extent the opinions of each individual. In this way he builds his owntheory of law. Using the existing law he creates a new, evolved and more perfectlaw. Dworkin believes that existing law contains a purer form of law which hecalls pure integrity. The task of judge Hercules is to discover the most perfectpossible law within the existing imperfect law. To attain law as integrity, thehighest quality in the sphere of law, the subject discovering this law, i.e. Herculesmust be endowed with characteristics enabling him to accomplish this task.For this reason, Dworkin ascribes to judge Hercules the virtues of Aristotle’sancient man full of virtues. This judge, however, is not Aristotle’s man nor can28Paul Gaffney: Ronald Dworkin on Law as Integrity Rights as Principles of Adjudication,Edwin Mellen Press, 1996.29Lazar Vrkatić: Prirodno pravo i pozitivisanje prava, pp. 364.

94Biljana Kneževićthe word ’virtue’ carry the same importance and meaning in the theory ofDworkin and the teaching of Aristotle. Virtue is a concept which represents theessential value of antique philosophy, especially in the philosophy of Plato andAristotle. It denotes above all morality, honour, nobleness and heroic acts – itrepresents the activity of the soul. 30 Aristotle believes that virtue is somethingself-sufficient and perfect – he defines virtue as the measure of all things. 31 Inhis opinion, a man of virtues merely reflects the polis and symbolizes immobilityand self-sufficiency. Aristotle abhorred democracy and considered it to be theworst form of rule, whereas he thought of consumption-production industry asthe most primitive form of activity. 32 Dworkin never mentions self-sufficiency;in his theory everything progresses and changes from positive legislation to theessential assiduity of law as integrity. Dworkin’s individual may hold opinionswhich differ entirely from the views of community and the state. The questionnow is why does judge Hercules have to be the one endowed with virtues.Generally speaking, the nature of virtue is rather disputable in the society inwhich Dworkin lives. This analysis can only attempt to provide an answer tothat question.To answer the question of what is virtue in the world today, we must firstrealize that judge Hercules actually represents a generator of interpretation.Interpretation is the linking element and it sets the whole of Dworkin’smachinery in motion. It has a defined goal and course, i.e. it progresses towardsset values which comprise law as integrity and the integrity itself is again subjectto interpretation. In this dynamic Dworkin’s world it is difficult to identifysomething that will be constant and unchangeable, the only thing that remainsmotionless. Society in which we live represents a sort of phenomenon in thedevelopment of human consciousness in which the conflict of opinions,behaviour and habits is fully allowed. In this society homosexuals and feminists,theorists supporting post criticism opinions and members of ’jurisprudenceoutsiders’ express their opinions freely without the desire to prove them right.In this case, however, Dworkin has succumbed to the ancestral, old beliefsshowing his proneness to idealism by introducing virtues in a legal system.Virtues are an instrument used to achieve ’correct’ interpretation; only through’virtuous interpretation’ can pure integrity be attained at any given moment.30Ljubomir Tadić: Filozofija u svom vremenu (Philosophy in its Time), Beograd, 1998. pp. 6.31Aristotel: Nikomahova Etika (Nicomachus Ethics), pp. 16.32Aristotel: Politika(Politics), Beograd, 1960. pp. 17.

Ronald Dworkin’s Natural Law 95Rousseau also discussed this matter and believed that man is born to live invirtue. 33 According to Dworkin, the whole activity, i.e. interpretation, as thelink between the two worlds, lies in the virtue to recognize bipolarity and twosides of each process state – individual. A true activity that alters the world cancome solely from virtue which is able to comprehend this. Dworkin realizes thisclearly and tries to ascribe these virtues to the omnipotent judge Hercules.Unfortunately, Hercules is only a subject within the law. In Dworkin’s theoryeverything is derived from the subject: morality, interpretation, law, even thestate. All these are founded on the morals of an individual. This morality is notobjective or of rational nature. Precisely because of the fact that objective moraljudgment is not recognized, it would be better to say that in Dworkin’s theoryeverything lies on the principles of an individual. Since we can not reduce theindividuals in Dworkin’s theory to general rationality, they do not represent apart of general moral legislation. It can therefore be concluded that they aredivested of the feeling for justice and impartiality recognizing no generalcategory. The individual has only ’personal justice’ and individual independentmorality. The only person capable of comprehending integrity and generalcategories is judge Hercules because he possesses virtues. However, Hercules isnot polis; he is not a man of ancient Greece and therefore has no old, ancestralvirtues. Precisely because of this, Hercules does not exist; he is an imaginaryand supernatural person. In reality this imaginary person can have only his ownindividual interpretation. Dworkin’s attempt to hypostasize the subject as athinking being, differs entirely from the ways and methods in which men usedto think. German idealists believed that the subject was subordinated to theobjective truth – Kant believed that the subject can never perceive this truth, 34whereas for Hegel subject is only a grain of sand in history, necessary part of theeternal mind moving in compliance with its rules. 35 Dworkin’s views are totallyopposite: the subject is one that creates and sets conditions, poses questions andgives answers, whether it be Hercules vested with virtues and guided by principlesor any other individual of the society advocating personal opinions. It is clearthat, regardless of his opposition towards postmodernism, feminism and many33Gordana Vukadinović: Žan Žak Ruso i prirodno pravo (Jean-Jaques Rousseau and NaturalLaw), pp. 51.34Imanuel Kant: Kritika praktičnog uma (Criticism of the Practical Mind), Beograd, 2004, p. 29.35Georg V.F Hegel: Enciklopedija filozofskih znanosti (Encyclopedia of Phylosophical Science),Sarajevo, 1987. p. 122, 412.

96Biljana Kneževićother contemporary theories, Dworkin’s theory was influenced by critical and’outsider theories’ to a very great extent. According to him, no coherent programmecan survive for a long time in a community with too many members. 36 We seein that Dworkin’s theory both coherence and integrity lie in the personalityitself. Hercules is a hybrid resulting from a fragmented society; he is trying toreach the hidden meaning of politics. By conferring the finding of potentialmeaning to Hercules alone, Dworkin runs the risk of transforming Herculesinto a purpose of his own, which is exactly what Hercules does become. Hecomes to be the source and centre of interpretation. The purpose in Dworkin’stheory therefore does not lie in the collective or laws observed only formally. Heseeks the existing reality of human nature and laws which would represent itaccurately. Individualization of society – this is the quality Dworkin promotesand Hercules represents its prototype. In this way the law becomes obligated tothe individual and not vice versa.The idea of modern subjectivism in Dworkin’s work evolves further – anindividual is no longer an abstract subject in the law resulting from the generalgood, but a free maker of the law. Herbert Marcuse was right when he comparedthe spirit of the world, a hypostasized historical subject, with the hidden andterrifying Calvinistic God in his title The Mind and Revolution. Hegel arguesthat this deus absconditus turns history into a scene of suffering and afflictioninstead of happiness. 37 While Charles Taylor believes that avoiding moralabsolute was the product of the supremacy of technology, Dworkin is closer tothe opinion that avoiding this absolute represents a deliverance from tyranny ofunified thinking. Subject in the law is not free; individuals in contemporarysociety are inhibited by the omnipotent collectivistic system of rule.Nevertheless, there is one element in Dworkin’s theory that allows truefreedom of man in an authentic and ontological sense. Only those that createand those who have freedom of creation are free. For the time being, only judgeHercules is free because his freedom is not a permitted freedom; he has thefreedom of interpretation, i.e. creation. The social definition of freedom isreflected in the attitude that a person’s freedom is limited by another person’sfreedom. This is a rational, liberal attitude which regards freedom as limitedself-will. 38 However, the freedom of Hercules does not have the form of36Ronald Dvorkin: Carstvo prava, pp. 228. ff.37Ljubomir Tadić: Filozofija u svom vremenu, pp. 22.38Lazar Vrkatić: Prirodno pravo i pozitivisanje prava, pp. 290.

Ronald Dworkin’s Natural Law 97permission; he is the only one in touch with the concept of integrity as anabsolute concept and therefore the only one who has freedom in the substantialsense. As we have already concluded a person with supernatural qualities, suchas Hercules, does not exist – and this is precisely what constitutes Dworkin’smetaphysics. Set values which we may achieve, principles as basis for individualrights – that is what constitutes Dworkin’s new natural law. The rest of usmortals are not allowed to attain freedom in a substantial sense. Our freedom isactually a cry for equality. We can conclude therefore that everything Kant saidabout freedom, Dworkin can argue about equality. Do we have a right to freedom?Should we embrace Dworkin’s views the answer will certainly be negative.Calling attention to such facts, as well as lack of freedom and inequalityamong individuals in society constitutes another enormous contribution ofDworkin to the theory of natural law and contemporary postmodern developmentsin the field of law. He gave us the opportunity to view modern legal theory froma different angle, i.e. from a perspective of modernized and multiple legal realityoriginating from ’anti-universal’ and post-metaphysical beliefs. Such a viewpointrefuses to accept legality as an emanation of unitarian mind, whereas universalreason becomes impossible in the setting of social and ideological pluralism. InDworkin’s theory, just like in many other modern theories,uninterruptedcommunication takes place between subjects dealt with in the law and those whodeal with the law. In this way, legality is free from preconceived reality; it becomesan integrative phenomenon which ’comprises’ experiences of individuals andwhich is interpreted in the ’common language’ known to all.

5 Sanja Đurđić, LL.M, AssistantFaculty of Accommodation BusinessNovi Sad, SerbiaLIBERAL THEORY OF JUSTICE OF JOHN RAWLSAbstract: John Rawls is the most important and most influential politicalphilosopher of the 20 th century. His book The Theory of Justice marked theturning point in American political philosophy, having in mind that it has meritsfor the renaissance of the idea of justice in contemporary political philosophy.In this book Rawls explained his liberal theory of justice in order to construct amodel of a fair individual constitutional and democratic society. However, hehas often been criticized for dealing with problems in individual societies i.e.constitutional democracy. At the same time he has been pointed up to neglect theproblems of justice in international affairs. Rawls was aware that it was necessaryto expand his liberal concept of justice with problems of fair internationalrelationships, meaning that there was a need to formulate the conception ofinternational justice. In that way, he made a complete liberal theory of justicewhich comprises the concept of justice for individual democratic society andjustice for individuals as well as the concept of international justice.Key words: principle of justice, basic structure of society, justice forindividuals, international justiceThe American philosophy from the beginning of the 20 th century is markedby the development of logical positivism, followed by the philosophy of language.Theoretical marginalisation of ethics and politics was further continued, so thatit is significant for the whole first part of the 20 th century. These circumstanceslead to the belief that political philosophy was dead. This pessimistic view ofAnglo-American political philosophy was given by Peter Laslett in 1956 whenhe said that ”for now the political philosophy is dead in any case” 1 .1P. Laslett: Philosophy, Politics and Society, Oxford, Blackwell, 1956.

Liberal Theory of Justice of John Rawls 99The turning point and novum in American political philosophy was setby the capital work of John Rawls The Theory of Justice, published in 1971. Hetakes the credit of refuting the belief that political philosophy is dead as well asof renewing the American political philosophy of the seventies in the 20 th century.With his work Rawls brought back to life reflections of intellectuals about theproblems of justice. Thanks to this, it can be said that he is responsible for therenaissance of the idea of justice in the contemporary political philosophy.Rawls’ theory of justice was born as the consequence and reaction to thepreceding circumstances. Namely, in the modern period, the dominant ethicaland political theory in western democratic societies was utilitarianism in itsvarious forms. Rawls’ intention was to build an understanding of justice whichwould be a reasonably systematic alternative to utilitarianism and more acceptablethan utilitarianism. The main reason for this intention he finds in the weaknessof the utilitarian doctrine as the basis of institutions of constitutional democracies.According to Rawls the main drawback of utilitarianism is considered to be itsaim of utmost collective happiness, i.e. utmost balance of collective satisfactionof all individuals.Rawls’ liberal theory of justice was born in the course of describing politicaland social justice, which would be more acceptable than the leading well-knowntraditional concepts. With it he tried to generalize and put on a higher level ofabstraction the traditional theory of social agreement, as it was represented inthe 17 th and 18 th century by John Lock, Jean Jacques Russo and Immanuel Kant.Rawls formulated his theory of justice for a specific type of subjects. It is,mostly, applied to what is called the basic structure of society. The society, he hasin mind is a modern constitutional democracy. He considers the basic structureof society, i.e. an individual constitutional-democratic society to be the primarysubject of his theory of justice. By basic structure of society he means basicpolitical, social and economical institutions of society and the way they fittogether into a single system of social corporation. Rawls differentiates theprinciples of justice for individual constitutional-democratic society, i.e. principlesof justice for the basic structure of society from principles of justice applied toindividuals and their behavior in special circumstances. The theory of justicebecomes complete only when, alongside with the principles of justice of the basicstructure of society, it also comprises the principles of justice for individuals. Itis a fact that the concept of justice for individual constitutional-democraticsociety is the ground on which the justice for individuals and international justiceis based and further developed. His main intention was to establish the conditions,

100Sanja Đurđićwhich were necessary for the realization of a just, and modern constutionaldemocracy. The fulfillment of conditions, which makes a modern constitutionaldemocracy just, was found out by Rawls in two principles of justice asobjectiveness. These principles which according to him, can provide justice ofthe basic structure of society, are the following:1) Every person has an equal right to a completely corresponding schemeof equal basic freedoms, which is compatible with a similar scheme offreedoms for others – a principle of utmost equal freedom.2) Social and economical inequality should be rendered so as to satisfytwo principles:a) they have to be connected with offices and positions, which are open toeverybody, under the condition of just equality of possibilities – theprinciple of justly equal possibilities.b) they have to be most useful to those members of society who are in themost unfavorable position – the principle of difference.The above mentioned principles are primarily applied to the basic structureof society. They regulate the legislation of rights and duties, as well as distributionof social and economical profits. The implementation of the mentioned principlesof justice into basic political, economical, social institutions would, according toRawls, make the society just. The fact of fulfillment of the mentioned principlesof justice itself would show the justice of that society. Rawls’ aim was to reconcilethe ideal of freedom with the ideal of equality, with his concept of justice for thebasic structure of society, better to say, its principles of justice. The function ofthe two principles of justice would be fulfilled if they influenced the basicinstitutions of society in order to enable the realization of the values of freedomand equality at the same time. In that way the citizens of a modern constitutionaldemocracy would be free and equal personalities.The basic freedoms, offered and guaranteed by the first principle, aregiven in the form of a list. The most important freedoms comprised by the list:political freedoms (right to vote and perform public works), together with freedomof speech and association; freedom of consciousness and freedom of thought;freedom of the individual which includes freedom from psychological pressureand physical assault and disintegration (of individual’s integrity); right in ownproperty and freedom from false arrest and detention, right and freedomscomprised by the rule of law. According to the principle of utmost equal freedom,these basic freedoms should be equal.

Liberal Theory of Justice of John Rawls 101The second principle of justice refers to the distribution of profit andwealth and to establishing organizations, which use the differences in authorizationand responsibilities. All social values should be distributed equally. Everydeparture from equal distribution of profit and wealth is allowed only if theuneven distribution is beneficial for everybody. Inequality, which is not beneficialfor everybody, represents injustice. At the same time the positions of authorityand responsibility have to be available to everybody. The second principlerequires the positions to be open, meanwhile the economical and social inequalityare regulated to bring profit to everybody.Reasons which give advantage to his principles of justice in comparisonwith the others from the list offered to the participants in the original positionaccording to Rawls are: condition of generality, universality in application,limitations of information; understanding of the parties who have certain basicinterests which have to be protected if possible and that as free individuals theyhave a highest ranking interest to preserve their freedom to modify andimprove these aims. He is certain that the participants of the original positionwill be in favor of his principles of justice for the mentioned reasons. This isbecause they require equality in regulating basic rights and duties, and becausethey consider social and economical inequality just, only if, as a consequencethey have settlement profits for everyone, primarily for the members of societywho are in the most unfavorable position. ”Once we decide to look for acomprehension of justice which prevents using coincidence of natural talent andcoincidence of social circumstances as measures of political and economicaladvantages” 2 , his two principles of justice become inevitable, concludes Rawls.Therefore, he is convinced that his principles of justice provide betterunderstanding of demand for freedom and equality in a democratic societythan their alternatives (utilitarianism, perfectionism, intuitionism).In Rawls’ concept of justice as objectiveness, after the selection of principlesof justice for the basic structure of society, the next thing to do is to select theprinciple of justice for individuals. Although of secondary and second-instanceimportance, only after considering the principles of justice for individuals, theunderstanding of justice as objectiveness becomes complete. Conferring advantagein the choice of the principle of justice for the basic structure of society is inaccordance with Rawls’ understanding of justice as the first virtue of social2J. Rawls: A Theory of Justice, Harvard University Press, Cambridge, 1971 (Serbian translationwill be used in the text, Dž. Rols: Teorija pravde, CID, Podgorica, 1998, 21).

102Sanja Đurđićinstitutions, i.e. with the social nature of the virtue of justice and its tightconnection with social practice. The principles of justice for individuals, as wellas principles of justice for the basic structure of society are the subject of genuineagreement in the original position. They are, also understood as a result of ahypothetical agreement. As in the case of the selection of the principles of justicefor the basic structure of society, the selection of the principles of justice forindividuals is done from a short list of traditional and well-known principles.The selection of the principles of justice for individuals is significantly simplifieddue to the fact that the principles of justice for the basic structure of society, havealready been adopted. Namely, the offered alternatives are limited only to those,which are compatible with the two principles of justice for the basic structure ofsociety. The principles of justice for individuals set their institutional relationshipson one hand, and the way individuals become engaged with each other on theother hand. It is necessary to choose the principles of justice for individuals,which are in accordance with the principles for the basic structure of society.Rawls divides the principles of justice into requirements and permissions.Requirements comprise obligations and natural duties. By obligations he meansthe principle of justice and good faith. Natural duties are divided into positiveand negative. As examples of positive natural duties he quotes: supporting ofjustice, mutual help, and mutual respect. Under negative natural duties he means:duty of not doing wrong, duty of not harming the innocent and so on. Havingin mind that Rawls limits his discussion on the theory of social justice, he is lessinvolved with the other kind of principle for individuals – permissions.This is because permissions are actions left at the free disposal of individualsto be or not to be done. These actions do not disturb any of the obligations ornatural duty. Permissions are divided into indifferent i.e. morally indifferentand over-duty permissions. By over-duty acts he means acts of benevolence andmercy, heroism and self-sacrifice. They are not required because they are neithersomebody’s duty nor obligation. The individual who has performed an over--duty act has not invoked a challenge permitted by natural duties because of asignificant loss or risk for the one performing such an act.Rawls has often been criticized for dealing with problems of justice in anindividual society, i.e. in a constitutional democracy. At the same time, it hasbeen pointed out that he neglects problems of justice in international relationships.Well aware of the limitations of his theory of justice, Rawls developed andadded onto, the concept of international justice. He did it in his book: The Lawof Peoples, published in 1999. With this extention of his liberal theory of justice,

Liberal Theory of Justice of John Rawls 103he explains the way it can be applied not only to individual, constitutional--democratic regimes but also to international relationships. His intention wasto provide conditions for a just international community and just internationalrelationships and his aim was global justice. He set his main task to be bringinginto just political principles, which regulate the behavior of countries withagreement learning and the explanation of the moral basis of internationaljustice 3 . In that way, he formulated the concept of international justice alongsidewith the concept of justice for the basic structure of society and justice forindividuals.Rawls’ concept of international justice extends the idea of social agreementfrom the basic structure of society to the society of people. So it comes intobeing by extending the liberal idea of justice. At the same time, he sets basicprinciples, which can be and should be accepted by liberal, as well as non-liberalbut decent societies as a standard for regulating it international relationships.By the society of people Rawls means all peoples who in internationalrelationships respect ideals and principles of international justice. Those peoplescan be: liberal and non liberal but decent peoples. Tyrant and dictator regimescannot, according to Rawls, be accepted as respectable members of a reasonablesociety of peoples.Rawls would consider the aim of the concept of international justicecompletely achieved if all societies could constitute either liberal or decentregimes. Therefore, the purpose of Rawls’ concept of international justice is thepossibility of establishing a reasonably just society of peoples, which wouldcomprise liberal democratic and decent peoples.In the course of creating the concept of international justice as well asduring the creation of the concept of justice for individual liberal democraticsocieties, Rawls used the theory of social agreement, better to say, an expressionhe calls original position. In the original position, under the veil of ignorance, therational representatives of peoples fairly set the basic conditions of cooperationbetween peoples who are as liberal people treated as free and equal. The maintask of the rational representatives of peoples in the original position is toconstitute the concept of international justice, its ideals, principles and standardsas well as to set the way its standards are applied to political relationships between3Dž. Rols: Teorija pravde, 343; see our unpublished M.A. thesis: Liberalna teorija pravde DžonaRolsa (Liberal Theory of Justice of John Rawls) defended at the Faculty of Law in Novi Sad, 2004.

104Sanja Đurđićpeoples. In that way, the principles of international justice derive from the originalposition according to Rawls.Rawls claims that the representatives of decent hierarchic peoples willadopt the same concept and principles of international justice just like therepresentatives of liberal peoples. In that way the concept of international justiceis achieved for a just political society of well-regulated peoples 4 .The principles of international justice which will be adopted byrepresentatives of well-regulated peoples in the original position, are determinedby Rawls in the following way:1) peoples are free and independent and their freedom and independenceshould be respected by other peoples;2) peoples should respect agreements and obligations;3) peoples are equal and they participate in agreements, which are obliging;4) peoples should respect the obligation of no intervention;5) peoples have the right to self-defense, but they do not have the right toincite to war out of other reasons than self-defense;6) peoples should respect human rights;7) peoples should stick to certain set limitations in leading a war;8) peoples have the duty to help other peoples who live under unfavorablecircumstances, which prevent them from having a just or decent political andsocial regime.Rawls thinks that the mentioned principles enable justice between peoples,i.e. international justice. He claims that the eight principles of internationaljustice have preponderance among any other principles. That is why he thinksthat the representatives of well-regulated peoples probably adopt, exactly theseeight principles of international justice. Rawls points out that, apart fromagreeing with eight principles of international justice, the representatives ofwell-regulated peoples will also set the principles for creating and establishingorganizations for cooperation as well as standards of objectiveness for trade andother institutions of cooperations. Guidelines will be also formulated for regulatingmutual help among peoples as foreseen with the last principle of internationaljustice.In that way, a complete concept of international justice and just politicalrelationships between peoples will be set. From Rawls’ point of view liberal anddecent hierarchic peoples would accept the same concept of international4Dž. Rols: Prava naroda, Beograd, 2001, 68.

Liberal Theory of Justice of John Rawls 105justice. The eight principles of international justice are therefore applied towell-regulated peoples who are considered free and equal, which means toliberal and decent hierarchic peoples. According to Rawls, the complete conceptof international justice would comprise reasonable political principles for allpolitically relevant subjects: for free and equal citizens and their governments;and for free and equal peoples. Apart from that, this concept would also includeguidelines for creating organizations for cooperation among peoples and forestablishing different duties and obligations. This complete concept of internationaljustice would, according to Rawls, have a ”universal range” because it regulatesthe most comprising political subject: a political society of peoples. The conceptof international justice was formulated by Rawls with the aim of finding solutions,which would enable a just international community.We can conclude that Rawls dedicated his life to searching for a model,which will make justice, just society and just international relationship possibleand approachable. In that way he built an integral liberal theory of justice, whichapart from justice for individual constitutional-democratic society and justicefor individuals, also comprises international justice.

6 Prof. Branko TucakovNovi Sad, SerbiaJEROME FRANK’S LEGAL REALISMAbstract: The work deals with legal realism of Jerome Frank, whosepsychological interpretation of the law was equaly intrigant when it appeared aswell as it is at the beginning of the third millenium. Since there are very fewtexts in our language concerning legal realism of Jerome Frank, our goal was topresent his athorship. Combining Frojd’s psychoanalysis with legal analysiscreating sceptical, reform oriented theory, which reduced to a minimum the roleof precedent in a legal system, where judges have all the freedom, Frank contendedthat certainty of law did not exist. According to him certainty of law is a myth,and source of that myth and belief in legal certainty he finds in child psychology.The key role in the making and application of law is in the hands of the judges,while everything depends mostly from their psychological characteristics.Forasmuch as analysis of individual factors which have influence on adjucationsshow how law really is functioning in the society, Frank is of opinion that therole of subjective and objective factors is more important than previouslyformulated normative solutions.Key words: legal realism, constructive scepticism, psychological interpetationof law, uncertainty of law, basic mythIntroductory RemarksDiscrepancy between theory and practice in American Legal Theory atthe end of twenties of the 20 th century attains its culmination. The necessity forlegal adjustment of state intervention and vindication of economic policy of NewDeal, bred the movement of legal realism. Although legal realism symboled a wideset of about twenty authors having various beliefs and theoretical postulates, itis possible to say that most followers of the movement, above all, rose against lawin books, and looked for solutions in what was really happening in the society,

Jerome Frank’s Legal Realism 107with following key topics: uncertainty of law, intercession for interdisciplinaryaccess to study of law, intercession for legal instrumentalism, apprehensionaccording to which law is an instrument for obtaining social goals and equilibrationof opposed social interests.Central topic of this work is legal realism of Jerome Frank 1 and hispsychological interpretation of law, as theoretician for whose work are mostoften related the basic postulates of legal realism movement, although on thecontrary there existed a sociological wing conducted by Karl Llewellyn.Emergence of Legal Realism MovementBy the term ”legal realism” as defined by Brian Leiter 2 , we mean ”theintelectual movement in the United States of America that emerged around agroup of professors and lawyers during the twenties and thirties of the 20thcentury, including Karl Llewellyn, Jerome Frank, Felix Cohen, Herman Oliphant,Walter Wheeler Cook, Underhill Moore, Hessel Yntema and Max Radin”. 31Jerome Frank, (10 September 1889 – 13 January 1957, New York) Graduated philosophyand law at Chicago University. Worked as a lawyer, judge, employee of the Roosveltadministration and teacher at University . He wrote six books and numerous other works.First and most significant work Law and the Modern Mind, first published in 1930, withmany reeditions, latest published in 1985. Then followed works: Save America First (1939),If Men were Angels. Some Aspects of Government in Democracy (1942), Fate and Freedom. APhilosophy for Free Americans (1945.), Courts on Trial, Myth and Reality in American Justice(1949.), he worked to the end, completing Not Guilty two days before he died, January 13,1957. Frank also published many papers like: ”Are Judges Human?”, University Of PennsylvaniaReview, 80, 1931, ”Why Not A Clinical Lawyer-School?”, 81 Un. of Pa. L.Rev. (1933.), ”WhatConstitutes a Good Legal Education”, 19 Am. Bar Ass’n J. (1933.), ”A Plea For Lawyer-Schools”,56 Yale L. J. (1947.), ”Words and Music: Some Remarks on Statutory Interpretation,” 47Colum. L. Rev. 1259, 1267 (1947.), ”Say It with Music”, 61 Harv. L. Rev. 921 (1948.), JeromeFrank, ”A Conflict with Oblivion: Some Observations on the Founders of Legal Pragmatism”,Rutgers Law Review 9 (1954.), and even one under name Anon Y. Mous, ”The Speech ofJudges: A Dissenting Opinion”, 20 Va. L. Rev. 625 (1943.).2Brian Leiter, professor at Faculty of Law, University of Texas, states this determinant oflegal realism in: Brian Leiter, Legal realism, in: A Companion to Philosophy of Law and LegalTheory, ed. Dennis Patterns, Oxford, 1996, 261 item3This number of ”realists” principally concurs with other authors, exception is Kevin Meckeywho made a list of over 40 followers of that movement. See: Kevin Meckey: Triumph ofLegal Realism MSC/DCL, 2004, 14 item, at site: http://www.law.msu.edu

108Branko TucakovAccording to Leiter, legal realism is ”the most important domestic jurisprudentmovement in the USA of the 20th century” 4 , which had an enormous impact,not only on the American legal educational system, but also on the reform oflaw and advocacy.Realism rose against, up to that time prevailing ”mechanical jurisprudence”,i.e. ”formalism”, which had a stronghold at Harvard, where Christofer Langdellfavored the concept that law is ”science” which should be studied in all laboratoriesi.e. libraries, legal cases from which, pulling out general legal principles, lawcould become better and more effectively integrated. Langdell’ s standpoint wasthat ”libraries are for us what laboratories are for chemists and physicists or whatmuseums are for naturalists”. No wonder that he spoke that ”what qualifies aperson to teach law is not a practice at attorneys office, not an experience acquiredin work with people, not an experience from adjucation or arguments fromlitigations, not experience, in short, of application of law, but the experienceacquired by studying law”. 5 Instead of formalist apprehension, according towhich judges make decisions on the basis of legal rules, there emerges themovement of realists with its central office at Columbia and Yale Universities,which favored a standpoint that from empirical observances, in a way courtsreally make adjucations, it ensues that they do not do that (primarily) strictlyapplying law, but on the basis of their feeling for justice, all on the basis ofpresented facts in a certain case. Although realists avoided to give a definitionof law, it is characteristic for them to look upon law as a set of appropriate socialfacts, under what they mean the appropriate human behaviour (of judges aboveall), depending on ideas and standpoints having influence on that behaviourand which motivate it. 6 Permanent topic of realists is uncertainty of law, that is4Leiter avoids to speak about Scandinavian realism, referring to it as a ”relative”, whichessentially differs from the American. He says that American realists were lawyers (includingfew scholars), and not philosophers, meaning that their field of interest was essentiallydifferent from that of Scandinavian colleagues. Common characteristics of two realisms, hefinds in the fact that all of them shared the same intellectual culture of positivism, in terms ofthat in natural sciences they saw a paradigm for whole scientific ascertainment, so they alsobelieved that social sciences, including law, would approximate methods of natural sciences.5Jerome Frank: Courts on Trial, Myth and Reality in American Justice, Princeton, NewJersey, 1973, item 225.6Almost all realists set from opinion formulated by Oliver Wendel Holmes in his text ”ThePath of the Law”: ”Prospecting of what courts will do, and nothing more pretencious, is whatI take for law.”

Jerome Frank’s Legal Realism 109why it is according to their opinion neccessary the explanation of judicial practiceto be sought behind the law itself. In that attempt two wings of realism weredistinguished – sociological 7 and idiosyncratic 8 . Followers of sociological wingbelieve that judicial adjucations, after all, fall under provident patterns, and thatdifferent social powers have influence on judges, as well as that they force themto look at the facts in a similar and predictable ways. Followers of idiosyncraticwing, first of all Jerome Frank, higlight that idiosyncratic facts about psychologyand character of that judge influence the judge’s adjucation. Consequently ”ifthe personality of judge is the pivotal factorin law administration, then law mayvary with the personality of the judge who happens to pass upon any givencase.” 9 For ”the peculiar traits, disposition, biases and habits of the particularjudge will, then, often determinate what he dicides to be the law”. 10Frank’s Concept of LawIn his works Frank exemplified reasons for avoiding to define law, andinstead of that spoke that law does not consists of regulations at all, but onlyof total sum of individual adjucations. Nevertheless, at the beginning of hisauthorship, in a book Law and the Modern Mind, he states: ”we may now venturea rough definition of law from the point of view of the average man: For anyparticular lay person, the law, with respect to any particular set of facts, is adecision of court with respect to those facts so far as that decision affects thatparticular person. Until a court has passed on those facts no law on that subjectis yet in existence. Prior to such a decision, the only law available is the opinionof lawyers as to the law relating to that person and to those facts. Such opinionis not actually law but only a guess as to what a court will decide. Law, then, as toany given situation is either (a) acual law, i.e., a past decision, as to that situation,or (b) probable law, i.e., a guess as to a future decision.” 11 Understanding a7The most typical members are: Llewellyn, Oliphant, Moore and Cohen8The most characteristic members of that wing is Jerome Frank9Jerome Frank: Law and the Modern Mind, Brentano’s Publishers, New York, 1930, 11110Ibid, 11111J. Frank: Law and the Modern Mind, Brentano’s Publishers, New York, 1930, 46. In hiswork Courts on Trial... (1949), Frank says he will avoid to use the work law, and that he will”instead talk (1) about what courts really do, (2) what courts should do, (3) if they do whatthey should be doing, and (4) if they should do what they should do”.

110Branko Tucakovmistake so early as the following year Frank disowns that definition in one ofthe texts 12 , and restores it later, this time speaking about statutory law, for whathe says it means ”either (1) what a court has already ordered in a past law-suitrelating to that specific man’s rights; or (2) – and this is the usual situation – whatsome court, somewhere, may order, some day in the future, in a specific law-suitrelating to that man’s specific rights.” 13Key role in the making of law is in the hands of the judge, who alludesto existing regulations and previous adjucations, but the ascertainment of thefacts is not an objective work, and he does it depending on his psychologicalcharacteristics. They unwillfully rule over him, and in that case no truth orjustice makes decisions but the characteristics of the judge. Having in mind thatwhen making adjucations the judge makes the law, legal regulations are in thatcase only the means, which equal with other means, for according to Frank’sopinion ”all legal rules, principles, precepts, concepts. standards, – all generalizedstatements of law – are fictions.” 14 . Taking into consideration that psychologicalcharacteristics (specificities, prejudices etc.) have greater influence on judgesthan general characteristics (similar general and legal education, experience,judicial tradition etc) to expression comes legal uncertainty, not only in general,but also at individual cases.Legal (un)CertaintyFrank grounds his theory on the fact that uncertainty is myth, in whichbelieve, even the lawyers and judges; that is why his work was directed towarddiscomfituring that basic myth, belief about legal uncertainty and legal certainty.Base of that myth Frank founds in child psychology and by analyzing the processof maturation, forming and socialization of personality, he gives an explanationhow it reflects to the attitude toward law. So it is neccessary, in order to understandthe reasons of various illusions grown-up persons have, to advert to developmentalphases of childhood. Adopted habit of obedience (to authority) in childhoodwill, basicly, determine a relation of man toward various aspects of power, toward12J. Frank, Are Judges Human?, University of Pensilvania Review, 80, 193113J. Frank, Courts on Trial, Myth and Reality in American Justice, Princeton, New Jersey,1973, 914J. Frank: Law and the Modern Mind, Brentano’s Publishers, New York, 1930, 167

Jerome Frank’s Legal Realism 111acceptance and fullfilment of orders, and form an attitude toward obeyance ofmoral and legal norms. Hence childhood is a period in which some of naturalbrakes and value structures are formed, what in future life makes a natural framefor obeyance of authority an law, customs considering necessity, forms thosefirsthand psychic relations which in future life force not only for obedience butfor behaviour in accordance with law. 15By growing, however it becomes aware that there exist unexpected andunpredictable phenomena which it cannot control and over which it cannotgovern, and then appears fear from obscure in dark, unseen, unvisible andunknown. Then he seeks for help from his parents who stand between it andmultiple dangers and unpredictabilities of life.Parents are almighty and knowledgeable. 16 ”If the child can no longerbelieve himself capable of controlling the universe, he can still believe that hisparents do so – and for him.” 17 They hold things under control, know everything,and understand, regulate things and offer protection, know what is good, andwhat is bad, and establish order where conditions seems chaotic. Child still hasalmightness, but now representative, in that role now are his parents, over whomit restores power. Although mother represents familiarity, tenderness, help andunderstanding to which a child can always return, Frank says, and alludes towritting of Malinovski, 18 that father is the one having a role of final arbiter,posessing strength and authority and who at times from the role of tender andprotective friend, transforms and accepts a position of stern judge and firmexecutor of law.By maturation a childconfronts with knowledge that the father is notalmighty and knowledgeable as he has appeared up to then, again there arisesfear and uncertainty, as well as the need for proximity of someone who could bea substitute for a father. In the role of a substitute there appear: prists, judges,leaders in a group... but they are not almighty, they dissapoint a child, while theneed for father authority remains. Inasmuch even by grown-ups there is anecessity for safety, in that role appears the law. Naive belief of the child in15Kartag-Odri A.: Stvaranje i primena prava – pravno psihološki aspekti, Stvaranje prava,Treći skup Jugoslovenskog udruženja za teoriju, filozofiju i sociologiju prava, Miločer, 24-25 September , 1999; Memoir edited by D. Mitrovcić, Beograd, 200016J. Frank: Law and the Modern Mind, Brentano’s Publishers, New York, 1930, 1317Ibid, 1418Ibid, 15

112Branko Tucakovalmightiness of the father to overcome chaos and dangers of the world, nowbecomesbelief, that arises in a myth, that it is achievable through legal system,through its authority, determiness and predictability. Nevertheless, according toFrank’s opinion this is not the only, neither the complete explanation of basicmyth about absoluteness, safety and predictability of the law, because there areother factors which have influence. People have not abandoned a childish need forauthoritative father, and the features once attributed to him, such as determiness,safety, certainty and impeccability, unconsciously try to find in law. Because,”society is made up of persons all of whom now are, or recently were, children.” 19That psychological need for safety is the most important factor of the concept oflaw, which is neither safe, nor determined, nor predictable, but we believe it tobe such, because of psychological need for determiness and safety, i.e., we expectthe law to be such. At the beginning a society was childish , because human mindwas unmatured, where magic prevailed.Now, instead of magic words advocated by primitive man, modern childishman calls for legal rules or some other uniformity which leads to uniformity injudicial rules. 20However, Frank says ”modern civilization demandes a mind free of father--governance. To remain father-governed un adult years is peduliarly the modernsin. The modern mind is a mind free of childish emotional drags, a mature mind.And law, if it is to meet the needs of modern civilization must adapt itself to themodern mind. It must cease to embody a philosophy opposed to change. It mustbecome avowedly pragmatic. Ro this end there must be developed a recognitionand elimination of the carry-over of the childish dread of, and respect for,paternal omnipotence; that dread and respect are powerful strongholds ofresistance to change. Until we become thoroughly cognizant of, and cease to becontrolled by, the image of the father hidden away in the authority of the law,we shall not reach that first step in the civilized administration of justice, therecognition that man is not made for the law, but that law is made by and formen.” 2119J. Frank: Law and the Modern Mind, Brentano’s Publishers, New York, 1930, 2020Aleksandar Molnar: Društvo i pravo. Istorija klasičnih sociološkopravnih teorija, I-II, NoviSad, 1994, Volume 1, 24821J. Frank: Law and the Modern Mind, Brentano’s Publishers, New York, 1930, 252

Jerome Frank’s Legal Realism 113Making of the LawAccording to Frank, law is made at court, that is it is made by judge . 22Traditional theory explored what judges do at higher courts , that is too narrowfor considering the problem, because they neglect what really is happening atother, lower courts, as well as the fact how the actual relation between parties ina process looks like. Besides, not only legal rules are those that decide on finaladjucation, but the judge, and that decision depends on his personality. 23Frank does not deny that, nevertheless, there exist legal norms and that they areone of the sources of law, but observes there are two ”legislatives” (legislativeand judicial), 24 while besides rules made and verified by parliament, court alsotakes part in making the law. Like the legislation by applying legal regulationsgoverns opposed interests, that is the way a judge behaves when making rulesmade by judge. 25 Legal norms, according to Frank, regardless of the fact if theyare comprised in laws, precedents, or other legal regulations, stay only emptywords, because content and life was given by court when solving litigation indispute. About legislation he spoke without sympathies: ”here, the judges felt, isa stable body of rules which create legal certainty. We, ourselves, seldom changeany of them, and then only after the most careful consideration. But, thelegislature makes new rules, frequently without adequate consideration, whichupset legal certainty. The legislatures do their work capriciously, superficially,on the basis of the limited subjective impressions of a few members of a legislativecomittee. Why should we greatly repect such shoddy products?” 26 Frank saysfor himself he is a reformist, he sees mistakes in which American judiciaryfalled into, but that he has no illusions regarding the fact that law proceedingscan be made perfect. 27 As he wrote during turbulent events in America, he waswitness of agony of judiciary, which found itself at stroke of social events and itsconservative judges (from High Court). All that influenced Frank in his postulateof law to see it as a battle, and in connection with that ”litigation is a kind of22Ibid, 12623See: Jes Bjarup: Rättsteori och rättordning, Stockholm, 2004, 16424J. Frank: Courts on Trial, Myth and Reality in American Justice, Princeton, New Jersey,1973, 26225Ibid, 26526J. Frank: Courts on Trial, Myth and Reality in American Justice, Princeton, New Jersey,1973, 29227Ibid, 2

114Branko Tucakovfight or battle”, that is being on at court in front of and under the control of thejudge. Going to court for decision is a civilisation wellfare, for it representssubstitute for private war. The winner from that battle gains legal rights, andsmitten legal duties. ”What ’rights’ and ’duties’ meant, in such circumstances,you can surmise by watching gangsters in conflict.” 28 That is how individualcharacteristics of judges come to expression, their sympathies or antipathiestoward witnesses, lawyers or parties in dispute, while ”his own past may havecreated plus or minus reactions to women, or blonde women, or men withbreards, or Southerners, or Italians, or Englishmen, or plumbers, or ministers, orcollege graduates, or Democrats.” 29 But, even a certain type of pronounciation,coughing or gestures, as well as any other type of behaviour, could by judgeinduce positive or negative rememberance in his consciousness, that can bedeterminant, when making decisions in a process. Frank explains that in afollowing way: ”Conventional theory” believes that ”Rule plus Facts = Decision”,while his attitude that ”Inducements having influence upon judges” plus”Character of the judge = Decision”. 30 From frojdisms, that had the largestinfluence on Frank’s theory, and according which the key of the character liesin buried depths of unconscious, ensues it is in vain giving judges normativeadvices, i.e., telling them they should do it other way. That is why the predictionod judge’s decision is mostly impossible. Wish of the lawyers and citizens tothink differently only images infantile wish for reliability and security andreturns to basic myth.Appliance of Law and Enlargement of Its UncertaintyLegal uncertainty comes to even larger expression when facts are beingestablished through a witness, because testimony of the witness is always underthe influence of his experience, personal characteristics and prejudices, and isoften selective. Testification becomes less reliable, even by most sincere witnesses,28J. Frank: Courts on Trial, Myth and Reality in American Justice, Princeton, New Jersey,1973, 829J. Frank: Law and the Modern Mind, Brentano’s Publishers, New York, 1930, 10630J. Frank: Are Judges Human? University of Pennsylvania Review, 80, 1931, 242

Jerome Frank’s Legal Realism 115with passing of time from the events for which facts are being established. 31Many witnesses feel unconveniently in that role at court, and under psychicalstress their testimony is not reliable. 32 Judge is as historian, while the event thatcame into court happened in the past and a judge ascertains facts post festum,during which there occur testimonies of witnesses between him and those events.Wintesses do not reproduce mechanically what they saw, heard or experienced,but they subjectively speak about the facts concerning the event. Hence, it isneccessary for the judges to know well not only the law, but psychology as well. 33While ”primitive man could say that legal rights were on the knees of thegods. We must say that they are on the knees of men – of the trial judges or thejuries.” 34 That is where we come to another myth of American judiciary -jury,its role in the individualisation of punishment and legal certainty. According toofficial or naive theory, says Frank, when a certain case is being discussed in frontof the judge and jury, roles are clearly defined, in a way that a judge applies law,while jury is left to validate facts and what the judge proclaims for law, must beaccepted by jury as totaly authoritative. 35But in practice it is shown that it is not the case, while after proofs areheard, the judge gives jury, ”instruction about the law”, explaining what legalconsequences are if jury decides for one or the other facts. In that way the jury ,deciding about facts, applies law. As a consequence it happens that on one sidedecisions are being made by average people, laymen for law, which have theirconcept, and on the other hand, they need not explain that decisions. Accordingto the theory favoured by realists, says Frank, in many cases, jury without payingattention to legal rules, sets down not ”facts”, but corresponding legal rights andduties of the parties in a process. 36 From that ensues that instead of judicial law,we have law made by jury, what leads to total unpredictability and uncertaintyof the outcome of adjucation and law in which jury takes part. 37 So decisions in31J. Frank: Courts on Trial, Myth and Reality in American Justice, Princeton, New Jersey,1973, 17 item32J. Frank: Law and the Modern Mind, Brentano’s Publishers, New York, 1930, item 20633Ibid, 14734J. Frank: Courts on Trial, Myth and Reality in American Justice,Princeton, New Jersey,1973, 5035J. Frank: Law and the Modern Mind, Brentano’s Publishers, New York, 1930, 17036J. Frank, Courts on Trial, Myth and Reality in American Justice, Princeton, New Jersey,1973, 11137J. Frank: Law and the Modern Mind, Brentano’s Publishers, New York, 1930, 173

116Branko Tucakovmany cases are instead of judges, being made by a dozen of uncompetent laymen,full of caprice and prejudices. 38Final ConsiderationsFrank and the American Legal Realism were at the stroke of criticism thatthey disregarded the ethical aspect of law and its relevance to morality. Frank inhis answer to criticisms, tried to insert natural-law elements in his theoryexplaining that by words ”I do not understand how any decent man today canrefuse to accept, as a corner-stone of modern civilisation, the basic principles ofNatural law, concerning human behaviour, as it is stated by Thomas Aquinas.” 39That attempt of insertion of natural-law elements in his theoreticalpostulate, was Frank’s defence of realism and his scepticism, from attacks thatfollowed, which were sharpest exactly from followers of natural-law standpointat chatolic universities.The most radical in that was Francis Lucey, 40 who, speaking at a meeting inMarch 1941 in Washington, identified Nazi philosophy with realism, utilitarismand pragmatism, and highlighted that ”Hitler’s utilitarism and pragmatism isvery alike Holmes’ philosophy”. 41 He believed that legal realism abolishes allvalues of democracy and by its scepticism can generate only confusion, splitting,fear and desperation, playground in each nation for demagogues, sofists anddictators. 42Frank did not have a firm empirical backing for his standpoint, (e.g.: onforeboding based decision-making and the role of personal element), 43 so it wasobjected by his colleagues, followers of so-called sociological wing of legalrealism, who highlighted that Frank’s assumptions were not reliable, acceptingpredictability of many things courts do. So Lewellyn, the most prominent38Ibid, 17739J. Frank, Law and Modern Mind, Garden City, New York: Anchor Books, 1963, p. xvii,cited: J. Bjarup: Rättsteori och rättordning, Stockholm, 2004, 16440Lucey was a member of management body at Faculty of Law in Georgetown and professorof philosophy and jurisprudence41See: George J. Marlin THE POLITICIAN’S GUIDE to Assisted Suicide, Cloning, and OtherCurrent Controversies, on site: http//www.ewtn.com/library/HUMANITY/PGUIDE.HTM42See: George J. Marlin THE POLITICIAN’S GUIDE to Assisted Suicide, Cloning, and OtherCurrent Controversies, on site: http:/www.ewtn.com/library/HUMANITY/PGUIDE.HTM43Brian Leiter: American Legal Realism, The University of Texas School of Law, Public Lawand Legal Theory Research Paper No. 042, October 2002, 19

Jerome Frank’s Legal Realism 117follower of realism besides Frank, did not miss the opportunity to make a criticalcomment, saying that in his aiming to unveil the illusion of legal certainty andpredictability, Frank made the illusion more illusive than it really was. 44Although Frank’s scepticism was not totally accorded to experience in practice,since, after all, most attorneys manage to advise their clients about probableoutcome of litigation, often Frank’s concept was taken for determiningstandpoints of the followers of realism movement. In order to understate thesignificance and role of Frank in American jurisprudence critics of realismcontrived a legend about the fact that acccording to his assumption ”judge’sdecision can depend on what the judge had for breakfast”. 45 Against realismreacted not only scholars in America, political opposers, jurists (professors) atchatolic univerisites, but also theoreticians in Europe. By criticising Frank’stheory, Gurvic says it is ”enough to say that no kind of individual psychology isgenerally, able to make a contact with problems of law as phenomenon which,in fact, is a collective experience and which is related to social whole.” 46 Upondeficiency of Frank’s theory, and standpoint about certainty of law as a myth,pointed out Norberto Bobio, highlighting ”that advocacy for the certainty oflaw is not new, but it is a new way in which the author explains his idea, new isthe extermism of Frank who considerations about certainty brings to absurdresults”. 47However, with his theory Jerome Frank not only opened paths towardstudy of real social relations, that are being established among court, witnesses,jury, attorneys, clients in litigation, judges, but also disenchanted the myth oftraditional theory, according to which judges are only executors of the law.Jerome Frank and legal realists with their belief in legal uncertainty, with theiradvocacy for an interdisciplinary approach during the study of what really ishappening when judge’s decisions are being made (to what extent subjectiveand objective factors influence the making of the law), by their belief in legalinstrumentalism, they opened doors to several theoretical tendencies.”Spirit of realism” made immeasurable impact in American legal theoryand political sciences of the 20 th century, since not only realists and their ideas44A. Molnar: Društvo i pravo. Istorija klasičnih sociološkopravnih teorija, I-II, Visio Mundi/Academic Press, Novi Sad, 1994, Book 1, 25145See: Legal realism, http://www.absoluteastronomy.com/encyclopedia/L/le/legal_realism.htm46Žorž Gurvič: Sociologija prava, CID, Podgorica, 1997, 16547See: Vukadinović G., Stepanov R.: Teorija prava I, (Theory of Law), Petrovaradin, 2001, 227

118Branko Tucakovwere popular, 48 but from realism there emerged many schools and movementsin American jurisprudence such as: critical legal studies, (movement of criticallegal studies, whose characteristic representatives are: Duncan Kennedy,Umberto Unger...), law and economics (law and economy, in the beginningknown as economic analysis of law, with Richard Posner and Richard Epstein asits main representatives), feminist legal theory, critical race studies, and they alsohad influence on political sciences.Getting off a norm from throne, negating the very normative nature oflaw, unclosing old myths, Frank made a new myth – myth about total irationalityof law, and raised a question about the very significance of norm as such. Since,”uncertainty, in short, according to realists, does not ensues from the rulesthemselves, but from the ways in which we characterize what legal rules andprecedents comprise.” 49 To what extent the real interpretation and appliance oflaw is essential, testifies Frank’s comparison of law with music, claiming that”legislation is like a composer. It cannot help itself. It must hand over theinterpretation to others, primarily to courts”. 50Therefore, in case we would like in short to give evaluation of Frank’swork it should be said that he combined Freud’s psychoanalysis with legalanalyses in order to create a sceptical, reform-oriented theory, that minimized arole of a precedent in a legal system, while he represented and supported thestandpoint judges should have all the freedom.48Famous is the statement: ”It’s a bona fide conviction that ”we are all [legal] realists now”49B. Leiter: American Legal Realism, The University of Texas School of Law, Public Law andLegal Theory Research paper No. 042, October 2002, 1950J. N. Frank, Words and Music: Some Remarks on Statutory Interpretation, 47 colum. L. Rev.1259, 1264 (1947.)

7 Prof. Miloš Marjanović, PhDFaculty of Law, Novi Sad, SerbiaROSCOE POUND’S SOCIOLOGICALJURISPRUDENCE FROM THE EUROPEANCONTINENTAL PERSPECTIVE(review of reception and criticism in Serbian)Abstract: Pound’s significance as a lawyer, his voluminous andmonumental work as well as the major role he played in American sociologicaljurisprudence had been amply complimented, mostly in superlatives: thegreatest American lawyer, the most interesting legal writer and one of theleading generalists on the whole, an encyclopedic monster of knowledge, thegreatest American sociologist of law, an undisputed leader or the synonymof sociological jurisprudence... Pound’s sociological jurisprudence representsan attempt of American legal thinking to keep pace with European sociolegaltheoretical tradition, but with a dominant influence of American pragmatismand the Chicago School of Sociology, trying to find practical, reformativesolutions for the transformational problems of the American society and law.To Pound sociological jurisprudence is more a skill or a technique of legaland social engineering, whereas philosophy of law and sociology of law are atheoretical and rational basis of critical analysis and empirical generalization.However, there are European studies involved in sociology of law whichdo not even mention Pound, or present scarce, imprecise or even wronginformation on him. There are plenty of critical observations, the mostsignificant of which are: the equation of sociology of law with sociologicaljurisprudence, narrowing of its subject of study to state law and practicaltasks, insufficient theoretical and sociological foundation of his points ofview, excessive legal normativization of social control, undeveloped keyconcepts of civilization, reason and ideas of paradigmatic rationalizing role

120Miloš Marjanovićof law in a society. The paper also indicates newer criticism, according towhich Pound’s influence grows weaker and loses importance, while thereputation of legal realism of Llewellyn rises.Key words: Gurvitch, Carbonnier, Molnar, Inđić, Stanković, Vukadinovićand Stepanov, Vračar, Vrban and Čokrevski on Pound.After The Introduction to the Theory of Law (Podgorica 1996), RoscoePound’s capital five-volume work Jurisprudence was translated into Serbian(Beograd – Podgorica 2000, vol. I-III). These translations, which are thepride of very few legal cultures in the world, have created the environmentfor a wider professional reception and a more thorough and systematiccritical analysis in the Serbian language. Before anything else, it would beuseful to summarize the criticism of Pound’s work in Serbian (prior tothe aforementioned translation of Jurisprudence) and partially in Croatian,Macedonian and Romanian, which is also the aim of this paper. This criticismalso includes the perspective of French sociology of law because Gurvitch’sSociology of Law and Carbonnier’s Sociologie juridique were translated inSerbian in 1997 and 1992 respectively.Roscoe Pound and Georges Gurvitch have treated each other withrespect and high esteem. Pound, however, is cheap on compliments whileGurvitch is more analytical. Namely, in the preface to the English edition ofGurvitch’s Sociology of Law (1953, second edition), Pound praises Gurvitchas a ”respectable representative of modern sociology” 1 and commends himfor ”criticizing sociological jurisprudence”. He also stresses Gurvitch’s trulygood analysis of the relationship between jurisprudence on the one handand philosophy and sociology of law on the other, which are, according toPound, the basis for criticism and specialized generalizations in jurisprudence.Gurvitch is also complimented for ”a meticulous review of work of thepredecessors and founders of sociology of law” (Paund 2000, I: 181), but wascriticized for equating law with the total social control (p. 155, 394–395).In his Sociology of Law (Gurvič 1997: 22, 31), the author says that Poundand Cardozo have criticized analytical jurisprudence in a ”brilliant and1All quotations in the paper have been translated from Serbian, including the Serbiantranslation of Gurvitch’s book from English (Sociology of Law, London, 1953).

Roscoe Pound’s Sociological Jurisprudence from the European... 121versatile way” and that Pound’s program study The Scope and Purpose ofSociological Jurisprudence (1912) was ”significant”. To him Roscoe Pound is”the greatest American sociologist of law” to whom Edward Ross dedicatedhis Principles of Sociology (1902), successfully developing Pound’s ideas andconstantly stressing his acceptance of Pound’s general principle of socialcontrol.Gurvitch chooses words to stress that ”sociology of law in the UnitedStates found its most elaborate, most detailed, most widely comprehendedand most delicate expression in the rich scientific work of Roscoe Pound” asan ”undisputed leader” of the so-called ”sociological jurisprudence”. Heconstantly confronts sociological (social control and interests), philosophical(pragmatism, values), historical-legal (types of legal systems) aspects andproblems of the work of American courts. These multiple interests and pointsof departure have enabled Pound to ”expand and explain with even moreintensity the wide perspectives of legal sociology and to gradually develop itsversatile aspects” (p. 151).It can be inferred from Gurvitch’s analysis that Pound’s notion ofsociological jurisprudence in his mature or monographic phase is quite afterhis taste and that it is actually in accordance with Gurvitch’s general theoryof sociological relativism or ”dialectic hyperempirism,” as he calls his point ofview. Pound has, Gurvitch says, reached ”deep analyses” in genetic sociologyof law, legal typology of global societies and discerning different levels ofdepth of social reality of law, which contributes to solving the problems ofsystemic sociology of law. He pointed to the sociological relativity of legaltechnique and legal categories and concepts in relation to types of globalsocieties and their cultural traditions as well as to current transformations oflaw, by which he improved genetic sociology of law, applied to the modernsociety. Those transformations lead to the socialization of modern law.Different interpretations of legal history are conditioned by specific situationsof particular types of global societies. Pound recognized four deep levels oflaw as a social phenomenon and stressed that for true studying of law it isessential not to reduce legal reality to abstract patterns and that this studyingmust go beyond symbols – to what they stand for (pp. 152–153).Gurvitch stresses the ”firmness” of Pound’s ”functionalistic, relativisticand idealistic-realistic orientation”, but resents the fact that he did not reach

122Miloš Marjanović”one quite accurate definition of goals and methods of sociology of law” (p.155). Even later he remains true to his initial equating of sociology of lawand jurisprudence as a legal skill or technique. He ascribes to sociology oflaw practical goals and makes it into a teleological discipline, failing to seethat its realistic judgments are independent of goals and predictions ofjurisprudence. Furthermore, even sociologically, law can be dealt with onlyteleologically, not deterministically, because legal phenomena are explainedin terms of purpose, not in terms of cause. In the same vein, he does notdifferentiate between philosophical reflection and sociological description,which causes a certain confusion in the relation of value judgments andrealistic assessments. This is further enhanced by the fact that, in discussingideal elements of law, he does not make a clear difference between legal andmoral values. More precisely, he shifts law and legislation towards a moralideal. This dogmatization and moralization jeopardize sociological methodsin law. The result of this teleological orientation is an understanding that thestate is necessarily and a priori more important than all other groups in thesociety so, in all civilized societies, legal order is equated with social order. Heneglects special groups (except when he talks about social interests), losingsight of the fact that each group has its own order, legal frame and legalvalues, whereas the state is just one special group with a special order. Becauseof this supremacy of state order, he fails to see problems of microsociologyof law and differential legal typology of individual groups, which Gurvitch,in his own understanding of social law, particularly insists on. Despite theseborderlines of relativism and functionalism, he concludes that RoscoePound’s sociology of law is ”delicate and rich” (pp. 155–157).Presenting the classics of sociology of law in the 20 th century, JeanCarbonnier (1992: 108) unjustifiably treats the school of sociologicaljurisprudence as a version of American (legal) realism, and just a few pageslater (p. 111) he examines realistic thought within the framework of theschool of sociological jurisprudence. He goes on to say that Roscoe Pound isconsidered the founder of this school and that he taught law at Harvard, butits most famous followers were Holmes, Cardozo and Brandeis, judges ofthe Supreme Court. The work of this school indicates the connection of lawwith other social phenomena. Its most original contribution – placing law insocial control as a more general sociological category – has never been accepted

Roscoe Pound’s Sociological Jurisprudence from the European... 123outside America because it is actually a mild version of social coercion. ForPound law is the main and most perfect instrument of social control, whichleads Carbonnier to conclude that a lawyer surfaces under a sociologist, inwhich he follows Gurvitch’s idea that Pound cannot fully be a sociologist inhis understanding of social control (pp. 109–111).In Carbonnier’s very concise analysis there are a few inaccuraciesand imprecisions. Although he himself realizes (p. 111) that ”sociologicaljurisprudence does not completely coincide with legal realism” and that thisrelationship is nuanced, he is still in favor of basically equating them, takingturns of choosing each direction as more general. Many other authors, someof which are mentioned and considered here, do not share his point of view.Gurvitch (p. 162) stresses that legal realism or neorealistic school is a sharpreaction to an extremely teleological and moralizing orientation of sociologicaljurisprudence. Duško Vrban (2006: 35) quotes W. Twilning, according towhom in the 1960’s there was a shift in the assessment of Pound and legalrealist Llewellyn, as pioneers of American legal thinking – the reputation ofthe former was completely overshadowed by the rising star of the latter.Similarly, in the literature analyzed in this paper, there is no attitudethat Holmes and Cardozo were Pound’s followers or students. Oliver WendellHolmes belongs to a preparatory phase of the development of sociology oflaw in the USA and he has, according to Aaronson, given the signal for the”sociological revolt in jurisprudence” (Gurvič 1997: 149). Holmes was thefirst to open new paths in American legal thinking and Pound was the firstwho put them into action, made use of them and taught them to others (Inđić1996: 34). Holmes had a founding role in the American stream of legalrealism and sociological jurisprudence (Molnar 1994: 234). Both Pound andlegal realists, as representatives of both sociological directions in Americanlegal thinking, appealed to Holmes, who insisted that lawyers should studysocial reality as it is done in other social sciences, that the life of law is inexperience and not in logic and that law is actually a prediction of what judgeswill do (Vrban 2006: 28–29). From the already mentioned Gurvitch’s work(pp. 157–162) one does not get the impression that Cardozo is Pound’s followeror student, but just one of the ”prominent representatives of sociologicaljurisprudence”. Aleksandar Molnar (1994: 242–243), on the other hand,classifies Cardozo as a legal realist. Finally, since Pound does not have one

124Miloš Marjanovićsingle key idea or theory which could be used to ”compare the rest of hisrich and primarily elaborate and inspiring work”, it is almost impossible totalk about a ”Pound” school of jurisprudence. The school of American legalrealism, which Pound was ”at war” with, transformed sociological jurisprudenceinto research work (Inđić 1996: 33).What follows is the review of the reception and criticism of sociologistsof law from Serbia, chronologically as they appeared.In his extremely critically oriented review, with the title which suggeststhe basic direction of analysis, ”Court Postulates of Civilization and ModernSociety: Roscoe Pound”, Aleksandar Molnar (1994: 234–242) primarily relieson English and American authors (Morrison, Reuschlein, Carpenter, Hunt,Cotterell (?) (Cotterrell), Lasswell, McDougal, Schur, E. Ross). Pound’ssociological jurisprudence is an attempt to keep up with European sociolegaltheory, trying to explain changes in the American society and law. It movesbetween the superseded analytical jurisprudence and increasingly influentiallegal realism, although Pound equates them to a large extent, Molnar claims.Relying on Bentham’s utilitarianism, Pound chooses moderate reformism,stressing the civilizing influence on the activity of judges. He is most acclaimedfor his program dichotomy ”law in books” and ”law in action”, or state(positive) and social law, but the theoretical implications have never beenclarified. ”Law in action” was replaced by ”jural postulates of civilization”and then by a classically understood natural law. Pound’s early programwork from the first decade of the 20 th century was based on new sociologicalideas and from that point of view individualistic philosophy and analyticaljurisprudence were criticized in American legal science. However, all thatcriticism remains general and the concepts used more and more speculative,a priori and indeterminate. The extremes of radical individualism aresurpassed by the socialization of law on feudal traditions of common law,which is where modern law takes the idea of cooperation that, along with freeindividual initiative, establishes the civilization. His sociological jurisprudenceat first programmatically opposes conservative lawyers who were onlyinterested in traditional legal justice, not in the attitudes of modern publicopinion on social justice. In time, Pound becomes increasingly more focusedon what characterizes professional law, which is, from European perspective,just one area of sociology of law. He also narrows down its subject by

Roscoe Pound’s Sociological Jurisprudence from the European... 125understanding it only as an applied, not theoretical discipline and because,from that perspective, it is interested only in influences and functions of lawin social life and not in influences of society to law, which is the reason whysocial nature of law is not seen in its totality.Molnar accepts Hunt’s criticism of Pound’s excessive inclinationtowards classifications, in which principium divisionis is often not clearlydetermined and which remains partial and theoretically unfounded. Usingthe example of typology of interest (individual, public and social), he showsthat it is not clear which social group determines the most important or ”themost difficult” interest of civilization which law should protect and helprealize. Under the influence of Kohler’s philosophy of law he takes over theconcept of civilization from the arsenal of new age enlightenment, determiningit as control over the interior and exterior nature with the aim to perfecthuman resources, but that determination remains generalized. Judicialpostulates of civilization, concretized in modern society, are not legal rulesbut professional ideas which should be realized through legal institutionsand regulations. They initiate the creation of judge-made law but withoutany deeper connection to a wider society. The correspondence betweenjudicial postulates of a civilized society and the needs of social reality is notexperiential, but a priori based. Courts are the primary driving force of theprogress of civilization and in this typically American affinity they glorifyjudicial justice and give little weight to legislative one.From his friend Edward Ross Pound takes over the concept of socialcontrol and normatizes it, but unlike him, he does not inquire after theundesirable effects of political social control because it is a priori sociallyfunctional and can be corrupted only in extreme cases (slavery, classexploitation, racial intolerance). He also does not even consider the thoughtthat repression can be closely knit with the progress of civilization. Socialengineering of law, as a technocratic term for improvement of control,improves the functionality of society. What is socially functional is thedecision of reason, but Pound does not clearly define this concept anywhere.Evolutionary postulate on continuous historical development of rationalityuntil perfection in a modern society is an axiom which is either accepted orrejected, while the theory of rationalizing social role of law is developedelsewhere, primarily in Germany.

126Miloš MarjanovićIn an extremely studious preface to the Montenegrin edition of Pound’sIntroduction to Philosophy of Law entitled ”Pound Pleading for the Philosophyof Law”, Trivo Inđić (1996: 7–34) has almost no critical observations. RoscoePound (1870–1964) is the ”greatest descendant” and the ”synonym” of theHarvard Law School, ”the greatest American lawyer and one of the leadinggeneralists on the whole”, a representative American lawyer who, due to thebreadth of his knowledge and his learnedness, was called ”the monster ofknowledge”, ”synthesis of all philosophies” and the lawyer who ”knowseverything.” In ex Yugoslavia Natko Katičić (1937) diverted everyone’sattention to Pound, saying that he was ”the most renowned of all livingAmerican writers and surely the most interesting of all legal writers on thewhole.” He is a prominent, capable and determined representative whomarks the beginning of the sociological stream in American jurisprudence.He acquired significant practical experience when in 1901 he became theyoungest member of the Nebraska Supreme Court Commission, which helpedclose many long overdue court cases. This is where he composed 103 courtopinions which marked his inaugural speech given when he was electedDean of Nebraska College of Law in 1903. He was one of the four bearers ofthe title University Professorship in the 300 year history of Harvard, whichgave him the right to teach any subject at any college of this university. Hewas invited to come to the Chicago University, where he stayed from 1907to 1910 and where he ”formulated the systematic criticism of American law,its traditionalism and inefficiency” connected to the philosophy of socialDarwinism of the 19 th century and preindustrial society. This criticism of”mechanical jurisprudence” or ”jurisprudence of concepts” turned him towardsreforms, which he was particularly persistent at, and directed him towardsphilosophy of law. There he speaks in favor of pragmatic, sociological science oflaw, so he becomes the synonym of sociological jurisprudence as a movementfor pragmatism in philosophy of law, for the adjustment of legal principlesand doctrines to the needs of people, who were central, while legal logic wasjust an instrument there.”Accomplishing such a wide and deep insight into law and variouslegal traditions, opening American jurisprudence to the latest legal schoolsof the European science, making rich legal practice as a lawyer, judge andresearcher... Pound was truly ready to start writing philosophy of law” (p. 25).

Roscoe Pound’s Sociological Jurisprudence from the European... 127Only a lawyer with such universal capabilities could speak of philosophy fromthe Anglo–American tradition of common law, but one should bear in mindthat he always relied on the universal tradition of legal thinking, thus openingAmerican thought to the ideas of European law.Roscoe Pound was, therefore, able to ”think philosophically and establishlaw as an instrument of social dynamics”, placing its functions and goal in awider social and historical context, offering ”theoretical justification forenormous social and economic legislation” in the 20 th century, thus makingsure that courts acknowledge the interdependence of law and social sciences.With a huge production of over a thousand published references and amonumental five-volume work Jurisprudence (1959) on over 4000 pages,he was the leader of American jurisprudence of the 20 th century. He alsorehabilitated philosophy of law and established a modern school of sociologicaljurisprudence in the USA. Therefore, even those who ”today diminishPound’s influence and prophetic voice in the science of law stand on hisshoulders” (p. 34).In volume 3 of Foundations of General Sociology of Law, which is aboutthe application of law, Jugoslav Stanković (2000: 140–154) has a chapterentitled ”Roscoe Pound – changing the society with law”, which indicatesthe focus of his reception. Pound’s understanding of law as an instrument ofsocial change or efficient tool of social dynamics was heavily stressed by TrivoInđić (1996: 26–29, 32) and Cotterrell (1984: 54–57) before him. Cotterrellalso points out the limit of effective legal action, while Stanković stresses thatRoscoe Pound is one of the most important representatives of sociologicaljurisprudence. He understands law as social engineering, not as a narrowlegal activity. That is why in legal theory, practice and education there shouldbe essential changes and reforms to turn law towards social sciences andaccomplishing justice as its practical goal. Stanković scrutinizes over Pound’scriticism of the dominant individualistic doctrine and his understanding ofthe development of law in five phases towards the basic goal that law shouldhave accomplished as a criterion. He also analyzes theory and classificationof interest as an explanation of legal phenomenon. An objective scientificanalysis seriously jeopardizes his subject-oriented theoretical attitude. Thebasic tasks of sociological jurisprudence is the most efficient applicationof law possible, which is the way to achieve important civilization values.

128Miloš MarjanovićAdditionally, he discusses the concept of civilization and its seven postulatesrelying on Molnar but interpreting differently two new or last postulates. Theseattempts enable efficient social control by the means of law, so Stankovićdeliberates social control and five limitations to the application of law. Heconcludes that Pound’s huge merit is introducing sociology into the Americanlegal science, but he adds that Pound’s study is incomplete because it doesnot encompass objective influences of social characteristics on law as well.In the textbook Theory of Law I (2001), in the chapter on legal sociology(pp. 97–122), Gordana Vukadinović and Radivoj Stepanov portray its foundersand representatives and discuss Oliver Wendell Holmes, Benjamin Cardozoand Roscoe Pound (pp. 117–118), who they consider to be one of the mostimportant American founders and representative of sociology of law. Thisbook reinterprets Molnar’s reception of Pound’s sociological jurisprudenceas American theory of law keeping pace with European sociolegal tradition.It also considers three elements of law and seven postulates of civilization,but it omits his critical observations.In the Introduction to Philosophy of Law (2004) in the chapter ”RoscoePound: American Legal Philosophy and Sociological Jurisprudence” (pp.64–76), the same authors significantly rely on Trivo Inđić’s preface, but alsothemselves analyze to a large extent some basic ideas from Pound’s Introductionto Philosophy of Law (1996) and from the first volume of his Jurisprudence(2000). They stress that Pound’s reputation is considerable both in legalscience and in legal thinking. Pound’s creative theoretical and practicalinvolvement is directed at the affirmation of philosophy of law andjurisprudence. His capital works are listed here, with original and translatedtitles, but without places and years of publication. To Pound philosophy is apowerful instrument of legal arsenal which totally explains social controland offers rational explanations for law. Vukadinović and Stepanov mentionbasic questions (chapters) of Pound’s Introduction to Philosophy of Law anddiscuss 12 concepts on the nature of law, which Pound analyzes in his book,including common elements in all of them. The authors stress that in hisresearch Pound emphasizes social philosophical schools and sociologicaljurisprudence and in that respect he significantly contributes to the Americansociology of legal system, which is briefly analyzed and referred to in volume Iof Pound’s Jurisprudence. The authors conclude that Roscoe Pound ”represents

Roscoe Pound’s Sociological Jurisprudence from the European... 129such a striking legal figure who was successful both in practice and in theory,sociology and philosophy of law. He was a devoted defender of law and justice,inspired legislator, original and creative legal thinker” (p. 76).Stevan Vračar, doyen of theory and philosophy of law, retired Professorof the Faculty of Law in Belgrade, wrote the afterword to the translation ofPound’s Jurisprudence entitled ”Pound’s Presentation of Jurisprudence”(2000: 339–358). He particularly stresses Pound’s understanding of threeelements of law (normative, technical and doctrinal), phases in the historicaldevelopment of law (primitive, strict, natural, mature, socialized and worldlaw), his explorations of the function of law, interests and social control.He also considers the history of legal thinking and discerns phases in thedevelopment of jurisprudence theories.Pound devotes the whole 6 th chapter to sociological jurisprudence,paying special attention to it and showing openly his orientation. From thevery beginning of his legal carrier Pound was aware of the great significanceof sociology as a new and growingly influential science, especially with regardto law. Quoting H. G. Reuschlein, Vračar points out that Pound is the founder,leader and prophetic herald of this orientation. He had particular inclinationsfor such a treatment of law, but such an orientation was also aided by thewhole environment of law, cultural atmosphere, etc. and primarily becauseof him, it became the most influential orientation in the USA. It was auspiciousfor stressing the significance of legal practice, so the administration andjudicature started being treated increasingly more as reflections of real life ofa social community.The author has attempted to systematically point out philosophicaland sociological aspects of Pound’s notion of jurisprudence, showing hispragmatism, rationalism, encyclopedism and a multiform perspective. Hestrives to become acquainted with and reform whole jurisprudence – legalscience, legal practice and legal education. He praises his power of observation,classification and description in the manner of natural scientists (e.g. botanists– before a legal carrier, Pound received a PhD in botany and achieved somedistinguished results in that field), inclination towards operationalization ofconcepts, but he also notices certain drawbacks in the systematics. Even thoughhis thought does not appear systematic, but fragmentary, it is consistent andcoherent, reasonable, founded, theoretically inconspicuous, but factographically

130Miloš Marjanovićargumented. Although it is implicitly noticed by other authors, Gurvitchespecially, Vračar explicitly discusses three phases in Pound’s work – youth,maturity and old age, or program, monograph and balance phases. He noticesthe difference between law in books and law in action and speaks in favor oflegal facticism. He avoids the discussion on the relationship between law andthe state, but, while arguing about Masonic jurisprudence, he turns the sciencetowards the secret sphere of social life. He concludes that Pound is an extraordinarypersonality with the most brilliant legal carrier in the USA and evenwider and adds that Pound was mainly involved in common law as the mostconvenient form of regulating social life and a basis for connecting positiveand natural law. He accuses Pound of giving neither preface nor conclusionto his Jurisprudence, but stresses that his life work is a colossal, praiseworthy,successful and impressive monument to himself but to jurisprudence as well.At the end of this paper I shall briefly deal with some papers in Romanian,Croatian and Macedonian, which do or do not consider Pound’s work andunderstanding of sociological jurisprudence. Romanian sociologist MihailCernea in his book American Sociology (1974) mentions sociology of law asone of 36 sections of the American Sociological Association. However, notonly does he not analyze American jurisprudence, in fact he does not mentionit at all. Neither does another Romanian sociologist, Achim Mihu, in a bookwhere it might be expected – Sociology of Law (1996), which comes as asurprise since one whole chapter of this book is dedicated to the founders ofjurisprudence (Weber, Gurvitch, Geiger, Treves) and another to social control.Pound is not mentioned in the name register by Eugen Pusić, Professor ofthe Faculty of Law in Zagreb in his book Social Regulation (1989), althoughin the chapter ”History and Development of Social Science” he discusses indetail Marx, Durkheim, Weber, Luhman and Habermas.However, another Croatian author, Duško Vrban, in his book Sociologyof Law (2006), devotes the whole third chapter to theory of law and sociologicaljurisprudence in America (pp. 28–37). After a very vivid review of social andcultural conditions in which these disciplines developed in the USA, basedon newer works in English, at the end of the chapter (pp. 34–37) the authorturns to Pound’s sociological orientation in legal thinking and says he wasits undisputed leader and that his reputation far surpasses the Americancultural circle. He thinks that Pound’s greatest merit is insisting on studying

Roscoe Pound’s Sociological Jurisprudence from the European... 131law in a social context. According to Vrban, Pound differentiates betweensociological jurisprudence as a special technique of the sociological approachto law and the sociology of law as a primarily theoretical discipline. Inevaluating Pound’s work Vrban mostly acquires the criticism of Alan Hunt,according to whom Pound’s work was a precondition for the sociologicalstudy of law, but his support of sociological jurisprudence did not result inan adequate theoretical basis. Vrban underlines that ”according to latercommentators, Pound’s contribution to theory and sociology of law is notparticularly important and his approach to sociological study of law remainsrough, i.e. in the scope of essayistic critical questioning” (p. 35). After a briefcomment on some of Pound’s bio–bibliographic data, ideas and categories(social engineering, interests, social control), the review ends with a shorterand slightly modified Hunt’s scheme of legal revolution from Pound’sJurisprudence.Macedonian author Tomislav Čokrevski in his Sociology of Law (2001)has a separate chapter where he discusses the development of sociology oflaw in different countries, primarily the USA (pp. 104–106). He claims thatin the USA, especially after 1950, empirical sociology of law developed to agreat extent while, according to American sociologists themselves, there wereno great achievements. While in the USA in the 19 th century analytic andhistorical jurisprudence dominated the scene, in the first half of the 20 th centurysociological jurisprudence, legal realism and philosophy of law developed. Ina short paragraph Čokrevski summarizes Pound, Ross, Holmes and Cardozo,but Pound has as much space as others put together.In conclusion it can be said that there are two opposite types of analysisof Pound’s work and his sociological jurisprudence. Gurvitch’s and Inđić’sanalyses are particularly affirmative, studious, layered and nuanced; Inđić’sanalysis has almost no critical observation, while Gurvitch’s does. On theother side there is Molnar’s nuanced and differentiated, but expressly criticalanalysis which contains almost no affirmative elements. Vračar’s afterwordis closer to Gurvitch’s analysis, while the reviews of Stanković as well asVukadinović and Stepanov are closer to the analysis of Inđić’s type. Vrban’sreview is closer to the analysis of Molnar, but it also contains some affirmativeand many descriptive or analytically ”neutral” elements, which is alsocharacteristic of Stanković as well as Vukadinović and Stepanov. Čokrevski’s

132Miloš Marjanovićreview is concise and almost devoid of evaluation, while Carbonnier’s noteis short, with main contributions and critical observations, but also withsome imprecisions and even inaccuracies.LITERATURECernea M. (1974), Sociologia americană, Bucureşti. (American Sociology).Cotterrell R. (1984), The Sociology of Law, London.Чокревски Т. (2001), Социологија на правото, Скопје. (Čokrevski T. (2001),Sociology of Law, Skopje).Gurvič Ž. (1997), Sociologija prava, Podgorica. (Gurvitch G. Sociology of Law).Inđić T. (1996), ”Paundovo zauzimanje za filozofiju prava”, predgovor za:R. Paund. Uvod u filozofiju prava, Podgorica. (”Pound’s Pleading forthe Philosophy of Law”, Preface for: R. Pound, An Introduction to thePhilosophy of Law).Karbonije Ž. (1992), Pravna sociologija, Novi Sad – Titograd. (CarbonnierG., Legal Sociology).Mihu A. (1996), Sociologia dreptului, Cluj – Napoca. (Sociology of Law).Molnar A. (1994), Društvo i pravo, Novi Sad. (Society and Law).Paund R. (1996), Uvod u filozofiju prava, Podgorica. (An Introduction to thePhilosophy of Law).Паунд Р. (2000), Јуриспруденција, књ. I–III, Београд - Подгорица. (PoundR.(2000), Jurisprudence, Vol. I–III, Podgorica - Beograd).Pusić E. (1989), Društvena regulacija, Zagreb. (Social Regulation).Stanković J. (2000), Osnovi opšte sociologije prava – III deo: Primena prava,predmet sociologije prava, Beograd. (The Basis of General Sociology of Law,Part III, The Enforcement of Law. The Subject of the Sociology of Law).Vračar S. (2000), ”Paundova prezentacija jurisprudencije”, pogovor za: R.Paund, Jurisprudencija III, Beograd – Podgorica. (”Pound’s Presentationof the Jurisprudence”, Afterword for: R. Pound, Jurisprudence III).Vrban D. (2006), Sociologija prava, Zagreb (Sociology of Law).Vukadinović G. – Stepanov R. (2001), Teorija prava I, Petrovaradin. (Theoryof Law I).Vukadinović G. – Stepanov R. (2004), Uvod u filozofiju prava, Novi Sad. (AnIntroduction to the Philosophy of Law).

IIIThe Morality of Law1 Prof. Dragan M. Mitrović, PhDFaculty of Law, Belgrade, SerbiaLon Fuller’s Legal Philosophy on the Morality of Lawin View of His Opponents and Advocates2 Marko Božić, AssistantFaculty of Law, Novi Sad, SerbiaJohn Finnis, the Heir of the Aquinian Natural Law Tradition3 Marko Trajković, LL.M, AssistantFaculty of Law, Niš, SerbiaRichard A. Posner: The Problematics of Moral and Legal Theory4 Prof. Danijela GrujićNovi Sad, SerbiaFor the Love of One’s Country and the World

Lon Fuller’s Legal Philosophy on the Morality of Law in View... 1351 Prof. Dragan M. Mitrović, PhDFaculty od Law, Belgrade, SerbiaLON FULLER’S LEGAL PHILOSOPHYON THE MORALITY OF LAW IN VIEWOF HIS OPPONENTS AND ADVOCATESAbstract: Lon Fuller developed his procedural natural law philosophy inan effort to overcome the breach between positivism and iusnaturalism. Hisefforts have been seen in different lights. However, it does not mean that Fuller’scontribution to legal theory is in any way modest, as certain jurists of todaywould like to think. It is even less possible to claim that each discussion on theform of law is completely devoid of moral judgement. And that more thansuffices for Fuller’s contribution to legal philosophy and theory to fare muchbetter when it comes to overall assessment.What still attracts much attraction today in Fuller’s teachings is that itoffers a choice to mankind! And although law is the prerequisite of good law,legal rules themselves are not sufficient. The morality is needed, since it makeslaw possible.Key words: Lon Fuller, Law, Natural law, Moral, Morality.ILon L. Fuller (1902-1978) ranks among the very few of those great menwhose teachings, perhaps now even more than during his life, have attracted theattention of legal philosophers in the world. At the time when philosophy oflegal positivism on the separation of the law from morality was at its height,Fuller’s original procedural natural law theory appeared in a secularised form,the theory whose distinctive and profound reasons were hailed even in thosejurisprudence communities where it led to extremely fierce differences andarguments. Surprisingly, it went to a large degree unnoticed by those theoreticianswho were especially interested in procedures and institutional order of the society,

136Dragan M. Mitrovićand that is precisely what represents a firm ground for the correct understandingof Fuller’s rich and subtle thought, expressed in the form of his original proceduralnatural law theory.His main ideas Fuller published in 1964 in his book ”The Morality ofLaw”, his most probably best known work, which has seen several publicationsto date, including this most recent one in Serbian.The book is based on the lectures held by Fuller in April 1963 at Yale LawSchool. At the end of the book was published the addendum entitled ”TheProblem of the Grudge Informer”, obviously inspired by still active and existingexperience of national-socialist, fascist and Stalinist dictatorships. The writingwas originally intended as the basis for discussion at the jurisprudence course,but it was also used as a form of introduction into the problems of jurisprudenceat the courses attended at that time by all first-year students at Harvard LawSchool. However, despite having such a purpose, it has not lost any of its valueto date. To the contrary. This is actually a brief masterpiece, quite clearlyshowing how the exercising of human thought creates a reliable barrier to everytotalitarian pattern. Anyhow, all totalitarianism actually finds its firmest groundin the laziness and decrepitude of human spirit, which then easily submits tothe leadership of self-proclaimed messiahs. It is indeed a pity that all theparticipants of the October 5 th change of government in Serbia in 2000 were notfamiliar with this addendum, which would have certainly served to make theirthoughts sharper, and the decision making process concerning matters of stateeasier, and to strengthen their confidence as regards their responsibility for thefuture of the people they represented.The very circumstances shedding a different, more rational light on theemergence of this Fuller’s work are of interest. Among them a special place isheld by the exhausting discussion of Fuller and Herbert Hart, the best knownAmerican student of Hans Kelsen, and probably the harshest Fuller’s critic.The immediate cause was Hart’s discussion with an American philosopherBodenheimer, who was critical about Hart’s work ”Definition and Theory inJurisprudence”, published in 1952. The discussion between Hart and Bodenheimerwas later on joined by Fuller himself, amid other renowned jurists (Pound,Dworkin, D’Entrieves, Raz, Ross), even before his new book, ”The Morality ofLaw”, came out. It is no wonder that Fuller, after the book had been published,dedicated one part to stating objections to the existing positions on law.Sensibly criticising legal positivism, Fuller especially emphasized verbaland formal nature of the assertions on law and the inability of positivism to

Lon Fuller’s Legal Philosophy on the Morality of Law in View... 137treat the content of law. Not only that positivism is unable to distinguish ”law”from ”good law”, claims Fuller, it is similarly incapable of determining anyreliable or final measure for law as a phenomenon in the experiential world.Furthermore, even common sense itself tells us that in the world of law, as well asin the world of facts, ”what is” and ”what ought to be” are inseparably intertwined.At that time Fuller particularly focused on Hart’s notion of law. Thediscussion, now between Hart and Fuller, was especially galvanized by Fuller’sassertion that Hart’s objections concerning his term, internal morality of law,especially the ones Hart made with regard to his teachings on the rule ofrecognition – ”missed the point”. On the other hand, Hart claimed that Fuller’sprinciples of internal morality of law are not moral in nature, but that they arethe principles of quality independent from substantive aims of law. That is why,Hart stressed, Fuller with his principles of internal morality of law could notentirely dispose of legal positivism, against which he so fervently spoke in hisphilosophy. It is of interest that Artur Kaufman holds an opinion similar toHart’s. According to him, Fuller’s teachings belong to the so-called ”empiricalpositivism”, although such an assessment of Fuller’s scientific work fails to havethe right shade of truth. In every major legal encyclopaedia or encyclopaedia ofphilosophers of law, Fuller’s work is classified as belonging to the so called”procedural natural law”, and not legal positivism.His main ides and assertions Fuller amended already in the secondedition of his book (1969), adding to the already existing text a separate chapter,Chapter Five, entitled ”Reply to Critics”. This was no accident, since theappearance of the first edition of ”The Morality of Law” in 1964, containing thecentral idea of close or even indissoluble link between the law and morals, hadthe same effect on the advocates of legal positivism as waving a red flag in abullfight. Moreover, the book almost immediately provoked an avalanche ofcriticisms which almost crushed Fuller. That Fuller still stood his groundagainst the force of attacks coming from all sides is shown by that very ChapterFive in the next, second edition of his book, which is present, albeit slightlyamended, in all later editions. There Fuller rationally responded to the scientificobjections of his critics. As a result, many of Fuller’s fierce critics revised theirpositions on his theory. Especially effective was the example of a fierce critic ofFuller’s, Robert S. Summers, who converted his original criticism into a defenceof Fuller’s theory. Moreover, Summers devoted one of his works entirely to LonFuller, even naming the work after him: ”Lon L. Fuller” (1984). Herbert Hart, ofcourse, never did anything in that vein.

138Dragan M. MitrovićThis is not the only Fuller’s book to have had several editions. Let usremember other Fuller’s books, also with several editions, both during his lifeand posthumously, as is the case with ”Legal Fictions” (1970), ”Anatomy of theLaw” (1976), ”The Principles of Social Order: Selected Essays” (1982), ”Law inQuest of Itself” (1966 and 1987), or with ”Basic Contract Law” (AmericanCasebook Series, 1996). However, those works were mostly published at the timewhen Fuller had already attracted the attention of international jurisprudenceand science owing to his unquestionably most challenging book, ”The Moralityof Law”.That this is indeed an exceptional book is highlighted by more than fiftycriticisms, mostly brief papers by Andrews, Bartholomew, Burns, Wroblevski,Woosley, Dias, Hart, Meyer, Perelman, Ross, Summers,Tucker, Schwartz (let us mention only several of the renowned names),where Fuller was more attacked than defended, and which had already beenwritten by 1967. However, after his death, the original harsh criticisms wereeither made blander or altogether abandoned for what is actually Fuller’spredominant idea and lasting contribution to the philosophy and science of thelaw: that the law may not be entirely amoral or perverted, but that it mustcontain at least a minimum of morality.In the scientific atmosphere thus changed there appeared works whereFuller’s contribution was altogether differently assessed. In addition to thealready mentioned Robert Summers, other authors acted similarly, as is the casewith Charles Covell: ”The Defence of Natural Law: A Study of the Ideas of Lawand Justice in the Writings of Lon L. Fuller, Michael Oakeshot, F. A. Hayek,Ronald Dworkin” (2000), or with Barry Macleod-Cullinane: ”Lon L. Fuller andthe Enterprise of Law” (Legal Notes, No. 22, London, 2000).Those are but a few impressive examples. However, such examples areplentiful, as is the case in what used to be Yugoslav, and now Serbian legal science,where Fuller’s contribution has for a long time been not only well known butalso highly appreciated. Nevertheless, if the changing of the world changes alsoour scientific image of the world, then such a change by all means only contributedto the increase in the interest for the scientific work of Lon Fuller. Be as it may, itis certain that nowadays there are several thousand citations of Fuller’s scientificwork, while their number in electronic publications on the Internet cannot beassessed with any reliability.

Lon Fuller’s Legal Philosophy on the Morality of Law in View... 139IIIn his legal teaching, where most important place is held by the so called”internal morality of law”, Fuller at the same time endeavours to remove or atleast to overcome the weaknesses of legal positivism and natural law theory. Tosuch intention is suited also the definition of law, according to which the lawis the ”enterprise of subjecting human conduct to the governance of rules”.However, those are not just any legal rules, but only those that possess internaland external morality. Otherwise, it is the issue of perverted law.On that basis Fuller expresses his teachings on morality, which areindispensable for the understanding of teachings on the morality of law. In short,Fuller distinguishes two kinds of morality: ”the morality of duty” and ”themorality of aspirations”. The morality of aspirations comes from the heights ofhuman achievements, and the morality of duty from the base. However, internalmorality of law spreads onto the field of the morality of duty, as well as on thefield of the morality of aspirations. The duties consist of prohibitions, whileinternal morality calls also for positive demands and actions suited to them. Andwhile it is relatively simple to determine when duties have been violated (forinstance, when a retroactive law has been passed, or when a law has not beenpromulgated), it is not the case with the positive desiderata or requirements (forinstance, where it should be determined whether the law passed is clear andunderstandable to a sufficient extent).Having defined the notion of law as a purposive activity resulting in alegal system, Fuller lists eight necessary requirements (conditions, principles,elements) upon which the existence and realization of lawfulness depend ineach legal system. They are: generality, promulgation, prospectivity, clarity,compatibility, possibility, constancy of legal rules and congruence among therules declared and administered. To the set of these eight desiderata Fuller givesthe name of ”internal morality of law”, which also contains morality that makeslaw at all possible. However, when discussing the object of lawgiver’s work, thanit is the case of the so called ”external morality of law”.Between internal and external morality a conflict may arise. However, aconflict may also arise within the internal morality of law itself. Fuller stressesthe possibility of such an occurrence whether because the need for constancy ofthe law comes into conflict with frequent modifications, or due to the changes inactual circumstances or human beliefs, or even due to the strict adherence to theeight requirements of internal morality of law, since simply meeting them still

140Dragan M. Mitrovićdoes not suffice for the positive law to become or remain correct (good, suitable),as it is extremely difficult to draw a clear line between the use and abuse of law.The mentioned requirements, at the same time also the measures ofinternal morality of law, are primarily of process, i.e., procedural character.They fail to impart anything reliable on the important aims of law, since theyare neutral with regard to a larger set of ethical questions. However, internalmorality may not be neutral when it comes to the very comprehension of man.That is why the abandoning of internal morality of law, stresses Fuller, iscontrary to the dignity that makes man a being of freedom.Human dignity, however, is not the only aim to be reached by the internalmorality of law. They are also justice, as well as human nature itself, capable ofcomprehending justice. That is why Fuller in his book especially deals with therelation between inner morality and natural law, calling the results of his teachingsa particular type of natural law. For him natural law constitutes a set ofrequirements of practical sense that govern life in human community. Thosenatural law requirements, moreover, precede every morality and call for theexistence of the basic good, without which no human life can be envisaged.Similarly, Fuller makes a distinction between procedural natural law andsubstantive (substantial, material) natural law, considering the internal moralityof law to be a ”procedural version of natural law”. At that time he deliberatelyuses the term ”procedural”, attributing to it a particular and extensive meaning,which contains also the essential ”congruence between official activity and apromulgated law”.Fuller’s wish is to overcome, through his teachings, the breach betweenthe formal and substantive contents of law, which is present both in positivismand in natural law doctrine as well. While many positivists believe that even theworst law is valid provided it is formally correct, the advocates of natural lawclaim the opposite: that no formally and correctly promulgated law is actuallycorrect, until it becomes morally good as well. In an effort to overcome theexisting gap, Fuller underscores that substantive content of law should bediscussed only within the framework of its external morality. However, the formand content of law are not separate but related, as ”is” and ”ought to be” areinseparably related in law and life. That is why Fuller particularly insists on thediscussion of the morality of law, despite the fact that it can be said that eachform of law is moral since the requirements of internal morality have beenobserved. Only then, believes Fuller, after these requirements have been met, or

Lon Fuller’s Legal Philosophy on the Morality of Law in View... 141when they have at least been discussed, the necessary relation between the lawand morality has been established.Owing to Fuller’s productive ideas, law has once again gained a moralidea unjustifiably exiled from it, and thus we can distinguish between ”any”legal order and the ”correct”, and thus ”good” legal order. Law meeting therequirements of justice and morality, or at least man’s idea of what it ought tobe, constitutes the correct order. In other words, without respecting the minimumrequirements of internal morality of law, no law can be established in the formof a correct order. For a correct order, however, that requirement is only anecessary, but not a sufficient requirement. Along these lines Fuller modernizedlegal theory, law and society.IIILon Fuller developed his procedural natural law teachings in an effort toovercome the breach between positivism and iusnaturalism. His endeavourshave been viewed in different lights. However, this does not mean that Fuller’scontribution to jurisprudence is modest, as certain jurists would wish us tobelieve, even in the present day. Still more absurd would be the claim that eachdiscussion on the form of law is completely devoid of moral judgement. Andthat should quite suffice for the overall evaluation of Fuller’s contribution tolegal philosophy and theory to be painted in a much better light.What still attracts much attraction in our day about Fuller’s teachings isthat it offers a choice to mankind!Fuller brings law in the closest possible relation with the market, which isnot so often emphasised when his work is discussed. Moreover, he believes thatlaw is moral only when related to the market order. That is why throughout ”TheMorality of Law” the spirit of endeavour and enterprise is constantly present,and because of that his concept of law constitutes a giant panel of creation andconstant rediscovery of law. Only thus can we understand Fuller’s healthyscepticism about the enterprises of the lawgivers, as well as his placing emphasison spontaneous creation of law, primarily through customs and legal precedents,since he sees the way for improving law to be through developing humancommunication, rather than through the lawgivers. That is why only in thisdynamic and procedural way we can understand his justified concern for themore and more present crisis of public law in the West, which is even today

142Dragan M. Mitrovićcharacterized by high crime rates and growing expenditures of the countriesattempting to fight that evil. However, only in that way his justified concern forthe consequences already foreseen in his times can be understood, the breakdownof the regimes in the countries of Central and Eastern Europe, the breakdownthat is today quite evident, with the focal problem being the perverted law.Fuller stresses that such parallel processes in the West and East make normalaccomplishment of morality in general as a predominant legal concept difficultor even impossible.When answering the question which society is best, Fuller stresses that itis the society of economic entrepreneurs in the broadest sense, and, like F. A.Hayek, establishes a connection between the rule of law and the market order.With this idea, of re-establishing the need for free human communication –without which law, and order based on the law, may not be realized, thusendangering the very survival of mankind – Fuller in a way completes the veryessence of his legal thought.Although law is the prerequisite of good law, legal rules themselves arenot sufficient. The morality is needed, since it makes law possible.

2 Marko Božić, AssistantFaculty of Law, Novi Sad, SerbiaJOHN FINNIS, THE HEIR OF THE AQUINIANNATURAL LAW TRADITIONAbstract: The paper is an attempt to establish the extent to which the neo-Aquinian natural law theory of a contemporary Anglo-American author JohnFinnis inherits the ideas of Thomas Aquinas. Our aim is to discover where, howand to what extent John Finnis inherits the philosophical thought of ThomasAquinas. In that respect our analysis is focused on the basic terms of Finnis’philosophical and legal construction, which is observed from the viewpoint ofthe neo-Aquinian nature.Key words: natural law, neo-Aquinianism, law, ethics, basic good, practicalreasonableness, common goodIntroductory RemarksTrends in the contemporary theory and philosophy of law are, amongothers, marked by a revived interest in religion as well as attempts to approachlaw with a stronghold in theology. Within these tendencies a neo-Aquinian theoryof law has arisen as a bold attempt to base the explanations of the phenomenonof law on the learnings of Thomas Aquinas. Modern neo-Aquinianism, basedon the system of thinking from the 13 th century, represents an ”exotic endeavor”in the contemporary philosophy of law and speaks in favor of current relevanceof the learning of Thomas Aquinas, even on the threshold of the 21 st century 1 .1This revival of interest in Aquinas and his system of thinking, primarily among Catholicintellectuals, was increased after 1879 and the papal encyclical Aeterni Patris, where LeoXIII declared the great scholastic the greatest among all scholastics. Since then there has beena development of different, even diametrically opposite doctrines, all of which have beencreated on the foundations of Aquinas’ learning, and whose only common denominator isthe name of their medieval paragon.

144Marko BožićAmong a number of neo-Aquinian authors the name of a contemporaryauthor, John Finnis, stands out. Although he was born in Britain, Finnis hasbuilt his career outside its borders as well, but always within the countries of theAnglo-Saxon legal tradition: he graduated from the faculty of law in Australia,he received his PhD degree at Oxford and he has taught worldwide as a visitingprofessor, especially in the USA 2 . His name is connected with a bibliographydominated by topics from general law, philosophy and theory of law, but alsoby articles from the fields of international, criminal and constitutional legalscience 3 .Serbian theory of law has paid some attention to Finnis by observing hisworks in general. For that reason we have the task to analyze a particularlyimportant aspect of his philosophy: the connection it establishes with its scholasticmodel, i.e. Aquinian philosophy of law.The aim of this paper is, therefore, to ascertain where, how and to whatextent John Finnis follows the philosophical thought of Thomas Aquinas. Dueto limitations imposed by space, we shall only define to what degree the basicconcepts of ethics and theory of law of John Finnis correspond to complementaryconcepts of Aquinas’ thought. Our task is to use a comparative analysis of theoriginal Aquinian learning and basic Finnis’ ideas in order to stress the similaritiesand differences between the two authors, i.e. to determine to what extent thetwo thoughts correspond in the heritage of the same jusnaturalist tradition.Regarding methodology, our comparative approach relies on Aquinas’Summa Theologica and The State on the one hand and Finnis’ two capitalpublications: his most famous work Natural Law and Natural Rights, which hasrecently been translated into Serbian as Prirodno pravo (Natural Law), and avery valuable monograph Aquinas: Moral, Political and Legal Theory, which hasstill not been translated and is not available to a wider scientific community.2Although he primarily built his academic career at Oxford, where he teaches today, Finnishas been a visiting professor several times at many universities all around the world, especiallyin the USA. In the same capacity he has taught at law schools in Boston and Berkeley,California. Today he works at the Notre Dame Law School in Washington, which ”shares”him with British Oxford.3Finnis’ bibliography is impressive and consists of a large number of articles, some writtenwith a co–author, books and textbooks. His most important works are: Natural Law andNatural Rights (1991), Aquinas: Moral, Political and Legal Theory (1998), Fundamentals ofEthics (1983), Moral Absolutes: Tradition, Revision and Truth (1991).

John Finnis, the Heir of the Aquinian Natural Law Tradition 1451 Tomas Aquinas and Finnis’ Substantive JusnaturalismUndoubtedly, John Finnis can be described primarily as one of thecontemporary authors who have dedicated their work to reviving the idea ofnatural law. In addition, it should be stressed that the character of Finnis’jusnaturalism is to a large extent the consequence of his confession. Namely,John Finnis is one of the most important Catholic thinkers, who draws hisinspiration directly from the works of the classics of natural law.This is why we think that a proper understanding of his works should beimmediately preceded by establishing to what degree he follows the viewpointsof antique, medieval and scholastic authorities, the vanguard of which is ThomasAquinas. We are therefore focusing our attention on the question: what is theessence of Finnis’ natural law, i.e. what is the connection between his andAquinas’ jusnaturalism?Finnis’ natural law theory is based on two central terms – the concepts ofbasic good and practical reasonableness. Consequently, to explain Finnis andhis jusnaturalist concept would be to explain the place and role of these twoterms, simultaneously having in mind their special relationship.1.1 Basic GoodJohn Finnis’ natural law theory begins with the concept of basic good.Basic goods are fundamental human values, things that make life worth living.They represent the foundations of human existence and, according to Finnis,there are seven of them: human life, knowledge, play, esthetic appreciation,friendship, practical reasonableness and religion 4 . These seven basic goods are4It is important to stress the difference between basic goods, which are listed by ThomasAquinas, and a set of seven basic goods which are recognized by Finnis. Namely, ThomasAquinas in Summa Theologica gives a general definition of the concept of basic good, whichhe defines as the value man spontaneously strives for in his own nature, and continues toexplain that life and knowledge are examples of such basic goods, without trying to list them.On the other hand, Finnis, who accepts the Aquinian thesis of basic goods, feels the need tomake a complete list of them. Aware that the seven basic goods he lists are surely not anexhaustive list of values man searches for, he continues to confess that the list can neverbe concluded and that forms of human goods are many. Thus, although he claims that othergoods represent only roads to the basic seven goods, Finnis questions the necessity of anyenumeration.

146Marko Božićnatural inclinations of a human being, values one spontaneously strives forrecognizing in them aspects of one’s own well-being.Finnis essentially acquires the concept and determination of basic goodfrom Thomas Aquinas, who says in his Summa Theologica: ”All those things towhich man has a natural inclination, are naturally apprehended by reason asbeing good, and consequently as objects of pursuit, and their contraries as evil,and objects of avoidance. Wherefore according to the order of natural inclinations,is the order of the precepts of the natural law.” 5 Aquinas consequently says thatman recognizes basic goods spontaneously, as natural inclinations of his rationalbeing, i.e. as objective and universal values. This is where Finnis really followsAquinas’ ideas 6 and for the same reason both Aquinas and Finnis considerbasic goods unquestionable and self-evident 7 .Actually, both to Aquinas and to Finnis reaching basic goods would be tosubstantialize the meaning of one’s own existence, i.e. to actualize oneself as ahuman being. Finnis says that ”basic forms of good are opportunities of being;the more fully a man participates in them, the more he is what he can be” 8 . Assuch, basic goods represent goals of man’s rational activity, reasons why people doconcrete things in life. That is precisely why Finnis determines them as practicalprinciples, because their purpose is to position man’s practical reasoning 9 .They represent the first principles of man’s activity, the premises of our actions.They are, Finnis says interpreting Aquinas, ”basic reasons for action” 10 .5T. Aquinas: Summa Theologica I-II, q. 94, a. 2 c. (translated by Fathers of the EnglishDominican Province, http://www.newadvent.org/summa)6More precisely, Aquinas talks about the most general principles (principia communissima),which everyone knows of (que sunt omnibus nota) in themselves (per se nota) and whichcannot be proven (indemonstrabilia). See: ibid, q. 94, a. 6 c.7Self-evidence is the quality of basic goods which Finnis insists most upon. To his basicgoods are ”undemonstrabile but self-evident principles which shape our practical judgment”.These are values that cannot be derived from facts or proven in any other way. Having quotedThomas Aquinas, he claims that these are axiological categories which are self-evident (perse nota) and as such absolutely underivable from any speculative principles, metaphysicalattitudes and other philosophical presuppositions or theological truths. By insisting on self--evidence of basic goods Finnis manages to build a theory of ethical behavior without explicitlymentioning God, staying equally open both to theistic and atheistic points of view.8J. Finnis, Natural Law and Natural Rights, Oxford, 2002, р. 103.9ibid, р. 63.10J. Finnis: Aquinas, Moral, Political, and Legal Theory, Oxford, 2004, р. 79

John Finnis, the Heir of the Aquinian Natural Law Tradition 147However, if basic goods are the point where Aquinas’ and Finnis’ naturallaw theories meet, they are also the point where they diverge. Like manyauthors 11 have noticed so far, what Finnis actually takes from Aquinas is hisideas of basic goods as principles of mundane well-being. Both Aquinas andFinnis consider them principles of human happiness, but only Finnis thinksthey are enough for achieving well-being. Unlike Finnis, Aquinas considers thishappiness a temporal, mundane and ephemeral amenity, the so-called beatitudoimperfecta. To Aquinas a real bliss, a true happiness, the one ethics is directedtowards, aims at reaching and knowing the so-called universal good – God 12 .In that respect Finnis is only partially loyal to Aquinian ethics. He, unlikeAquinas, is occupied by the question of a morality which would, in simplestwords, be a road to a good life of an individual. Finnis is interested in themundane happiness of people. He leaves God aside 13 .Finding the purpose of moral action in mundane life, Finnis has approachedAristotle in his ethics and distanced it from Thomas Aquinas 14 . On the otherhand, in not connecting it to any narrower religious context, he has expanded11See: Bradley, D. J. M. : John Finnis on Aquinas ”The Philosopher”, The Heythrop Journal,vol. 41/1.12It is interesting to make a parallel between Finnis’ and Maritain’s understanding of commongood as a key concept of the (neo)Aquinian legal and political philosophy. These twoapproaches are very close, this primarily being supported by the similarity of connotationsof this concept with both authors. Namely, Maritain, like Finnis, under common goodsubsumes a set of those things which provide each member of a community an opportunityto perfect their lives and personal freedom, simultaneously enabling a harmonious life of acommunity as a whole. Yet, unlike Finnis, Maritain refrains from closing this set of things,but rather, exempli causa, delimits his list of elements of common good to the mostcharacteristic and obvious examples. However, here also a striking similarity can be foundbetween Finnis’ list of seven basic goods and Maritain’s examples. Thus, Maritain’s concepts ofwisdom in action and spiritual wealth are a perfect match with Finnis’ practical reasonablenessand religion, while other goods, like friendship, are explicitly stated by both authors.13Although not completely. It should not be forgotten that Finnis includes in the list ofbasic goods the need for religion which offers us a special, non-empirical explanation offirst and last questions of man’s world. In that manner God (or another form of religiousexplanation) gets his place in Finnis’ ethics, in any case not as first or last goal of man’smundane practice, but as one of seven equal basic goods.14To Aristotle reaching happiness is an act of mundane nature and is not connected with anytranscendental experience. Although Finnis does not define it in the same way as Aristotle,we consider that he places it in the same context of man’s temporal life, thus achieving moresimilarity to Aristotle than Aquinas’ thought.

148Marko Božićthe borders of its accessibility, although he has not completely secularized itwith the fact that he concluded the list of his basic goods with religion – aparticular human need for the answers to first questions of man and his world.1.2 Practical ReasonablenessSince basic goods are self-evident and clear, they are not problematic. Theyare in themselves uncontroversial and as such are the foundations of ethics,although not its fundamental problem. These are undoubtable values whichprecede every morality. Finnis constantly reminds us: ”Remember: by ’good’,’basic good’, ’value’, ’well-being’, etc. I do not yet mean ’moral good’, etc.” 15 . Evenif they represent a demand, an instruction, a should, basic goods are not a moralnecessity. Finnis turns our attention to this by interpreting Aquinas: ”This shouldis intelligible in the sense that it is not moral. Even the most indifferent ormorally hostile people can recognize and, if intelligent, recognize and use someof the first principles of practical reason” 16 . Every human being has the knowledgeof basic goods and that is why these goods are the basis of our practical andethical behavior, but they in themselves are simply not a moral dilemma. Theyare of extra-moral, or more precisely pre-moral, nature. A moral dilemma is tobe found in a different place, according to Finnis.Namely, if we know basic goods which we strive for, we have not solvedthe problem of reaching them. Knowing basic goods as a reflection of our wellbeingtells us nothing about how they can be achieved. In other words, mannever has a dilemma about which values to follow, but about the road that leadsto them, i.e. concrete actions which should be undertaken in order to achievethe set goals. So the problem does not lie in basic goods as self-evident premisesor principles of our actions, but in concrete conclusions which should be drawnfrom the premises in order to achieve these goods. Finnis says: ”The principlesthat express the general ends of human life do not acquire, what wouldnowadays be called, a ’moral’ force until they are brought to bear upon definiteranges of project, disposition or action, upon particular projects, dispositions oractions” 17 . The problem of ethics is, therefore, not in the presupposed goals of15J. Finnis: Natural Law and Natural Rights, Oxford, 2002, p. 86.16J. Finnis: Aquinas, Moral, Political, and Legal Theory, p. 86 and further.17J. Finnis: Natural Law and Natural Rights, Oxford, 2002, 101.

John Finnis, the Heir of the Aquinian Natural Law Tradition 149action, but in the action itself. Here lie all our moral dilemmas: ”By disclosing ahorizon of attractive possibilities for us, our grasp of the basic values thuscreates not answers, the problem for intelligent decision” 18 .The question is to what degree Finnis follows ethical learning of ThomasAquinas in this respect. Surely for him, as well as for the medieval scholastic,the basic problem of ethics remains in making right moral judgments on thebasis of self-evident principles 19 . Following Aristotle, they recognize well-beingin action, ”the activity which perfects the greatest capability of man by directingit to the highest and most noble subjects” 20 . This is a question of a practicalethics. For both Aquinas and Finnis a moral problem is always a problem ofaction.After posing a problem, Finnis now has to solve it. This is where heintroduces the second fundamental concept of his ethics – practical reasonableness.It is seen by Finnis as the capability of reasoning and deciding with the aimto make decisions and act and is determined as ”the capability of one’s ownintelligence to successfully deal with personal problems of choosing one’s ownactions, life style and shaping one’s own character” 21 . Practical reasonablenessis an intellectual capacity of man to cope with a moral dilemma and resolve itsuccessfully and is based on nine principles 22 .Although he had been loyal to his scholastic paragon, only after theintroduction of practical reasonableness did Finnis completely unveil his neo-Aquinian face. Practical reasonableness is at the heart of Aristotle’s phronesis,i.e. prudentia of Thomas Aquinas – practical wisdom or reasonableness as aspecial ability of the intellect to discern right from wrong in man’s practicalaction. Like classical authors whose thought he follows, in respecting the demandsof practical reasonableness Finnis sees a criterion of ethic self-realization of ahuman being. Only to the extent of one’s reasonable actions, i.e. following these18ibid, p. 100.19See: T. Aquinas: Summa Theologica I-II, q. 94.20F. Koplston: Istorija filozofije – srednjevekovna filozofija, Beograd, 1991, p. 449.21K. Čavoški: Uvod u pravo I, Beograd, 1999, p. 84.22Finnis lists and discusses in detail these nine principles in Chapter 5 of his book NaturalLaw and Natural Rights. These are: existence of a rational plan for life, non-existence ofarbitrary preferences among goods, non-existence of arbitrary preferences among people,abstinence, commitment, efficiency within reason, respect of every basic good in every act,fostering common good and respecting one’s own conscience.

150Marko Božićprinciples, can we come close to basic goods, the values we spontaneously strivefor. Only that can make humanity from potency.Finnis ends his natural law theory as a moral philosophy with practicalreasonableness. This is a concept which is a corner stone of his jusnaturalism.”A consistent theory of natural law is only the one that directly approaches thecriticism of practical viewpoints with the intention to separate reasonable fromunreasonable and thus differentiate the really important from the unimportant,or is important only as unreasonable use or the opposite of really important” 23 .This is the essence of Finnis’ natural law. It is a moral theory which is based onrespecting fundamental values and offers practical reasonableness with its nineprinciples as a modus operandi for achieving moral good.2 Thomas Aquinas and Finnis’ Theory of LawIf understood in this way, Finnis’ natural law theory is actually a learningwhich explains the principles of proper, good life, i.e. life where basic goods andvalues can be reached. As such, his ethics is primarily directed at an individual, asingle man, and the way to accomplish personal well-being. Regarding this, thequestions are: what is the place of the society in this system, what is the role of thestate, public authority, law and other concepts of a political community? Theanswers to these questions contain Finnis’ interpretation of the role of positive law.2.1 Legitimacy of AuthorityWithout stressing the importance of the connection between an individualand the community in the way Aristotle and Thomas Aquinas do (both explainhuman nature starting from man as social being, zoon politikon), Finnis in fact(and, it seem, a priori) accepts the necessity of the existence of society. To him itis indisputable that, besides individual good, there is ”common good of such anall-round association [was] said to be the securing of a whole ensemble of materialand other conditions that tend to favor the realization, by each individual in thecommunity, of his or her personal development” 24 . So, common good, in thesense of well-being of the whole political community, which is recognized today23K. Čavoški: Uvod u pravo I, Beograd, 1999, p. 83.24J. Finnis: Natural Law and Natural Rights, Oxford, 2002, p. 154.

John Finnis, the Heir of the Aquinian Natural Law Tradition 151in expressions such as ”general welfare” and ”public interest” 25 , are a preconditionof every individual well-being.The concept of common good is one of cardinal concepts of Finnis’jusnaturalism. Relying on this concept, he will build his understanding of positivelaw. Namely, by determining the significance of common good for an individualand society in general, he faces very important questions of its realization: whodecides on the matters of common good, how are such decisions made and whoputs them into action?In Finnis’ opinion, within one community common good could,theoretically speaking, be accomplished either by consent of all its members orby establishing public authority. He has taken this dilemma from SummaTheologica, where Aquinas says: ”Now to order anything to the common good,belongs either to the whole people, or to someone who is the viceregent of thewhole people (gerens vicem totius multitudinis). And therefore the making of alaw belongs either to the whole people or to a public personage who has care ofthe whole people: since in all other matters the directing of anything to the endconcerns him to whom the end belongs.” 26 . Since absolute consensus in acommunity is not possible, Finnis opts for a different solution. In interpretingAquinas, he says: ”So a group’s – the political community’s – good life, too,requires that the group act well. But there is a precondition for acting well: theunity of the acting being’s parts. In individual human beings, this pre-conditionis secured by nature. But in communities, the needed unity of life, the unity called’peace’ {pax}, has to be procured by governance {per regentis industrian}.” 27 .Finnis in effect takes over Aquinas’ justification of public authority, which isnecessary to realize common good – necessary material conditions for theaffirmation of each personal progress and individual well-being.Acquiring Aquinas’ ideas about the legitimity of public authority 28 , Finnisdetermines positive law as an instrument through which this authority securesconditions for accomplishing common good, i.e. he interprets law as a set of rules25Ibid, p. 156.26T. Aquinas: Summa Theologica I-II, q. 90, a. 3 c.27J. Finnis: Aquinas, Moral, Political and Legal Theory, p. 230.28Finnis’ legitimity of public authority is not completely identical to that of ThomasAquinas, though, all the more since Aquinas’ last justification of its authority comes fromits Biblical origin and rests on a well-known saying ”There is no power but of God”.

152Marko Božićwhich direct the community towards common good 29 . In that respect he directlytouches upon Aquinas who, in the definition of human law, says: ”It is nothing elsethan an ordinance of reason for the common good, made by him who has care ofthe community, and promulgated.” 30 . This understanding of the source of publicauthority and the essence of law is directly continued in other classical authors.Namely, antique political philosophy determines the function of the state asachieving common good and just order. Public authority also exists in order tosecure common good of a political community through its decisions. This is a veryold idea and is perhaps best illustrated by Aquinas’ idea about the nature of law andregulations: ”Consequently, since the law is chiefly ordained to the common good,any other precept in regard to some individual work, must needs be devoid of thenature of a law, save in so far as it regards the common good. Therefore every law isordained to the common good.” 31 .According to Finnis, for common good to be really protected by positivelaw, the decisions of public authority must themselves be based on the principlesof practical reasonableness. Only then would law enable the accomplishment ofbasic human goods and values. This is exactly the connection between naturaland positive law which Finnis takes from Aquinas: while making decisions,every legislator must abide by the principles of practical reasonableness, should actreasonably, i.e. in accordance with natural law 32 . Only then can he materialize29According to Finnis’ focal definition, law is a concept which is used ”to refer primarily torules made, in accordance with regulative legal rules, by determinate and effective authority(itself identified and, standardly constituted as an institution by legal rules) for a ’complete’community, and buttressed by sanctions in accordance with the rule-guided stipulations ofadjuticative institutions, this assembly of rules and institutions being directed reasonablyresolving any of the community’s co-ordination problems (and to ratifying, tolerating,regulating, or overriding co-ordination solutions from any other institutions or sources ofnorms) for the common good of that community, according to a manner and form itselfadapted to that common good by features of specificity, minimization of arbitrariness, andmaintenance of a quality of reciprocity between the subjects of the law both amongstthemselves and in their relations with the lawful authorities” J. Finnis, Natural Law andNatural Rights, Oxford, 2002, p. 276-277.30T. Aquinas: Summa Theologica I-II, q. 90, a. 4 c.31T. Aquinas: Summa Theologica I-II, q. 90, a. 2 c.32From Aquinas Finnis also takes over two models of deducting positive law rules from theprinciple of natural law: modum conclusionis and modum determinationis, i.e. throughimmediate conclusion from these universal principles and through a closer determinationor concretization of a general principle of natural law. Finnis is trying to distinguish these

John Finnis, the Heir of the Aquinian Natural Law Tradition 153the function of his authority and contribute to common good by enabling eachindividual to achieve one’s own progress in life.Such views of law are the finest illustration of neo-Aquinianism of JohnFinnis. In other words, a parallel between the two authors could be stressedbecause, when Aquinas says: ”The political order is the rule of justice. The ruler isexpected to rule according to laws and these laws must be just. That means thatthey cannot be an arbitrary expression of will, whether it is individual orcollective, but a reasonable inference from the principle of justness which Godhas unveiled to man” 33 , Finnis continues, centuries later: ”The name commonlygiven to the state of affairs in which a legal system is legally in good shape is ’theRule of Law’” 34 . Actually, to Finnis the rule of law is in fact nothing else than alegal system which respects the principles of practical reasonableness, i.e. it is asystem of positive law which follows the principles of natural law 35 . In such casesthe legal norm has, not only a legally binding, but a morally binding strength.Such norms, in the words of Thomas Aquinas, ”bind a man in his conscience” 36 .2.2 Respecting an Unjust LawWhat Finnis considers a special problem is the situation when publicauthority and its decisions have not procured the necessary legitimity, whenwhen he says that ”deriving law from basic principles of practical reasonableness trulypossesses two main modalities identified and named by Thomas Aquinas; but they are nottwo streams flowing in separate channels” (Finnis, J. Natural Law and Natural Rights, p. 299).33D. Biongari: Politički nazori Tome Akvinskog, Zagreb, 1991, from the preface T. Aquinas:The State, р. 21.34J. Finnis, Natural Law and Natural Rights, Oxford, 2002, p. 270.35Finnis recognizes all seven principles of the Rule of Law. It exists only when the legalsystem is such that: 1) its rules are prospective and not retroactive; 2) the rules are in nomanner such that they are impossible to abide by; 3) its rules are promulgated; 4) its rule arecoherent one with another; 5) its rules are stabile enough to enable people to be directed byits knowledge of the contents of the rules; 6) the bringing of decrees and orders applicableto relatively limited situations are directed by the rules which have been promulgated, clear,stabile and relatively general; 7) those people who possess authority to create, apply anduphold the rules in official capacity a) responsible for their behavior in accordance withrules which can be applied onto them and b) actually apply law in accordance with its spirit.These views, Finnis says, have been taken from other authors. In that respect the similarityof his theory to that of Lon Fuller on the interior morality of law is evident.36T. Aquinas: Summa Theologica I-II, q. 96, a. 4 c.

154Marko Božićpositive law, created by the will of bearers of public authority, has not beenfounded on the principles of practical reasonableness, which in itself is not infavor of common good. The question is if the legal rule of corrupt authority staysbinding.According to Finnis, what gives a decision a character of justness is thefact that this decision comes from the power of public authority. In order for arule to be valid, to be applicable and legally binding, it is enough to come from alegally authorized source. In that sense the regulation of positive law does notlose it legal validity not even when it is directly opposite to common good. It stillremains legally valid and it is still part of positive law. However, such a regulation,being distanced from justice, loses its moral strength and stops binding man inhis conscience. Actually, in cases when the aforementioned principles of naturallaw are not respected, i.e. when the power of public authority is used againstgeneral interest, the decisions which have been made are not morally binding,only legally, which means that man has no moral obligation in his conscience.According to Finnis, ”In those cases a simple principle that an unjust law is nota law cannot apply. Positive law which is not in accordance with the principlesof practical reasonableness does not stop being a law, although its characteristicof law is diminished, it is less legal or, in other words, is not completely law” 37 .Although it seems that by making these claims Finnis radically departsfrom one of the most recognizable Aquinian theses – lex injusta non est lex 38 –he is merely giving a more original interpretation. Using Aquinas’ attitude thatin protecting common good a just law binds man in his conscience, Finnis onlydraws a logical conclusion that in the opposite case an unjust law stays a merepositive law regulation devoid of full legitimity and inner moral strength 39 .37Vukadinović, G. Stepanov, R. Teorija prava I, (Theory of Law), p. 517.38Latin for: Unjust law is no law.39Actually, in his Summa Theologica Aquinas says: ” On the other hand laws may be unjustin two ways: first, by being contrary to human good, through being opposed to the thingsmentioned above – either in respect of the end, as when an authority imposes on hissubjects burdensome laws, conducive, not to the common good, but rather to his owncupidity or vainglory – or in respect of the author, as when a man makes a law that goesbeyond the power committed to him – or in respect of the form, as when burdens areimposed unequally on the community, although with a view to the common good. The likeare acts of violence rather than laws; because, as Augustine says (De Lib. Arb. i, 5), ”a lawthat is not just, seems to be no law at all.” Wherefore such laws do not bind in conscience,except perhaps in order to avoid scandal or disturbance, for which cause a man should even

John Finnis, the Heir of the Aquinian Natural Law Tradition 155In that manner Finnis’ doctrine becomes widely accepted and equallywell resounds not just among supporters of the revival of natural law, but alsoamong the followers of legal positivism. It plays the part of a compromise. ”Areason for that should simply be sought in the fact that its comprehension doesnot represent an antipode, but a complement of the attitudes of positivists,especially in the part where Finnis’ attitudes are compatible with the theorybased on sources according to which law, even if unjust, is formally validbecause of its source” 40 .yield his right, according to Mt. 5:40,41: ”If a man ... take away thy coat, let go thy cloak alsounto him; and whosoever will force thee one mile, go with him other two.” T. Aquinas,Summa Theologica I-II, q. 96, a. 4 c.40Vukadinović, G. Stepanov, R. Teorija prava I, p. 518.

3 Marko Trajković, LL.M, AssistantFaculty of Law, Niš, SerbiaRICHARD A. POSNER: THE PROBLEMATICS OFMORAL AND LEGAL THEORYthird printing, First Harvard University Press, 2002, 311 pp.Legal Affairs magazine named Richard A. Posner one of the top twentylegal scholars in US. But his pragmatism, his qualified moral relativism, and hisaffection for the philosophy of Friedrich Nietzche set him apart from mostAmerican conservatives. His style is approachable, his explanations almostalways clear, although he is well know for his polemical style. His influences arethe American jurist Holmes and Hend. Posner has written several books onjurisprudence and philosophy of law: Law, Pragmatism and Democracy, TheProblems of Jurisprudence, The Problematics of Moral and Legal Theory. Posner’sphilosophy is often controversial, but its contribution is significant whateverthe subject at hand is.The book of Richard A. Posner The Problematics of Moral and Legal Theory,grew out of series of lectures given in 1997 at – Harvard, New York University,and at the University of Arizona.In this book, he argues why moral theory should not influence theshaping of the law. His cry here is: „Free law from moral theory” (p. 95).Posner’s primary interest is the law, but he accepted the opinion that isnow recognized that lawyers, judges, and law professors can not do law withouthelp from other disciplines. That is becouse they do not know enough aboutactivites that law regulates. He thinks that profession needs help, but there isdisagreement about where it should turn for help.Posner argues that moral philosophy has nothing to offer to judges orlegal scholars in the formulation of jurisprudental or legal doctrines. For him itis particularly clear that legal issues should not be analyzed with the aid of moralphilosophy, but should instead be approached pragmatically.The book is in the two parts, each containing two chapters. The first partis primarily critical, the second primarily constructive.

Richard A. Posner: The Problematics of Moral and Legal Theory 157About moral problem he argues in the chapter Moral Theory. Posner thinksthat moral theorising does not provide a usable basis for moral judgements, andcannot make us morally better people. Even if moral theorising can provide ausable basis for moral judgements, it should not be used for making legaljudgements. Then he says that there are no universal moral principles; they areonly fancy dresses of social norms that vary from society to society. What isuniversal are the „moral sentiments” or „moral emotions”, which include guilt,indignation, and disgust. That position he calls „pragmatic moral skepticism”.He is not a moral nihilst, nor an epistemological skeptic or relativist, but merelya limited skeptic.Posner argues that, academic moral theory should be distinguished frommoral preachement outside the academy. The Jesus Christ of the Gospels is amoralist, but, unlike Plato and Aristotle, he is not a theorist and does not makeacademic-style arguments.From moral theory Posner moves to legal theory, examining how moraltheory has and might influence the law. As he sees it, the influence is extremelylimited. He cites a number of ostensibly moral legal cases, from euthanasia andabortion to segregation and finds moral theory basically absent and unnecessaryfrom the judical decision regarding them.In the chapter Legal theory, moral themes, he carries the discussionexplicitly into the relam of law. The term ”legal theory” is not as familiar as itshould be. This chapter is about the infection of legal theory by moral theoryand about the profession’s efforts to resist the infection. Here he examines issuesin jurisprudence, constitutional law, common law and statutory law. He writesabout these issues with reference to Dworkin, Hart and Habermas. The featureof these jurisprudential theories that he wants to emphasize is their pretensionto universality. Each theorist announces principles he thinks applicable to anylegal system. Yet, each is actually best understood as describing a national legalsystem of England in the case of Hart, American in the case of Dworkin, andGerman in the case of Habermas.The discrepancy between law and justice is an old problem, but it is obscuredby the law’s frequent borrowing of moral terminology, of terms such as „fair”and „unjust”. With reference to Holm’s thought, he says that long ago Holmswarned of the pitfalls of misunderstanding law by taking its moral vocabularytoo seriously. The law uses moral terms in part because of its origins; in part tobe impressive; in part to speak a language that the laymen to whom the commandsof the law are adressed, is more likely to understand and at the end Posner

158Marko Trajkovićadmits, because there is a considerable overlap between law and morality. Theoverlap however is too limited. Because of that it is not a big problem when thelaw fails to attach a sanction to immoral conduct or when it attaches a sanctionto conduct that is not immoral.In the third chapter Professionalism he gives an example of how socialscience can help answer questions about the ideals of justice and actual behaviorof the legal system (relations between crime and social classes, between socialclasses and criminalizing the mind-altering drugs, between the offender andthe victim, the plaintiff and the defendant, the judge and litigants), that leavetraditional thinkers confused. Sociology of law has a great part in Posner’s theory.In this chapter we have a closer look at the practice of law. He says thatprofessionalism is a precondition of the reform of law.Pragmatism, and that is a title for the last chapter, is the key to improvinglaw. That is the way how to get to real professionalism. As he is a judge himselfhe wants to show in this chapter the work of the pragmatist judge. The judicalpragmatist has different priorites. He wants to come up with the decision that willbe best with regard to present and future cases and needs. He is not uninterested inpast decisions. Far from it. So the pragmatist judge regards precedents, statutes,and constitutional text both as sources of potentially valuable informationabout the likely best result in the present case. Inspite of his opinion about theeducation of lawyers, he argues that law professors are not paid to train lawyersbut to study the law and teach students.This is the book devoted to the philosophy of pragmatism, which incitesdoubt, whereas doubt incites inquiry, making a judge and law professors less ofdogmatics and agnostics, and more of pragmatics, or at least open-mindedadjudicators.The book loses some focus as it shifts from critisim to analysis andsuggestions. Posner’s thought that moral philosophy can be of no use to lawyersand judges is very weak. Nevertheless, the book is very worthwhile. Posner is atalented scholar and a very good writer. There is a lot worth considering here,though many readers might not like what they are being told. Provocative andinteresting the book is certainly highly recommended for all interested in moraland legal theory.

4 Prof. Danijela GrujićNovi Sad, SerbiaFOR THE LOVE OF ONE’S COUNTRYAND THE WORLDAbstract: In America, the academic discourse on the issue of patriotismand its limits at the end of the twentieth century 1 focuses on the basic modernpolitical antithesis cosmopolitism versus patriotism, thus making it the startingpoint for a serious public discussion, which reaches far further from its basichomeland, more precisely, far deeper than that, touching the goals of an empire,the eternal mankind. This path is very similar to the one that is walked by nationalliteratures climbing up to become world literatures, only that the interest whichit arises does not stop by the cultural, or the moral, or by the cosmopolitan view,as it is usually the case in a superficial approach. Even a certain historical interestcould be found in all this, a trial that the recent American and European historyis understood in the light of the antithesis under consideration. At the same time,it enhances both theoretical and practical human behavior, in fact, it challengesa consequent life attitude to be chosen no matter where, either here or in America.Key words: Cosmopolitism, patriotism, America, multicultural, globalization,international order of statesA way of thinking, arising from the contemporary political experience inAmerica, a unique reflection of the political practice at the end of the twentiethcentury follows up the tradition of the recent centuries, a way of thinking thatencapsulates cosmopolitism versus patriotism. The vivid interest shown by the1This discourse has been published in the Proceedings For The Love of One’s Country, editedby Martha Nussbaum and Joshua Cohen. According to Martha Nussbaum, it had begunsomewhat earlier by Richard Rorty’s invitation addressed to his co-patriots to establish acommon American identity. This was not an isolated attempt concerning strengthening ofpatriotism, but, previously, Sheldon Hackney had provoked a national wide discourse aboutthe American identity.

160Danijela Grujićspeakers taking part in the discussion 2 toward the relation of cosmopolitismand patriotism, opened up the possibility of taking under consideration the roleand importance of cosmopolitism and patriotism of the contemporary world ina complex way, as well as a variety of answers directed at the cosmopolitaninitiative given by Martha C. Nussbaum. In her introductory essay, this authoressreferred, above all, to the cultural cosmopolitism typical to the antique epoch,stressing ”the ancient ideal of a cosmopolitan, a man devoted to the everembracing global community of human beings” 3 , versus patriotic pride, whichis dangerous both in moral and politic way. The enthusiasm for the cosmopolitanconcept of education aims at ”putting global and not democratic or nationalcitizenship in the focus of civil education”, on the other hand, it refers to moderncosmopolitism as such, its political dimensions as well as the basic dichotomyof the new age about the meaning what civilian means, in this context: civilianin the USA, equals civilian of the world.Just to remind, let us stress that the tradition what cosmopolitism reallyis, what is often being referred to by participants in discussions, happens to befar richer than people usually have in mind when mentioning Cynics, Stoics orKant. It is even more important to emphasize that the thought of cosmopolitismitself has transformed over its long history, having been undergoing a whole rangeof special shaping. An essential difference, however, should be made betweencosmopolitism in an antique sense and modern sense; the difference lies inepochal differences between the old and new world.American cosmopolitism bears basically a cultural character; it is just anabstract idea originating from a rather weak human subjectivism, although – ina historical sense – it did participate in the implementation of the antique Cosmopolis idea. Bearing that in mind, Nathan Glazer says: ”I assume that one reasonwhy cosmopolitism could make any sense for the philosophers studied byMartha Nussbaum is that they themselves were civilians of the ’Cosmo polis’ –an almost universal state and civilization – the one sided rights and obligations ofwhich were reflected in the uniformity of urban architecture.” 4 Nevertheless, it2In the above mentioned Proceedings: Martha C. Nussbaum, Joshua Cohen (ed.) for theLove of One’s Country (A Discourse on Limits Concerning Patriotism), Biblioteka ”XX vek”,Beograd 1999, there are Martha Nussbaum’s editorial, papers of sixteen speakers and MarthaNussbaum’s final paper.3Op. cit., p. 104Op. cit., p. 77

For the Love of One’s Country and the World 161was a negative experience in civilization sense concerning the formation of aCosmo polis, a totally opposite model of the contemporary belief about whatcosmopolitism is. It was not a cosmopolitan empire at all; therefore, we shouldnot be surprised by Amy Guttmann’s opinion, which is: ”According to what wehave known so far, the only world political order possible is tyranny.” 5 SisselaBok also realizes the same, when she reminds us that ”the Stoic Marco Aurelio’sinspiring reflection about cosmopolitism, equality and love toward your fellowmen did not stop the Roman Emperor Marco Aurelio to oversee the increasedpersecution of Christians, who fought for the very same ideals.” 6When speaking of the modern epoch, situation is quite the opposite.Cosmopolitism as a child of the enlightenment has become a relevant politicalidea, which, however, did not succeed to be brought about in the contemporaryinternational world order of the national states. The strong modern antithesisto cosmopolitism and patriotism within the issue of political ideas has beenproven immature when speaking of historical reality.Therefore, Amy Guttmann’s words should be taken seriously: ”Indeed,we can be citizens of the world only if a worldwide political structure exists” 7 ,of course, such a structure which would be the expression of a Cosmo politicpursuit in a modern sense.The American InternationalismThe specific nature of the American national identity, as an extraordinaryblend of cosmopolitism and a parish centered structure, studied closely byBenjamin R. Barber, discloses the almost forgotten bitter life story of Europefrom the last century, being shattered by the brutality of intolerant social relations.The birth of American citizens in the light of historically extremely tenseantithesis of cosmopolitism and patriotism gets a special cosmopolitan sense.”Settlers and (later on) residents saw themselves as subjects of a new process oflosing roots and taking roots again.” In his famous An American Farmer’s Letters,St. John Cravacker introduces the new American shape of patriotism as acounterpart to the religious parish centered structure and to the persecutions5Op. cit., p. 836Op. cit., p. 497Op. cit., p. 83

162Danijela Grujićwhich caused people immigrates to America. American patriotism was thecounterpart to all those evil, which Martha Nussbaum links to Americanpatriotism. Cravacker celebrates the formation of the ”new man” in the ”greatAmerican asylum (where)... everything tends toward the renewal (of man)...new laws, new life style, new social structure: here they have become people; inEurope they were just infertile plants... (here) they have struck their roots andbloomed.” How it happened? ”What power caused that unusual change happen?The power of law did.” American civil identity was invented as a barrier, toprevent religious wars; on the other hand, Martha Nussbaum fears, that religiouswar was exactly what American civil identity could have caused.” 8 The issueis about the American intention to overcome the dualism of patriotism andCosmo politics, which is a special experiment ”to implant patriotic feeling ontoa constitutional trunk” 9 , an exception of a new collection of patriotic ideas, thathad to free the inhabitants in America from the burden of European culturaland political links. The American internationalism is defined by Lincoln’swords, ”America is perhaps our best hope ’for the people worldwide’; thoseideas attracted to the American shores people who had been made unhappy byall kinds of poisonous patriotism.” 10The American tendency to overcome the modern antithesis of cosmopolitismand patriotism was implemented in a special state, which fact caused a range ofcollateral problems later on.” The attempt to make such values cosmopolitan,even caused some troubles to America (in Mexico, under Wilson, in Vietnamunder Kennedy, Johnson and Nixon, and now, perhaps, in Bosnia) – a reminderfor Martha Nussbaum that cosmopolitism also has its pathology and can nurseits own antiseptic version of imperialism” 11 – explains Benjamin R. Barber.Michael Walzer speaks about the consequences of making a state cosmopolitan,saying that crimes ”in the twentieth century were done alternatively by pervertedpatriots and perverted cosmopolitans” 12 , referring to socialism in Leninist andMaoist version.Apart from his opinion that no culture is cosmopolitan in a full meaningof the word, Michael W. McConnell says: ”Martha Nussbaum’s advise is8Op. cit., p. 409Op. cit., p. 3910Op. cit., p. 4211Op. cit., p. 4212Op. cit., p. 57

For the Love of One’s Country and the World 163specially wrong when addressed to a country that will most likely accept it: theUnited States of America. No matter what the truth about cultures of othercountries might be, the American culture has been emphasizing universalprinciples of natural justice rather than pride and dignity of a particular race andnation.” 13 It is the site of a contemporary, ripe experience of multiculturalism,as a wide ground for modern cosmopolitism. It is all about a special pride comingfrom belonging to the American nation, a pride based on ”a general acceptanceof various segments from cultures of different nations, i.e. our ancestors’, comingfrom each and every corner of the globe. We would certainly make a big mistakeif we denied it, wouldn’t we?” 14Indeed, it is the cosmopolitan base that should be strengthened these days,as Sissela Bok also states it: ”If we do not learn how to understand the uniquenature of cultures, starting from our own, we will probably not know how toappreciate human diversity neither, along with a common humanity that is theessence of the cosmopolitan ideal.” 15Being a Cosmopolitan in a Historical WorldBy focusing on what is the universal in culture, Judith Butler is showinginterest in the particular experience of the universal, its cultural diversity andcultural interpretation as a unique cultural articulation of the universal. Universalis in the very core of cosmopolitism, it is not its constant unit, though.Its sense has been being historically formed, open for the future, and cancome only as a result of multicultural interaction. ”Interpretation on that sceneof clashes is such that the intended meaning is not more decisive for the ”final”reading than the received meaning, so there can not come any final judgment asregarding the opposed positions. Without this final judgment, the dilemmaconcerning interpretation still stays, representing a dynamic feature of theupcoming democratic praxis.” 16 That is how, in the cultural sphere, the issue ofhistorical category in the practical world opens up”.13Op. cit., p. 10014Op. cit., p. 10115Op. cit., p. 8416Op. cit., p. 61

164Danijela GrujićThe cosmopolitan content is historical as well, shaped by historical time,just as each unique culture is in a constant movement. ”But, it has always beenthat way, everything passes by, because culture is a change, a movement in itself;it is where knowledge on cosmopolitism lies and only the acceptance of that formof a change has an erotic attraction, which can be a counterpart to patriotism” 17– Robert Pinsky thinks. Criticism of dry formulations regarding cosmopolitismcan also be frequently heard, along with the growing distance betweencosmopolitism and tradition, its abstract nature, bloodlessness, as some scholarssay. Hilary Putnam stresses: ”Tradition without mind is just blind; mind withouttradition is empty.” 18 What sense does a universal mind make without tradition?Starting from this general statement on the historical character of the practicalworld and its categories one should go behind the antithesis of cosmopolitismand patriotism. Different traditions take part in the discussion and debate, andthe very understanding of the universal itself is being reconsidered. ”Shortly, wedo not have to choose between patriotism and the universal mind; the criticalintelligence and the devotion to the best values in our own tradition, includingour national and ethnic traditions, are mutually dependant.” 19A full appreciation of intercultural differences and their harmony meanthe very life core of contemporary cosmopolitism. ”The very celebration ofcultural differences is what distinguishes a cosmopolitan from some othersuccessors of enlightened humanism.” 20 – thinks Kwame Anthony Appiah.That is the opinion which comprises cosmopolitism and patriotism in thecommon task of building a tolerant world. Generally, cosmopolitism promotesrespect to every natural and historically developed difference, without anyhierarchy, with no dominancy and subordinacy, as Martha Nussbaum expressesin her final paper.A Contemporary Definition of CosmopolitismThe reconsideration of Richard Falk’s cosmopolitism means a seriousjudgment about the nature of the contemporary relation between cosmopolitismand patriotism, a widely accepted definition of cosmopolitism, which focuses on17Op. cit., p. 10918Op. cit., p. 11519Op. cit., p. 11920Op. cit., p. 38

For the Love of One’s Country and the World 165the specific features of contemporary international order of affairs. ”Although Ibasically share Martha Nussbaum’s vision, I am concerned about the fact thatshe implicitly supports the polarized – either/or – opinion on the tension betweenthe national and cosmopolitan awareness. The discussion launched this waynecessarily overlooks the uniqueness’ of our political circumstances at the endof the twentieth century, and exactly that uniqueness makes both extremismsproblematic.” 21 The loss of high degree autonomy and the primacy of asupreme state, with strong processes of regionalization, globalization andtrespasses of human states caused by demands of the global market make thekey structural nature of international history these days. Naturally, it makes theblade of patriotism become blunt, but also enables common performance forpatriotism and cosmopolitism in the world, where the political unit of measure isnot national state any more. Recovering of human state and human region withsocially engaged institutions demands a common initiative both for patriotismand cosmopolitism.Thus, very important part of the discussion is warning to the dangers bornby globalization, as well as the talkers’ stressed opinion that cosmopolitismshould be distanced from this contemporary process ruled only by the market.”To fulfill the confidence, cosmopolitism should join the criticism aimed at theethically imperfect globalization, embodied in the neo-liberal models of thinking,and in such view of the world as a whole, which minimalizes the ethical andvisionary content of the cosmopolitan idea.” 22 – says Richard Folk, by addingthat ”such a view on the whole completely oversees ethic imperatives of humansolidarity.” 23 The matter with globalization coming from beneath ethically isneither neutral nor capital motivated. Moreover, it can be understood as anexpression of neo-cosmopolitism, in its base there are trans-national and localparticipants and processes, along with voluntarily joined citizens, often engagedaround the global problems concerning environmental pollution.Another kind of answer to the accelerated globalization is the developmentof cosmopolitan culture that is, for the time being, mostly aimed at establishingan international discourse comprising topics such as for example: women,development, population and environment. Gradual moving away of democraticpractice from its narrow ties to state as such can be the path of reconciliation21Op. cit., p. 6522Op. cit., p. 6923Op. cit., p. 70

166Danijela Grujićbetween patriotism and cosmopolitism. Amy Guttmann says it similarly: ”we canreject the idea that our primary commitment belongs to any specific communityand that we can understand the moral importance of living as free and equalcitizens in any really democratic political system.” 2424Op. cit., p. 83

IVArgumentation and Interpretation of Law1 Prof. Marijan Pavčnik, PhDFaculty of Law, Ljubljana, SloveniaConstitutional Interpretation2 Slobodan Beljanski, PhDAttorney of Law, Novi Sad, SerbiaPound’s Concept of Law Standards3 Petar Teofilović, SJDProvincial Ombudsman of AP Vojvodina, SerbiaThe Contribution of the US Jurisprudence to Freedom of Expressionin the USA Through the Development of Defamation Law4 Dragutin Avramović, AssistantPolice Academy, Belgrade, SerbiaAlan Watson: Legal Transplantats – An Approach toComparative Law

Constitutional Interpretation 1691 Prof. Marijan Pavčnik, PhDFaculty of Law, Ljubljana, SloveniaCONSTITUTIONAL INTERPRETATIONAbstract: The author begins the article with the nature of the constitutionand some problems of its interpretation. Further on, he analizes the classicinterpretative arguments: linguistic, logical, systematic, historical and teleologicalinterpretations. In the end, he emphasizes the importance of legal principlesand the mode of application.Key words: Constitution, interpretation, interpretative arguments, legalprinciples, mode of applicationI IntroductionConstitutional interpretation is one kind of interpretation of legal texts(→statutory interpretation). It is only an interpretation when the legal meaningis at the same time the meaning of the words or one of the meanings of thewords of the legal text. It is in the nature of understanding that no text canpredict with complete certainty how it is to be understood. A legal act can never”catch up” with its interpretation 1 . This unavoidable characteristic of legalunderstanding is most intensive in connection with the constitution, which is,at least from the standpoint of national law, the legal act standing at the top ofthe hierarchy. In the end, the person interpreting it is alone. Above him, there isno higher legal act that could very intensively direct the interpretation of alower one. To paraphrase Kant, above him there are only the starry sky and themoral law within him 2 .1Hassemer Winfried: Juristische Hermeneutik, Archiv für Rechts: und Sozialphilosophie, 72(1986) 2, pp. 2032See: Kant Immanuel: Kritik der Praktischen Vernunft. Suhrkamp, Frankfurt/Main 1989,pp. 300 (A 289, 290)

170Marijan PavčnikIt is a play on words whether, in view of what has been said, theinterpretation of the constitution is a supra-constitutional or a sub-constitutionalact. The dilemma was intensified by the former U. S. Supreme Court JusticeCharles Evan Hughes, who stated that the judges are ”under a constitution, but theconstitution is what the judges say it is.” If one tries to be precise, one can see thatthe interpreter is above the text; the text is before him and he must understand itsmeaning. The key question is how one enters this hermeneutical circle: do hisapproach and his previous knowledge require that he discovers by means ofindividual interpretative arguments what the text contains, or does he want to doeverything to willingly bring his own views, aims, and desires into the text?The suitable view for the interpretation of the constitution is the approachmentioned first, which attempts to discover what the constitution contains.Finding out what the constitution contains, which possibilities it offers, andwhat the meaning of these possibilities is, is not just an act of rendition/reconstruction, but also a creative act. On the level of principle it can be saidthat ”the real meaning of a text, as it speaks to the interpreter (...) is alwaysco-determined also by the historical situation of the interpreter and hence by thetotality of the objective course of history” (Gadamer 2004, 296). [”Der wirklicheSinn eines Textes, wie er den Interpreten anspricht, (...) ist immer auch durchdie geschichtliche Situation des Interpreten mitbestimmt und damit durch dasGanze des objektiven Geschichtsganges” (Gadamer 1990, 301).] Regarding legalunderstanding in general, and especially regarding the legal understanding ofthe constitution, there are numerous important circumstances co-determiningsuch understanding. The task of individual interpretative arguments is to openthe context of understanding and to rationalize, check, and direct understanding.The interpretation stops at the point where it goes beyond the possible meaningsof the words of the constitution 3 .Constitutional interpretation is treated as one method of arriving at apossible understanding of the constitution by constitutional courts too. Thisanalysis can be appropriately applied to interpretation carried out by regularcourts or other competent state bodies. The main difference between constitutional3Gadamer Hans-Georg: Truth and Method. London, New York 2004, pp. 296, [”Der wirklicheSinn eines Textes, wie er den Interpreten anspricht, (...) ist immer auch durch die geschichtlicheSituation des Interpreten mitbestimmt und damit durch das Ganze des objektivenGeschichtsganges”, Gadamer Hans-Georg: Wahrheit und Metode, 6th Edition, Tübingen,1990, pp. 301]

Constitutional Interpretation 171and regular courts is the competencies they have. The position a court has inthe hierarchy of courts is of great importance as well. In principle, the higherthis position is, the greater is the influence upon the creation of court practice.II Some Interpretative DilemmasIn principle, the same problems and reservations that apply to theunderstanding of legal texts in general also apply to the understanding of theconstitution, though this does not mean that no differences of meaning existbetween the two kinds of understanding. In a very schematic way, three commondilemmas in particular can be mentioned: the openness of interpretativearguments with regard to their meaning, the open circle of interpretativearguments, and the loose relations between the interpretative arguments.If legal texts were defined in terms of their meaning from the very beginningand if they maintained this definiteness also in contact with concrete cases, theywould not need to be interpreted (In claris not fit interpretatio!), but one couldapply them directly and an immediate subsumption would be possible. Thesame rhetorical question also applies to individual interpretative arguments. Nolegal text is designed as a form to be filled in by data, after which it could beapplied. And even if it were designed in such a manner and came close to thenature of a form, it would still be just one of several forms among which onewould have to choose. In short, interpretative arguments are ”only” orientationsand more or less condensed directions on how to act in concrete cases. ”Even attheir best,” Aarnio says, ”they only tell us: go in this direction” 4 . And this isalready a great deal, in some (difficult) cases this can mean very much.The second dilemma is that we do not know a closed chain of interpretativearguments. The argumentative circle is open, to already known arguments newones can be added if they can contribute to discovering and checking the meaningof the legal text. New arguments are constantly produced by approaches foundedespecially on basic (human) rights and duties, and on legal principles (e.g. onthe principle of the state governed by the rule of law and on the principle of theconstitutional separation of powers), etc. If, in spite of all this, we still speakabout established interpretative arguments, it is obvious that we refer to some4Aarnio Aulis: Reasoning Judicial Decisions, Rechsnorm und Rechtswirklichkeit. Festschriftfür Werner Krawietz zum 60. Geburtstag. Berlin 1993, pp. 644

172Marijan Pavčnikarguments that are generally accepted in a certain legal culture and/or in acertain field of law. The common point of the established arguments is vonSavigny’s design of interpretation (see section IV).Nor is there any easy solution to the third dilemma, drawing attention tothe relation between the interpretative arguments. Theory has given severalsuggestions on how to form a fixed sequence to be kept in legal practice. Thefinal answer is short and clear: there is no fixed sequence, there exists exactlythe same number of answers as there are authors who have dealt with methodsof interpretation. Nevertheless, the answer to such interpretative conflict is notarbitrary because suitable orientations can be achieved in spite of differences.The basic orientation is that only such interpretation is allowed that remainswithin the possible meaning (as porous as it might be) of the legal text. The secondorientation is that all main viewpoints of interpretation (logical, systematic,historical, and teleological points of view) are to be checked and the solutionsthey bring are to be established. From among these meanings interpreters choosethe most convincing one, which is the one with the most arguments (with regardto quality as well as to quantity) speaking in favour of it and which is at thesame time the meaning corresponding to the purpose (telos) of the legal rule. Ifthe interpreter vacillates between several solutions he decides on the one that isin accordance with the purpose of the legal rule (see section IV.6.). In this sensethe teleological interpretation together with the linguistic one is the basic principleof interpretation. At the same time, this is the common denominator reachedby theories studying the conflict between the interpretative arguments.III The Nature of the ConstitutionHow the constitution is designed and understood as a legal act influences theinterpretation of the constitution. It is in the nature of the constitution that it is thestarting-point legal act and the basic legal act: it is the starting-point act because ithas the highest legal validity within the state, and it is the basic legal act because itregulates ”just” the most important social relations. Being the starting-point actalso means that the constitution is (at least from a certain point of view) primarily aprocedural act, which enables all political subjects to play the legal game. Theconstitution foresees the kinds and responsibilities of legal subjects, the relationsbetween them and the basic procedural rules forming the framework within whichlegal and political decisions can be taken. The procedural side of the constitution is

Constitutional Interpretation 173especially important for the modern state. Nowadays the state is a kind of a suprasystem,within which different systems and subsystems must act together.The constitution is also the basic legal act that regulates social relationswith regard to their contents. The constitutions of modern democratic statesgoverned by the rule of law are especially focused on three groups of questions:basic (human) rights (i.e. fundamental rights and freedoms), the form of thestate, and the organisation of the state. This embodies the so-called classicmateria constitutionis. If one compares these three subject matters, it can benoticed that they differ linguistically as well as technically. The organisation ofthe state is the best-focused one with regard to its content and can be directlyconcretized as a whole to an important extent, whereas the form of the state is insome important parts expressed ”just” through principles such as the principlesof democracy, of the state governed by the rule of law, of the social state, of theseparation of powers, etc. These principles are either normatively put in aconcrete form in other parts of the constitution (e.g. the principle of the separationof powers is elaborated in the chapter on the organisation of the state) orrepresent guidelines for the legislature and for concrete behaviour. A specialform with regard to the content is given to human rights and fundamentalfreedoms. The starting point is that they are defined in the constitution in such away that they can be exercised directly. It can only deviate from this rule whenthis is necessary due to the particular nature of an individual right or freedomor when it is provided for some rights that a statute regulates the manner ofexercising them. This technical legal possibility is in practice widely applied.The descriptions of the basic rights also comprise numerous value criteria suchas ”human dignity”, ”personal dignity”, ”inhuman or degrading treatment orpunishment”, ”the inviolability of the physical and mental integrity of everyperson”, ”the economic, social, and environmental function of property”, etc.(cf. Treaty establishing a Constitution for Europe, Art. II-61 ff.). The basicrights with these and similar value criteria have the nature of ”legal principles”,which are described in more or less detail, and have to be further elaboratedand concretized with regard to their meaning.These and other cognitive laws are not obstacles to be overcome anddirectly filled by the understanding (interpretation) of the constitution. Theyare only the laws the interpreter has to consider, while at the same time he hasto be aware of who should normatively concretize the constitution and at whichlevel this should be done. The constitution is a living organism addressing acommunity organized in accordance with state law, enabling it to function in a

174Marijan Pavčniklegal manner: from supreme state bodies normatively giving the constitution anoperational form by means of statutes and other general legal acts, and ordinarymortals, who are limited by the equal rights of others, to the state body (e. g. tothe constitutional court), which ensures that the game takes place within thelimits of the law as regards the content and the procedure. And this is also thekey to understanding the constitution. In a way, this key is very simple: we arewithin the constitution as long as we take into account the norms regardingjurisdiction, procedure, and orientation as concerns content (together with itsbinding limitations). As long as these are our starting points, we are within theframework of the law (the constitution) and at the same time this setting enablesus to make the content dynamic and to normatively develop it further and inmore detail. As long as we act in such a manner, we act legally and at the sametime support any new content we consider legitimate. And it is also a game thatcan and must be controlled by the competent state body (e. g. by the constitutionalcourt or by the supreme court). This competent state body does not have anysupra-constitutional criterion that would indicate whether the development ofthe contents of the valid constitution is constitutional. The competent state bodycan ”only” decide whether the development of the content is still within thelimits of constitutional possibilities and whether such has occurred according toa procedure that is still within the limits of the constitutional procedural game.It is of special importance for the competent state body (e. g. for the constitutionalcourt) to continuously examine whether legal participants respect theconstitutionally consolidated institutions of a state governed by the rule of law(such as the so-called constitutional democracy).What does it mean to be ”still within the borders of constitutionalpossibilities” or to be ”still within constitutional procedural play”? Such is not afirm but often a vague criterion. It is unproductive not to admit it and to hidebehind the constitutional text, as if it were certain enough. It would be muchwiser to ascertain the relative uncertainty of the constitutional text, to analyse itas such and then to search for those implementations that are not beyond theconstitution and which try to embody the meaning that the constitutional text atleast implicitly includes. No, this is not a play on words, it is a methodologicalprocedure which is wilfully self-restricting. This methodological procedure hasa special weight for the highest judicial body (e.g. for the constitutional court),which in more difficult cases may be tempted to appeal to constitutional provisionsonly apparently, while in reality, however, it functions as a supra-constitutionalorgan, changing and completing the valid constitution (cf. → activism, judicial).

Constitutional Interpretation 175IV Classic Interpretative Arguments1 IntroductionEach field of law has a number of peculiarities which have to be considered,and which also influence the interpretative approach. The general methodologiesof evaluation as well as individual legal sciences have to take into account thesepeculiarities. The first step to take is to start with the classic interpretativearguments of von Savigny and to try to determine whether they have any specialtraits when they come into contact with the text of the constitution. Theinterpretative arguments themselves further such approach because they arealways in a suitable ”dialogue” with the object of their understanding.Von Savigny’s classic canonic arguments comprise linguistic interpretation,logical interpretation, systematic interpretation, historical interpretation, andteleological interpretation. These arguments are well-known and generallyaccepted in European continental law. Below I shall draw attention to somepeculiarities these arguments have or can have in constitutional interpretation.Similar arguments are used in the interpretation of the Constitution of theUnited States. Philip Bobbitt 5 analyzes six forms or modalities of constitutionalinterpretation. These forms are the following: historical argument, textualargument, structural argument (this argument is similar to systematicinterpretation), precedent, ethical argument (which derives ”rules from thosemoral commitments of the American ethos that are reflected in the Constitution”),and prudential arguments (which seek ”to balance the costs and benefits of aparticular rule”) 6 .2 Linguistic InterpretationThe basic characteristic of linguistic interpretation is that the language ofthe constitution is the starting-point legal act and the basic legal act (see sectionIII). In the constitution the organisation of the state is defined in a relativelyprecise manner, whereas legal principles and general provisions on the form of5Bobbitt, Philip: Constitutional Interpretation, in: Kermit L. Hall (glavni ur.): The OxfordCompanion to the Supreme Court of the United States, New York Oxford 1992, pp. 184-1886Cf.: Summers Robert S.: Statutory Interpretation in the United States, in: MacCormick NeilD., Summers Robert S. (eds.) 1991. pp. 412-419

176Marijan Pavčnikthe state, on the characteristics of legal order and numerous elements of basic(human) rights are relatively uncertain. The relatively uncertain terms aresurrounded, as Hart says, by a penumbra of doubt, which leaves open the questionwhether concrete cases still belong under general rules 7 . The circumstance thatthe constitution is the hierarchically highest state act aggravates this problem. Ifthe constitutional court or some other organ which interprets the constitutionwith finality, is not prepared to exercise self-restraint, this endangers theprinciples of the separation of powers. The edge of doubt may hide the dangerthat the representative of the interpretative power changes the basis of the legalorder; on the other hand, it draws attention to the importance of the moralstarting point of law and to the sensitive moral role (and also responsibility) ofthose interpreting the constitution.3 Logical InterpretationLogical interpretation is not ”interesting” in its aspect of demandingtreatment in accordance with the rules of formal logic with regard to the formationof thoughts, inference, and proof. In this sense no differences exist between theunderstanding of the constitution and any other legal understanding. Logicalinterpretation becomes exciting when it refers to persuasion and substantiationconcerning the content, which cannot be checked and chained by strict rules offormal logic. Examples of persuasive argumentation are argumentum a contrario,argumentum a simili ad simile (within the legal text or due to a gap in theconstitution), argumentum a fortiori, argument of the nature of things, etc.As an example of persuasive argument, the argumentum a maiori ad minusmay be taken. This argument has been used by some courts when deciding onthe conformity of laws with the constitution and on the conformity of regulationswith the constitution and with laws. The courts have taken the view that everythingshort of an immediate abrogation or a complete annulment of a regulation isallowed. In this sense also the so-called interpretative decision should be permitted,though mentioned neither in the constitution nor in the constitutional court act.Interpretative decisions may be rather questionable if they are not broughtinto accordance with the role of the constitutional court in a certain state legalsystem (systematic and teleological interpretation!). If the constitutional courtis to be subordinate to constitutional institutions (i.e. the guidance of a state7Hart H.L.A.: The Concept of Law, 2 nd edition, Oxford 1994., pp. 123, see also pp. 128-136.

Constitutional Interpretation 177governed by the rule of law) and restrained in its actions so that it does notintervene in the responsibility of the legislature (the principle of the separationof powers!), this means that only some interpretative decisions are allowed.The basic task of an interpretative decision is to exclude from the legalsystem the meaning of the text of a statute (or some other legal text) that isunconstitutional. The interpretative decision saves the statute (this applies mutatismutandis to the general legal acts that can be the object of a constitutional courtreview) and helps the legislature to keep its legal message within the limits ofconstitutional possibilities. In principle, the task of the constitutional court is toauthoritatively remove any unconstitutional interpretation.It is important, however, that the interpretation must never take over therole of the legislature, which can, within the limits of the constitution, decide infavour of a broader or a narrower scope of the meaning of the legal text. Inprinciple, the constitutional court should not establish which meanings of thelegal text are the only legally (constitutionally) correct ones, but should just keepwatch on whether the search for the dimensions of the meaning of a statute isconstitutional (i.e. within the limits of the constitution). Legal hermeneuticsknows that new cases give rise to new solutions and new developments regardingthe meaning of a statute. The constitutional court should only exceptionally in the case of very unclear statutes that cannot be abrogated without causingirreparable damage state in a positive manner which interpretation isconstitutional, in all other cases it should be a negative legislature.4 Systematic InterpretationSystematic interpretation can also have a general and a special meaning.The general meaning is well known and refers to the role attributed to theexternal and internal legal system 8 , as well as to the manner of connecting andharmonising these two systems if incompatibilities exist between them. Thelatter case already deals with a special meaning that is typical of individual legalfields. The case behind it refers to the fact that the constitutional interpretationmust also consider the ”spirit” and the sense reigning in individual legal fields.8Heck Philip: Begriffsbildung und Interessenjurisprudenz. Tübingen, 1932, pp. 139 ff.; Cf.:Canaris Claus-Wilhelm: Systemdenden und Systembegriff in der Jurisprudenz. 2 nd edition,Berlin 1983.

178Marijan PavčnikThe codes and systemic statutes should, as a rule, be based on legal traditionand on the established findings of legal science (cf. Art. 1/2 of the Swiss CivilCode). This tradition and these findings can be so intensive that they have thenature of a ”commonplace or topos”. If such ”clues” exist, it is only normal thatthe constitutional court takes them into account and raises them to the level of”constitutional arguments” if it finds that they conform to the spirit, the principles,and the criteria of the text of the constitution. To put it even more clearly:”commonplaces” do not have precedence over the constitution; since they areso well founded and persuasive, however, it is possible that the constitutionalcourt accepts them as ”constitutional criteria”. A number of constitutionalcourt decisions referring to individual constitutional rights (cf. →HumanDignity, →Due Process Clause, →Equal Protection Clause, →Prisoners’ Rights)have the nature of ”constitutional criteria” or ”commonplaces”.At least two more questions are important for the interpretation of theconstitution. Both are connected to legal principles and their importance forthe understanding of the constitution. Legal principles do not have more legalvalidity than the other parts of the constitution, but are an integral part thereof.General constitutional provisions represent the leading principles and thestarting points only inasmuch as their content is realized in other chapters ofthe constitution, in individual statutes and other formal legal sources. Thus, theconstitution is a legal whole, wherein individual provisions must conform toeach other: everything must exist within the limits of the constitution and in thesense of the general provisions, which together with the preamble represent itsinterpretative starting point.Legal principles are a very important, but also a very sensitive, elementthat sets the tone of the constitutional and legal system as a whole. Specialattention should be paid to the fact that even very abstract principles are a partof the system as well and that it would therefore not be legal if new contentswere brought into the system from the outside. We have again arrived at thehermeneutical circle and at the manner of entering it. We are within theconstitutional system as long as we start out from its elements and startingpoints.If this basis of interpretation does not exist, we have already gonebeyond the system and find ourselves on non-legal (non-constitutional)ground. This kind of interpretation is no longer in accordance with theprinciple of a →state governed by the rule of law.

Constitutional Interpretation 1795 Historical InterpretationHistorical interpretation is a classic interpretative argument that comprisesseveral elements: it considers the historical conditions in which and because ofwhich the legal text originated, it discovers the genesis and the whole developmentof how the legal text obtained its final linguistic expression and it compares anyearlier legal text with the new text regulating the same legal matter. In all thesecases the historical circumstances help to establish the meaning of the legal text.All three groups of questions are certainly also important for theunderstanding of the constitution. Historical circumstances are especiallyimportant for the preamble and its interpretative power; the preparatory materialsavailable are especially interesting in connection with the constitutional provisionswhich were the subject of different points of view at the time when theconstitutional text was in the process of being adopted or where the final text isa compromise between several points of view, whereas a comparison of the earlierconstitution with the new text is especially valuable in connection with theconstitutional provisions that are different in the new constitution.The historical interpretation opens another central dilemma, which is ofkey importance for the understanding of the constitution. It is the dilemma ofwhether priority should be given to a subjective-static or to an objective-dynamicinterpretation of the constitutional text. The majority opinion is that theconstitution is a legal act that should encompass the legal life in a statecommunity in the long term. It would be unbearable if the legal life wereencompassed by the ”will” of the historical lawmaker. This ”will” is certainlyimportant, one element of the understanding of the constitution will always bethe ”will” of the constitution-maker, which has to be established from case tocase and a position has to be taken thereon. The younger the constitution, themore the ”will” of the historical constitution-maker is present. Yet this ”will” isnot an independent legal source and is not automatically binding, it is just anelement accompanying the understanding the constitutional text.The constitution is a long-term authoritative legal act, which is open toobjective-dynamic understanding. The question is not whether this approachcan be avoided; the question is which position is taken thereon and which senseis given thereto. The key ground of understanding is neither the fossilized pastmeaning of the constitution nor its ”prophetic” future meaning, but thepossible linguistic meaning, which is a part of the world we live in. We haveagain arrived at legal ethics, which builds upon the established value tradition,

180Marijan Pavčnikyet must necessarily supplement and elaborate it with regard to what goes on ata certain time and place and in view of the responsibility to future generations.6 Teleological InterpretationAnother of the classic interpretative arguments is the teleologicalinterpretation, which is closely connected to the objective-dynamic understandingof legal texts. A teleological interpretation determines the meaning of linguisticsigns with regard to the purpose of the legal provision. From the legal point ofview the path from the purpose to the final determination of the meaning of alegal rule must be determined to such an extent that the meaning of the legal ruleis based on criteria contained in the legal text (in this case in the constitutionand/or in statute) i.e. on criteria that can be activated by established methods ofinterpretation. If the legal text does not contain any support on which to basethe understanding thereof, one cannot speak of interpretation: in such a case ateleological interpretation cannot replace other interpretative arguments and initself (as the goal) create a legal rule which should serve as a means to a certainend. Such a case could at best be a legal gap that has to be recognized as suchand filled in concerning its contents by the means that are available for fillinglegal gaps.Teleological interpretation must not stand alone as a ”shining goal” thatcan be manipulated in an arbitrary manner. It lies in the legal nature of teleologicalinterpretation that it must also be based on other elements built into the legalsystem 9 . The greater the number of these elements determining the interpretationwith regard to its meaning and the more these elements complement oneanother or the less they exclude or even contradict one another, the morecoherent the teleological interpretation is. The task of the interpreter is to workout these criteria, to combine and evaluate them and to substantiate a solutionhe accepts as the one carrying the greatest weight and the most reasonable one.It is natural and legal that the interpreter first looks for the criteriaconcerning the purpose of a legal rule in the legal text itself. Logical interpretationwill tell him whether the criterion is consistent and will help him to include, bypersuasive arguments, also cases that are linguistically not directly regulated9See. e.g.: Müller Friedrich, Christensen Ralph: Juristische Methodik, 8 th Edition, Berlin2002, pp. 175-279

Constitutional Interpretation 181(e.g. by argumentum a contrario). Historical interpretation will draw his attentionto the purpose attributed to the legal text (legal rule) by the lawmaker or to thepurpose determined by the historical circumstances that gave rise to the legaltext and in which circumstances the legal text originated. In a broader sensehistorical interpretation will also open the dilemma whether the interpreter isbound by ”the will of the historical constitution-maker”, ”the will of the actualconstitution-maker” or by the purpose the independent text has acquired by thetime of the interpretation (objective-dynamic interpretation). In this broadrange of possibilities, which may also be divergent and contradictory, systematicinterpretation will draw attention to the meaning of legal principles, to themeaning of the legal rule with regard to its position in the system, and to the”internal logic” combining the parts into a whole and thereby determining themwith regard to the purpose.An ideal situation is when these and other interpretative arguments act inaccordance with one another and thereby confirm that the legal text has arelatively clear and definite meaning. In legal practice, however, it often happensthat the arguments do not seem to work together and make it possible to discovertwo or even more meanings of a legal text. In the event of a collision betweenthe arguments, the argument of purpose (teleological argument) carries specialweight. It is generally accepted in theory and legal practice that in such a situation,among several linguistically possible solutions, the one best corresponding to thepurpose of the legal rule has to be chosen. A necessary condition is, of course,that this is not the purpose that the interpreter presupposes or even desires, butthat this is a purpose that is already expressed by the legal text or which canbe understood from the text and its teleological context to a relatively (i.e.sufficiently) defined extent.V The Importance of Legal PrinciplesThe limits and the orientation of constitutional possibilities are alsodetermined by the legal principles that have already been mentioned severaltimes. In positive-law theory and in legal practice legal principles are often notsufficiently observed. For many the main legal guideline is still the legal rule(for some, even just the ”legal regulation”, ”legal provision”, ”constitutionalprovision”, ”article” of constitution, etc.) and not also the legal principle, thoughboth legal guidelines are closely connected to each other: rules without principles

182Marijan Pavčnikwould lose their direction (as well as their inner substance) and thereby fossilize,principles without rules would lose their variety with regard to content (as wellas their foreseeability and the firmness of their meaning), which would result inunprincipled and arbitrary legal adjudication. In short, the law is a system oflegal principles and legal rules and within this whole there are differences thathave to be considered.For instance, the following differences are important for the interpretationof the constitution. It is in the nature of legal principles that they are valuecriteria put into effect by legal rules. The constitution-maker and the legislatureoperationalize the constitutional principles: the former does it within theconstitution itself, which is a system of constitutional principles and rules, andthe latter does it by statutes which, with regard to their content, are subordinateto constitutional principles and constitutional rules. The legislature’s field ofdecision making is very broad. As regards legal principles, it reaches from alower limit, which already entails that a statutory rule is in conflict with aconstitutional principle (e.g. with the principle of a state governed by the rule oflaw or with the principle of a social state) to an upper limit, which can be ashigh as possible (e.g. the Disability Insurance Act may encompass a very highdegree of social values). Actually, the upper limit is an optimum that can neverbe reached 10 .Legal principles are characterized by a high degree of abstractness. Theabstractness is so high that neither all cases to which the legal principles refer canbe foreseen in advance, nor can it be said in advance to what extent individualprinciples should be binding for concrete life cases. In a concrete case it canhappen that for the relevant factual elements several principles are applied atthe same time (though with a different degree of intensity, which colours differentlegal principles to such an extent that they are not mutually exclusive). In aconcrete case the court can decide to exclude one or several principles if someother principle proves to be stronger (e.g. the right to reverence, which is anelement of the right to privacy, has priority over freedom of expression).In the German constitutional-court practice the ”Lebach judgement”caused lively debate. In this judgement the court gave priority to the protectionof personality over freedom of expression (information). A documentaryshowed how four persons were killed because of the theft of some weapons. Theconvicted person, who aided and abetted the felony, was named several times in10See: Alexy Robert: Theorie der Grundrechte. Frankfurt/Main 1986, pp. 75-76

Constitutional Interpretation 183the film and his picture was shown as well. At the time when the documentaryshould have been televised he was due to be released from prison. If the filmhad been televised, his resocialization would have been endangered. The regularcourts did not substantiate his claim that the documentary should not betelevised. In the proceedings of his constitutional complaint this was done bythe Constitutional Court. It evaluated the opposing rights as principles and wasof the opinion that, in view of the circumstances of the case, such an intensiveinvasion of the protection of personality would take place that the freedom ofexpression (information) must give way to the protection of personality 11 .A peculiarity of basic (human) rights is that each of them is based on asuitable principle it operationalizes as a legal rule (right). If two rights are inconflict, first a conflict of two principles arises (e.g. a conflict between theprotection of personality and freedom of expression). It depends on the natureof the principles and on the characteristics of the life case whether the twoprinciples can co-exist (in any proportion) or whether one of them must giveway to the other. Behind a conflict of two rights another, even stronger conflicttakes place, namely of two principles that make it possible to arrive at a legaldecision. Here we are dealing with the doctrine that human rights and basicfreedoms are only limited by (those) rights of others that are mutually limitablein view of legal principles, and not by the rights of others that are, in view oflegal principles, evidently weaker than another (stronger) right.At first glance it seems that the situation in the latter case is the same aswhen choosing among several legal rules in order to solve a concrete life case.The basic difference lies in the circumstance that in choosing among severalpossible rules, more emphasis is placed on the comparison of the factual andnormative constituent elements, whereas in choosing between two or moreprinciples more weight is given to the valuation itself. Also in the former casevaluation, possibly even important valuation takes place, yet to an extent that isless intensive than with legal principles. In both cases we finally subsume anddeduce legal consequences; in the case of legal rules the interpretation path isusually shorter and less complex, whereas with legal principles the interpretationprocedure is generally more prolonged and more complex. In either case thedecision is only possible when the rule/principle is chosen and when at thesame time its meaning however unpretentious it may be is accepted.11BVerfGE 35, 202, Cf: Koch Hans-Joachin, Rüssmann Helmut: Juristische Begründungslehre,1982, pp. 98 ff: Alexy Robert: Theorie der Grundrechte. Frankfurt/Main 1986, pp. 84 ff

184Marijan PavčnikVI Mode of ApplicationIt is in the nature of the legal (also constitutional) understanding of legaltexts that one can understand them differently than the constitution-framers. Theunderstanding of a legal (constitutional) text is always a part of correspondingbroader and narrower contexts, and the interpreter himself is also a part ofthese contexts. The broader context corresponds to the historical and culturaltradition and to the time of activity, the narrower context is of a more legalnature and is co-determined by the constitutional and the entire state-laworders, by the dominant political ideology and values, by legal theory and legaldogmatics, by the education of lawyers, and the manner of legal thinking (bothare important elements of the lawyers’ pre-understanding), by the court andconstitutional-court practice, and finally by the concrete case that gave rise tothe interpretation.The fact that a legal text (the constitution) can be wiser than its authorand the interpreter wiser than both of them 12 is not bad in itself. It is simply aproperty of understanding, which is a never finished process and is thus nevergiven in advance as a closely rounded fact. Any understanding of a legal text is,as has already been stated, caused by concrete life cases (the case can also be thetext of a statute that has to be in conformity with the constitution). Also Gadamer’slegal hermeneutics pays attention to the mode of application: ”The juristunderstands the meaning of the law from the present case and for the sake ofthis present case” 13 . It is characteristic that the application is no laterapplication of a given generality, which was initially understood in itself, to agiven case, but the application is only the real understanding of the generalityitself, which the given text represents for us 14 . Furthermore: ”The judge whoadapts the transmitted law to the needs of the present is undoubtedly seeking to12Radbruch Gustav: Rechtsphilosophie. Studienausgabe. Ralf Dreier and Stanley L. Paulson(eds) Heidelberg 1999, pp. 10713Gadamer Hans-Georg: Truth and Method. London, New York 2004., pp. 322, [”Der Juristfasst den Sinn des Gesetzes von dem gegebenen Fall her und um dieses gegebenen Galleswillen”,Gadamer Hans-Georg: Wahrheit und Metode, 6 th edition, Tübingen, 1990, pp. 331.]14Gadamer Hans-Georg: Truth and Method. London, New York 2004, pp. 336, [”Applikationist keine nachträgliche Andwendung von etwas gegebenem Allgemein, das zunächts in sichverstanden würde, auf einen konkreten Fall, sondern ist erst das wirkliche Verständnis desAllgemeinen selbst, das der gegebene Text für uns ist”, Gadamer Hans-Georg: Wahrheit undMetode, 6 th edition , Tübingen, 1990, pp. 346.]

Constitutional Interpretation 185perform a practical task. (...) The judge seeks to be in accord with the ’legal idea’in mediating it with the present” 15 .If one thinks about it, the new understanding of the constitution is notnecessarily better than the previous one, yet it can certainly be a differentunderstanding if the case and the circumstances of the understanding havechanged. It is a special feature of legal understanding that it must remain withinthe framework of the possibilities offered by the constitutional text itself and thatit must – within these limits – look for a solution that is typical for the society asmuch as possible. However, the constitutional text itself cannot guarantee thatthese requirements will be considered (and filled with contents) at all and howthis will be done; if the text is of good quality (with regard to the language andto the thinking), it can pave the way for legal theory and legal practice to be ableto fulfil these requirements.Legal theory has much room to manoeuvre. It can be very important inthe educational as well as in the theoretical field. In the educational field it isimportant whether it contributes to making lawyers capable of independent andproblem-orientated thinking. Problem-orientated legal thinking is responsiblethinking, which each time also requires reasons (arguments). High creativepossibilities can also be found in the field of legal theory (in a broader sense ofthe word). A good understanding of the constitution is always based, inter alia,on appropriate legal theory and on appropriate legal dogmatics.An interpretation of the constitution without considering concreteconstitutional-court cases cannot work. Mutatis mutandis, this is also true of aconstitutional-court practice that is deaf to legal theory. The standard (typus)quality of constitutional rules is sometimes just hinted at in the constitutionitself and can only completely come to life and gain its (possibly new) meaningin contact with concrete cases. Legal adjudication is convincing with regard toits content and legally safe if there can be achieved a dialogue and a suitablecreative tension between a practice that can listen to the views and intentions of thetheory and a theory that knows where the real law is created [cf. e. g. Maunz/Dürig’s Grundgesetz Kommentar (Commentary on the German Constitution)].15Gadamer Hans-Georg: Truth and Method. London, New York 2004., pp. 324, [”Der Richter,welcher das überlieferte Gesetz den Bedürfnissen der Gegenwart anpasst, will gewiss einepraktische Ausgabe lösen. (...) Er sucht dem ’Rechtsgedanken’ des Gesetzes zu entsprechen,indem er es mit der Gegenwart vermittelt”, Gadamer Hans-Georg: Wahrheit und Metode,6 th edition , Tübingen, 1990, pp. 333.]

186Marijan PavčnikA new and different understanding of the constitution is only permissible whenwe have sound (conclusive) arguments for diverging from the establishedconstitutional-court practice, for changing it and/or bringing new nuances into it.VII Links to Other EntriesThe entry Constitutional Interpretation has many links to other entries.The strongest connections include the entries Constitution, Constitutionalism,Judicial Review, Statutory Interpretation, and Methods of Interpretation, and withinthis framework, more broadly connected are the entries on ConstitutionalPrinciples, Constitutional Rights and Constitutional Duties, Constitutional Values,Democracy and Modern Law, Law and Politics, Rule of Law, State, etc. Thoseentries which treat the contents of the constitution and various concepts of howa state should operate are especially connected to this entry.The entry Constitutional Interpretation is focused on the interpretation ofthe constitution as a written (formal legal) act. The entries on ConstitutionalConventions, which are especially characteristic of the United Kingdom, and onthe Constitution of the United States, which due to the interpretative role of theSupreme Court actively contributes to a modern understanding of constitutionalityand the rule of law, both deserve separate treatment. The item ConstitutionalInterpretation in the UK and USA is an entry of special importance as well.LiteratureAarnio Aulis: Reasoning Judicial Decisions, Rechtsnorm und Rechtswirklichkeit.Festschrift für Werner Krawietz zum 60. Geburtstag. Berlin 1993, pp.643-654.Alexy Robert: Theorie der Grundrechte. Frankfurt/Main 1986.---: Theorie der juristischen Argumentation. 2 nd Edition. Nachwort: Antwortauf einige Kritiker (pp. 399-435). Frankfurt/Main 1991.---: Juristische Interpretation, in: Alexy Robert: Recht, Vernunft, Diskurs. Franfurt/Main 1995, pp. 71-92.Böckenförde Ernst-Wolfgang: Die Methoden der Verfassungsinterpretation –Bestandaufnahme und Kritik, in: NJW, 29 (1976) 46, pp. 2089-2099.

Constitutional Interpretation 187Bobbitt Philip: Constitutional Interpretation, in: Kermit L. Hall (main ed.): TheOxford Companion to the Supreme Court of the United States. New York,Oxford 1992, pp. 183-190.Bogdanor Vernon (ed.): The British Constitution in the Twentieth Century.Oxford 2005.Canaris Claus-Wilhelm: Systemdenken und Systembegriff in der Jurisprudenz.2 nd Edition. Berlin 1983.Dicey A. V.: Introduction to the Study of the Law of the Constitution. 8 th Edition.London 1927.Dreier Ralf: Zur Problematik und Situation der Verfassungsinterpretation (1976),in: Dreier Ralf: Recht-Moral-Ideologie. Frankfurt/Main 1981, pp. 106-145.Dreier Ralf, Schwegmann Friedrich (eds.): Probleme der Verfassungsinterpretation.Baden-Baden 1976.Dworkin Ronald: Law’s Empire. London 1986.---: Taking Rights Seriously. London 1987.Esser Josef: Vorverständnis und Methodenwahl in der Rechtsfindung. 2 nd Edition.Frankfurt/Main 1972.Feteris Eveline T.: Fundamentals of Legal Argumentation. Dordrecht, Boston,London 1999.Gadamer Hans-Georg: Wahrheit und Methode. 6th Edition. Tübingen 1990.---: Truth and Method. London, New York 2004.Hart H. L. A.: The Concept of Law. 2 nd Edition. Oxford 1994.Hassemer Winfried: Juristische Hermeneutik, Archiv für Rechts-und Sozial--philosophie, 72 (1986) 2, pp. 195-212.Heck Philip: Begriffsbildung und Interessenjurisprudenz. Tübingen 1932.Holländer Pavel: Verfassungsrechtliche Auslegung: methodologisches Kopfzerbrechen,in: Sieckmann Jan-R. (ed.) 2005, pp. 15-31.---: Ústavneprávní argumentace (Constitutional Law Argumentation). Praha2003.Isensee Josef, Kirchhof Paul (eds.): Handbuch des Staatsrechts. Band II. Heidelberg1987. Band VII. Heidelberg 1992.Jovičić Miodrag: O ustavu (About the Constitution). Beograd 1977.Kant Immanuel: Kritik der praktischen Vernunft. Suhrkamp: Frankfurt/Main1989.Kelsen Hans: General Theory of Law and State. Cambridge, Massachusetts 1945.Koch Hans-Joachim, Rüβmann Helmut: Juristische Begründungslehre 1982.

188Marijan PavčnikLarenz Karl: Methodenlehre der Rechtswissenschaft. 5th Edition. Berlin, etc.1983. 6 th Edition: 1991.MacCormick Neil D., Summers Robert S. (eds.): Interpreting Statutes. AComparative Study. Aldershot, etc. 1991.Müller Friedrich, Christensen Ralph: Juristische Methodik. 8 th Edition. Berlin 2002.Pavčnik Marijan: Juristisches Verstehen und Entscheiden. Wien, New York1993.Peczenik Aleksander: Scientia Juris. Dordrecht 2005.Radbruch Gustav: Rechtsphilosophie. Studienausgabe. Ralf Dreier and Stanley L.Paulson (eds.). Heidelberg 1999.Savigny Friedrich Karl von: System des heutigen Römischen Rechts. I. Berlin 1940.---: Juristische Methodenlehre (Kollegnachschrift von Jacob Grimm). G.Wesensberg (ed.), Stuttgart 1951.Sieckmann Jan-R. (ed.): Verfassung und Argumentation. Baden-Baden 2005.Sprenger Gerhard: Der Menschen Maβ: der Andere. Gedanken zu Humanitätund Recht, in: Gröschner Rolf, Morlok Martin (ed.): Recht undHumanismus. Baden-Baden 1997, pp. 25-52.Starck Christian: Die Verfassungsauslegung, in: Isensee, Kirchhof (eds.) 1992,pp. 189-229.---: Praxis der Verfassungsauslegung. Baden-Baden 1994.Stelmach Jerzy; Brożek Bartosz: Metody prawnicze. Zakamycze 2004.Summers Robert S.: Statutory Interpretation in the United States, in: MacCormickNeil D., Summers Robert S. (eds.) 1991, pp. 407-459.Winkler Günther: Studien zum Verfassungsrecht. Wien, New York 1991.

2 Slobodan Beljanski, PhDAttorney of Law, Novi Sad, SerbiaPOUND’S CONCEPT OF LAW STANDARDSAbstract: American legal theoretician Roscoe Pound was among the firstto point to the fact that law, in addition to rules, principles and concepts,governs life also by the criterion which we refer to as law standards. We usethem, he believed, in the individualization process while practicing law, whenwe are forced to trust experience and recourse to intuition. By criticizingrealistic radicalism, Pound defined law standards as judgments having a relativecharacter, based on common sense and moral ponderation.In his next phase, Pound, without abandoning the basic postulate that lawstandards belong to the application and enforcement of law, notices that theirfunction cannot be singled out from the field of law creation and that their contentcannot be deprived of ideals. Norms are part of the corpus of competent directivesfor decision-making. However, having in mind that their starting points areaccepted ideals, a procedure for reaching such ideals and methods of their use is bytheir character of legislative nature. In such a way, interpretation in law starts to beof use to creation while passing a judgment to setting goals based on ethics.In this paper the author analyses Pound’s postulates and concludes thatdisregarding the fact that his idea of law standards cannot be identified withcontemporary meaning of this phenomenon, in things most closely linked withreality and to which answers can be given only under shadow of consistentrelativism, Pound presents us with the absolute and the contradiction ofmetaphysics. The metaphysical dimension of this concept comes from itsformal a priori nature: it is taken in advance that it includes only maxims withpotential justice and universality. This concept simultaneously qualifies legalnorm as appropriate and desirable and quantifies critical measure of itsacceptable universality. Metaphysics of law standards is an expression of ourincompletion of law and unattainability of justice.Key words: law standards, moral ponderation, relativism, ideals, metaphysics

190Petar TeofilovićThe frequent and wide usage of the concept law standard is, to say theleast, different from its meaning: it is neither uniform enough to make law itsbasic feature, nor is it specific enough to use it to identify law. Law standard,namely, equally includes customs, generally accepted rules, principal norms ofpositive law and systems of juristic interpretation.The original use of this concept in the contemporary theory referred tothe juristic interpretation. Law standards were used only as a methodicalphenomenon in the ”technique of law”, and not as a source of law. That is whythey were deduced to a judge’s decision in the service of legality. One of thesupporters of this interpretation claims that, in using standards and directives,the judge does not depart from the principle of legality, he applies legal conceptsin a way which corresponds to their typological nature. 1 Such comprehension oflaw standards would be more precisely termed as standard ways of interpretation.American law theoretician Roscoe Pound is said to be among the first topoint to the fact that law, in addition to rules, principles and concepts, governsrelationships in a society by measures we call law standards. We use them, hewrote, in the individualization process when practicing law, when we are forcedto rely on our experience and resort to intuition. This approach has led to theconclusion that law standards become prominent only when using discretionalauthorities and assessing circumstances which are characteristic of individualcases.In his criticism of realistic radicalism, Pound has ascribed three featuresto law standards: they contain a moral judgment about people’s behavior,instead of exact legal knowledge, they demand the judgment of common sense,and they are relative regarding place, time and circumstances. 2 It is easy to seethat Pound’s categorization is tautological and conclusive. Each of the threelisted features is deduced to the level of the same class and explanation, whileevery latter feature follows from the former. That is actually why Pound claimsonly that law standards are the judgments of relative character, based on commonsense, intuition and moral judgment. His assertion is the consequence of anunderstanding that moral judgment belongs to the realm of common sense, that1Frank, S., Standardi i direktive u kaznenom pravu, Arhiv, 5-6/1939, p. 423-432.2Pound, R., Introduction to the Philosophy of Law, New Haven, 1961, cited in: Paund, R.,Uvod u filozofiju prava, Podgorica, 1996. transl. by N. S. Krznarić, p. 101-102; Jurisprudence,cited in: Paund, R., Jurisprudencija, I, Beograd – Podgorica, 2000, transl. by Đ. Krstić, p. 360.

The Contribution of the US Jurisprudence to Freedom... 191common sense relies primarily on intuition, and that intuition operates in thesphere of relative values.Whether because he realized this weakness or because of the unfinishednature of his assumptions, Pound did not ascribe any particular credits to hisname regarding the introduction of law standards in the systematics of law. Onthe contrary, he stressed that law standards appeared even in Roman law andnatural law. That is because he referred to Cicero’s attitude that the decision onactiones bonae fidei, because of too much freedom allowed by their interpretations,should be given to judges with firm beliefs and strong personalities.Besides that, Pound’s usage of this concept is not devoid of contradictions.How can anything standard be deduced from a string of conditional accidencesconnected with our immediate comprehension and more or less arbitrary senseof values? Isn’t intuitive opinion a paradox? Aren’t standardized views of theworld, based on any known eschatology, merely castles in the sand? Let us justremember a bitter remark of a contemporary thinker that none of the essentialphilosophical questions have been answered up to now and that no standards inour civilization give way to realists over nominalists, critics over supporters of thesemantic concepts of truth. How is it then possible to rely on ”standards” whichcreate judges’ decisions and on which people’s destinies directly depend on?Although he himself does not resort to such division, we could say thatPound determines law standards in two ways. In the material sense he considersthem to be standards of behavior proscribed by the law. In the processual sensehe regards them as part of the corpus of relevant points in decision making. 3 Inboth cases the stress lies on the parameters of value. Whether this is about thecriteria of behavior or the criteria of decision making, law standards have arisenout of our liberty and are directed against that liberty. Originating in the realmof free will, where we are allowed to act or decide either this way or that,standards are the result of the idea that in certain judgments a new limitingpattern should be established, a pattern which would refer us or direct us morestrongly on how to behave or decide in certain situations. If without hurting thelaw we can act and decide in more ways than one, why is it still better to act anddecide in that one certain way? What prompts us to that? What are our guidelinesin making that choice?The search for answers to these questions is as old as the theory itself.Even Aristotle considered that there is no comprehensive law and that is why3Ibid., p. 398.

192Petar Teofilovićthe essence of justice is in compensating the generality or incompleteness of lawwith making special decisions – ψήφισμα. 4 Even Pascal, who represented aseemingly opposite attitude that nothing is so wrong as laws which correctmistakes, stuck to Aristotle’s postulate that the one who adjusts laws withreference to equity actually abides to the justice he imagines. 5Things are more or less clear regarding norms with an immediatediscretional authority, such as the one concerning responsibility based on equity.In obligational law, for example, it is proscribed that, when the interests ofequity demand so, the court will decide that the damage shall be compensatedby the damaging party who is not responsible, or the parent who bears noresponsibility for the damage inflicted by a minor, having in mind the materialresources of the damaged and the person whose burden the damage should be.Far more complex are the norms which do not invoke only one principle,but also contain a reflexive disjunction of two or more principles.In the contemporary accusatory criminal procedure it is the law standardthat the prosecutor must prove that the factual and legal basis of the culpabilityare beyond any reasonable doubt and that the court in case of any doubt willrule in favor of the defendant. The law standard, however, as a supporter ofPound’s interpretation would say, is not only in the initial goal of the rule onthe burden of evidence, but also in the final aspects of delimiting suspicion andconviction, which means that in the method of conclusion which precedesdecision making and which helps form the awareness of what makes a certaincontent beyond any reasonable doubt or, which is one step further (althoughlogic tells us it is one and the same), which helps form the awareness that acertain content has not progressed further than reasonable doubt.In contemporary law standard is also the right of the defendant to have alawyer. This right, although absolute, from the aspect of the one it is intended for isneither equally available nor equally desirable. There are defendants who considerthat they need the help of a competent person, but do not meet the conditionsnecessary for the court to appoint a lawyer to defend them or do not have themeans to hire a lawyer and pay the costs. There are also defendants who do notwant a lawyer, although it is the court’s duty to appoint them one. Our Law onCriminal Procedure proscribes that in the former case, except in case of the lightestcriminal offences, the court will appoint a defense lawyer following the demand of4Aristotle, Nicomachean Ethics, 1137b.5Pascal, B., Pensées, 294.

The Contribution of the US Jurisprudence to Freedom... 193the defendant if it is in the interest of justice (article 72, paragraph 1, Law onCriminal Procedure). In the latter case the only solution our Law offers in theimposition of a defense lawyer, despite the fact that the imposition of the rightwhich is rejected is always unjust to the recipient himself. The standard of right tothe formal defense, therefore, includes the principles for abstractly conditioned, yetdeterminable exceptions to the rule, or the exceptions to the exceptions whichultimately lead to the negation of the right itself. The Hague Tribunal had to createsolutions for the defendants who rejected a lawyer and thusly created a standard onthe right and standard on the aberration of the right.The right to privacy, the freedom of religion, the freedom of expression,the prohibition of discrimination and the right to education are material lawstandards of the modern civilization. When they are conflicted, Pound’sformula may be of use. A typical example is a recent decision of the EuropeanCourt in the Sahin case. In March 1998 Leila Sahin was banned from taking anexam and attending classes in the Medical School in Istanbul because she didnot want to stop wearing a headscarf. The ban was based on an earlier order ofdeputy principal of University, in accordance with the authority proscribed bythe Turkish law and confirmed practice of the Constitutional Court of Turkey,which bans male students with beards and female students with headscarvesfrom attending lectures, courses and exercise classes. In the verdict of June 292004 the Council of the European Court ruled that there was no violation ofArticle 9 and that in connection with this Act there is no violation of Articles 8and 10 of the European Convention. Referring to the fact that this is a problemwhich concerns the questions of general importance, but is also of significancefor the interpretation and application of the Convention, Leila Sahin used theright from Article 43 of the European Convention and demanded that the casebe brought to the Grand Chamber. Although they accepted that the prohibition isa limitation of the rights to the freedom of religion and to education, the GrandChamber concluded that there was no breach of the European Convention:the intervention of Turkish authorities was in the domain of the rights of acontracting country to free assessment, in which case the essence of the right toeducation was not harmed and in the intervention of Turkish authorities in one’sprivate life, freedom of convictions and freedom of expression was predictableand proportional to the justified aims of a democratic society to protect thefreedoms and rights of other people.As it turns out, in all of this the border of our freedom is directed atideals: the ideal of justice, the ideal of the essence of law, the ideal of causes of a

194Petar Teofilovićdemocratic society. At the same time the creation and interpretation of lawbecome inseparable because in law there is almost no way of creating andinterpreting which, to use Fuller’s words, can be free of aspiration or innermorality.Pound himself will later, without abandoning the essential principle thatlaw standards belong to the application and implementation of law, touch upona thesis that their function cannot be separated from the domain of law creationand their content cannot be devoid of ideals. 6 All those who create or apply laware referred to an idealized picture of the social order which, as a basic reality,reflects legal institutions, legal rules and legal education. 7 In law there is acorpus of accepted and authoritative ideals. This element is deduced to animage of social order of a certain time and place, encompasses a law traditioncharacteristic of that order and, consequently, of the purpose and aim of thesocial control which represent the basic frames of interpretation and applicationof regulations and especially law standards. 8 Courts and individual lawyers inany developed legal system have always acted on the basis of something higherthan a formal whole of current regulations. Even a lawyer analyst, Poundconsidered, in practice introduces into his scientific ponderation an idealpattern and thusly sets an ideal plan. When such ideal images acquire a certainconstancy in the court tradition, they become part of law, just like regulations.Actually, they give to regulations their living content and in difficult cases theybecome a final basis for the selection, shaping and application of legal materialin decision making. 9Ross determined this viewpoint as jurisprudential idealism. In this type ofidealism, he ascertained, the knowledge of law is simultaneously based on theouter experience and on a priori judgment. Law is a phenomenon of reality inthat it is created by people and in that it depends on the exterior factors ofauthority. However, in order for this fact to become valid, it must be given andundeductible by immediate intuition of sense and by the set demand. Law isboth a phenomenon and a validity, unlike moral, which is pure validity. 106Pound, R., Jurisprudence, cited in Paund, R., Jurisprudencija, II, p. 398 ff; Ideal Element inLaw, Indianapolis, 2002, p. 31, 371 ff.7Pound, R., Interpretations of Legal History, New York, 1923, p. 5.8Pound, R., Jurisprudence, cited in Paund, R., Jurisprudencija, I, p. 354.9Ibid. I, p. 357 ff10Ross, A., On Law and Justice, London, 1958, cited in Ros, A., Pravo i pravda, Beograd, 1996,transl. by M. Ivović, p. 89.

The Contribution of the US Jurisprudence to Freedom... 195That is why law is never complete or, to be more precise, that is why inlaw there are always things that cannot be reached. It is an expression of animperfect anthropogenous desire for perfection.In his considerations of the phenomenology of law Alexandre Kojévethought this is about a desire directed at another desire, about an anthropogenousdesire which establishes a virtual man and his potentiality, which is the reasonhe marked it as the source of the idea of justice, in case this desire contains adesire to confess. 11 In this sense we have not gone far from Aristotle’s postulateof the justice we imagine. Neither does Kant, when he finds the basis ofcategorical imperative in the principle which is the source of the form of actionwhose essential good consists of disposition and not of motives and effects. Hetherefore directly says that everyone is free in a practical sense only if they actunder the idea of freedom and that freedom is just an idea of the mind whoseobjective reality is always in itself doubtful. 12 The same is the source of Jung’sunderstanding that the unattainablity of an ideal personality, as a full realizationof the whole of our being, does not undermine that ideal because ideals are notaims but guidelines. 13Pound thought that law is a social institution which helps order humanbehavior within a politically organized society with the aim and in a manner tosacrifice as little as possible to satisfy as many needs, demands and expectationsas possible. This, in his opinion, can be achieved through social control orconstant ”social engineering” – constant, more complete and more efficienteradication of destruction and conflicts which happen among people when theyenjoy the comforts of everyday life. 14It may be surprising at a first glance that these viewpoints were notcriticized by the greatest critic of utopian engineering, Carl Popper. On thecontrary, Popper commended Pound, not only on creating the concept of ”socialengineering”, 15 but also on the closeness of Pound’s viewpoints to his own11Kojève, A., Esquisse d΄une phénomenologie du droit, Paris, 1981, cited in Kožev, A.,Fenomenologija prava, Beograd, 1984, transl. by Z. Stojanović, p. 250 ff.12Kant, I., Grundlinien zur Metaphysik der Sitten, cited in Kant, I., Zasnivanje metafizikemorala, Beograd, 1981, transl. by D. Basta, p. 55, 99, 110.13Jung, C. G., Gesammelte Werke, Olten, 1971 (Jung, K. G., Duh i život, Novi Sad, 1977,transl. by D. and P. Milekić, p. 260.)14Pound, R., Introduction to the Philosophy of Law, op. cit. p. 89-90.15Popper thought that Pound was the first to use the expression ”social engineering” in theIntroduction to the Philosophy of Law, which is seen in the following text: ”As for the present-

196Petar Teofilovićwork in the domain of social ”step by step engineering”. 16 Unlike utopianengineering where before taking any practical action, an ultimate political aimor ”Ideal State” is formed, a ”step by step engineer” will rather acquire a methodfor detection and fight against greatest and most urgent evils in a society than amethod for detection and fight for his greatest and ultimate good. 17 And really,Pound very early warned about the tendency of resorting to the arbitrary powerof the government and using ”justice without law”, where executive and evenlegislative ”justice” is abused. 18Trying to find a compromise formula for defining the concept of law, Poundassessed that the union of different conceptions is possible with the aid of the ideaof social control. Law is, he concludes, the control of each of us through thepressure of people close to us, the control which is both unconscious andinvoluntary and immediate and directed. This pressure, more and more organizedand directed, establishes and maintains our mastering of human nature. Theprovince of jurisprudence is social control through a systematic application of theforce of a politically organized society. This implies the existence of a legal systemwhich comprises valid material for the action of courts and existence of court andadministrative procedure that allows reasonable prediction. 19-day goals, I have an inclination in the history of law to constantly see a wider recognitionand satisfaction of human needs, demands or desires through social control, a much morecomprehensive and efficient provision of social interests, a constant and more complete andmore efficient eradication of devastation and prevention of conflicts in man’s enjoyment ofthe pleasures of life – in one word a constant and much more efficient social engineering”(Pound, R., ibid, p. 90).16Popper finds that what he calles, relying on Pound, ”social engineering” corresponds toHayek’s suggestion that within the ”step by step engineering” the dire necessity is theestablishment of the legal frame (Popper, K., The Open Society and Its Enemies, Princeton,New Yersey, 1971, cited in Poper, K., Otvoreno društvo i njegovi neprijatelji, Beograd, 1993,transl. by B. Gligorić, I, p. 377), (Hayek, F. A., Law, Legislation and Liberty, cited in Hajek,F. A., Pravo, zakonodavstvo i sloboda, Beograd – Podgorica, 2002, transl. by B. Gligorić, p. 157).Hayek himself says, however, that he restists to the expression which marks a technologicalproblem of the reconstruction based on the total knowledge about physical data, the expressionused here to mark an experitmental attempt to improve the functioning of a part, regardless ofhow the structural whole is concieved (Hajek, F. A., Pravo, zakonodavstvo i sloboda, Beograd– Podgorica, 2002, translation B. Gligorić (Hayek, F. A., Law, Legislation and Liberty), p. 157).17Popper, K., op. cit. I, p. 209-210.18Pound, R., The Spirit of the Common Law, Boston, 1921, p. 72.19Pound, R., Jurisprudence, op. cit., I, p. 13.

The Contribution of the US Jurisprudence to Freedom... 197Although he referred to Alf Ross, in this definition it is hard to findRoss’s determination. Ross himself did not show a similar kindness. Rather, hegroups Pound alongside Stone, Keaton and Hochfeld as creators of eclecticdefinitions, who include logical-analytical, ethical and sociological problemsinto jurisprudence. 20 Reasonable prediction needs not only a stable and coherentprocess law, but also the same kind of law which makes the valid material fordecision making. In addition, the reach of law are not just decisions of a courtor an administrative body, but also the arrangement of relationships whichprecede these decisions.Standards are part of the corpus of valid guidelines in decision making,but since their starting points are accepted ideals, the procedure of reachingsuch ideals and the way they are used are in their character of legislative nature.Since the interpretation enters the sphere of law creation, the judicial functionintertwines with legislative.Pound’s contemporary and associate for a while, Hans Kelsen, had adifferent view of this. In responding to Karl Schmit’s accusations that he is ”oneof the zealots of blind normativism” and supporters of normativist and formalisticlogic, Kelsen returned to his old thesis that the identification of law and justiceis a political and not a scientific tendency which aims at justifying the given socialorder. The phenomenon Pound calls law standards is nothing else to Kelsen buta legally non-binding postulate which exists only to the extent we allow freeevaluation. 21 Kelsen called the field of free evaluation an intentional indeterminacyof the act of law application, the indeterminacy contained in the intention of20Ross, A., On Law and Justice, London, 1958, cited in Ros, A., Pravo i pravda, Beograd, 1996,transl. by M. Ivović, p. 51.21”If we are talking about norms that have not been positivized”, Kelsen wrote, ”but should,since they represent ’justice’, become positive law (although the defenders of these principlesin a more or less clear way already consider them to be ’law’), then there is nothing else butlegally non-binding postulates (which are truly just an expression of group interests), directedat the bodies which have been entrusted with the creation of law. And not just legislativebodies... but also lower degree legislative bodies which, however, have a decreased possibilityto the same extent as their function bears the character of law application, but which stillexists, and to the same extent as free evaluation; therefore, with the judicial system andmanagement when it is necessary to choose among several possibilities of interpretation”(Kelzen, H., Wesen und Entwicklung der Staatsgerichtsbarkeit, and Wer soll der Hűter derVerfassung sein?, cited in: Kelzen, H., Ko treba da bude čuvar ustava, in the book Norma iodluka – Karl Šmit i njegovi kritičari, Beograd, 2001, translation by D. Basta, p. 273).

198Petar Teofilovićthe one who brings regulations to continue the process of determination from ageneral norm to an individual norm. Having in mind that the attempt to solvethe conflict between will and expression is always faced with failure and that allmethods of interpretation lead to only one possible and never to the only correctresult, then if there is a desire to limit the authority of courts and thusly thepolitical character of their function, the maneuver space for free evaluation thatlaws allow for their application must be as narrow as possible. 22The introduction of ideals into law, which also means the inosculation oflaw and moral principles, brings us to the doorstep of metaphysics. However,we do not have in mind the metaphysics within the idea of a ”historical God”,Austin’s notion of divine orders which we become aware of through revelationor an index of usefulness, or the idea Borges played with when he ”proved” thatGod exists because only he knows the exact number of birds that we saw duringa vision we had when our eyes were closed (Argumentum ornithologicum). Whatwe have in mind is an attempt to overcome a failure in the rational oppositionto the demand of utilitarists to draw a strict line between the law as it is and thelaw as it should be. Even those who invested a lot of effort into this discussionhave faced the conclusion that blurring the distinction between law and moralsleads to disputing everything consistent in the legal rule and putting completeand clear rules on the same level of questioning as the problems whose solutionsdepend on free evaluation. 23 The result is a confession that the attitude ofutilitarists has both a moral and intellectual value as well as a dim appeal thatthey should, together with utilitarists, acknowledge that laws make the law, butthat they are sometimes too bad to be abided by. 2422Kelsen, H., Reine Rechtslehre, Wien, 1992, cited in Kelzen, H., Čista teorija prava, Beograd,2000, transl. by D. Basta, p. 267-269; Kelsen, H., Wesen und Entwicklung der Staatsgerichtsbarkeit,and Wer soll der Hűter der Verfassung sein?, cited in: Kelzen, H., Ko treba da bude čuvarustava, in the book Norma i odluka – Karl Šmit i njegovi kritičari, Beograd, 2001, translationby D. Basta, p. 272-273.23After a detailed analysis, Hart has concluded that the dimming of this difference by amysterious claim about the existence of and identity between law as it is and law as it shouldbe means suggesting that all legal questions are fundamental, both those from a half-shadow(penumbra) and those which are created within the hard core of rules with an establishedmeaning (Hart, H. L. A., Positivism and the Separation of Law and Morals, in Essays inJurisprudence and Philosophy, Oxford, Clarendon Press, 1983, cited in Hart, H. L. A., Oglediiz filozofije prava, Beograd, 2003, transl. by S. Stepanović Todorović, p. 71, 80).24Ibid., p. 87.

The Contribution of the US Jurisprudence to Freedom... 199Resorting to a concept of metaphysics, already quite compromised in law,we relied on Kant’s understanding of metaphysics as a ”pure” idea (this time theidea of law), limited to the objects of reason and deduced from the a prioriprinciple. 25 Is such an approach at all possible today? And is it possible when itcomes to law standards?From Pound’s learning we could conclude that he answers positively or,if asked so, would. In spotting unmistakably the effect of the metaphysical idealin the history of law, especially in the 19 th century when, staying beyond thereach of legislative innovation, people idealized the principles of general lawguaranteed in bills of rights 26 , he considered that such idealized images, uponacquiring a certain level of stability in court and professional tradition, just likeregulations, become part of law, that in the most difficult cases, when solvingproblematic situations, they become key guidelines for choosing, shapingand applying law material, and that making up theories used to banish suchphenomena from the law is a self-delusion, a futile fight against the phenomenonof the greatest importance for the work of the judicial system. 27If we go one step back from the procedure of interpretation to themanner of experiencing and understanding a formed set of facts, we shall face acondition that Toynbee marked as the immeasurability of life and law, theimmeasurability that almost leads us to give up on trying to reconcile law andjustice, legal norm and demands of morals. The effort to make law impersonalcan be fruitful only at a price of treating human souls, which are individual andunique, as mass products and standardized inhuman objects. On the otherhand, a complete accommodation of law to personal circumstances would leadto a regretful distancing from the impartiality which is the essence of humanjustice. 28 A similar aporia is the basis of Dilthey’s skepticism – a conviction thatin understanding there is something irrational that cannot be presented in anylogical patterns 29 , as well as of Gadamer’s postulate about the essentialconnection of juristic hermeneutics and legal dogmatics, a connection where25Kant, I., op. cit., p. 16.26Pound, R., Jurisprudence, op. cit., I, p. 357.27Ibid. I, p. 358, Pound, R., Law and Morals, Chapel Hill, 1926.28Toynbee, A., A Study of History, London, cited in Tojnbi, A., Proučavanje istorije, Beograd,1971, II, transl. by M. Lukić, p. 71.29Dilthey, W., Der Aufbau der geschichtlichen Welt in den Geisteswissenschaften, Gőttingen,1973, cited in Diltaj, V., Izgradnja istorijskog sveta u duhovnim naukama, Beograd, 1980,transl. by D. Guteša, p. 279.

200Petar Teofilovićprimacy belongs to hermeneutics. When Gadamer stresses the unattainability ofthe theory of complete legal dogmatics and the necessity of a juristicintermediation in which to understand and interpret the law is to know andacknowledge its valid sense (geltenden Sinn), then in the valid sense there isalways much more than there is in the law. 30 In any case, Pound also noticesthe failure of attempts to remove a degree of indeterminacy from the normswith a detailed and authoritatively set content, where this indeterminacy ischaracteristic of law standards. 31Continuing in Pound’s footsteps, we could conclude that the concept oflaw standard refers to that which belongs to an ideal image of law ex aequo etbono, which has in its elementary shape established more as an idea than as alegal fact, and what could represent a minimum of universality of a legal rule,independent of whether is remains in the domain of theory, if it is a clause in acontract, or if it is part of a positive internal or international law. A metaphysicaldimension of this concept arises out of its formal a priori nature: it is taken inadvance that it encompasses only the maxims with the potency of equity anduniversality. Its a priori nature is based on the projection of generality, onthe super-empirical capacity of the mind to set synthetic demands and on thenecessity for such demands to be set, even when we are aware that they arebeyond reasonable reach, or just because they are such, for those who do notreconcile with this sort of illusion, still beyond reasonable reach. This conceptsimultaneously qualifies legal rule as purposeful and desirable and quantifies acritical measure of its acceptable generality. At the same time we must not befooled by the fact that the ideal we strive for is the result of sublimation of legalexperience and knowledge, the advancement of individual and relational normsinto rules that can be generalized, absolutized and produced into a paradigm.The experience brought into the projections of law standards comes out of thedissatisfaction and hope. The metaphysics of law standards is an expression ofour unreconciliation with the incompleteness of law and unattainability of justice.It is concomitantly an eternal quest for a firm ground, for creating general andlasting criteria connected with moral purposes, in the exact place where lawembraces relativity and openness, leaving room for a dynamic adjustment tocircumstances.30Gadamer, H. G., Gesmammelte Werke, Bd. 1. Hermeneutik I, Tűbingen, 1986, p. 335.31Pound, R., Introduction to the Philosophy of Law, op. cit. p. 103.

The Contribution of the US Jurisprudence to Freedom... 201ReferencesAristotle, Nicomachean EthicsGadamer, H. G., Gesmammelte Werke, Bd. 1. Hermeneutik I, Tűbingen, 1986.Dilthey, W., Der Aufbau der geschichtlichen Welt in den Geisteswissenschaften,Gőttingen, 1973 (Diltaj, V., Izgradnja istorijskog sveta u duhovnim naukama,Beograd, 1980, transl. by D. Guteša)Frank, S., Standardi i direktive u kaznenom pravu, Arhiv, 5-6/1939, pp. 423-432.Hayek, F. A., Law, Legislation and Liberty (Hajek, F. A., Pravo, zakonodavstvo isloboda, Beograd – Podgorica, 2002, translation by B. Gligorić)Hart, H. L. A., Positivism and the Separation of Law and Morals, in Essays inJurisprudence and Philosophy, Oxford, Clarendon Press, 1983 (in: Oglediiz filozofije prava, Beograd, 2003, transl. by S. Stepanović Todorović)Jung, C, G., Gesammelte Werke, Olten, 1971 (Jung, K., Duh i život, Novi Sad,1977, transl. by D. and P. Milekić)Kant, I., Grundlinien zur Metaphysik der Sitten (Kant, I., Zasnivanje metafizikemorala, Beograd, 1981, transl. by D. Basta)Kelsen, H., Reine Rechtlehre, Wien, 1992 (Kelzen, H., Čista teorija prava,Beograd, 2000, transl. by D. Basta)Kelzen, H., Wesen und Entwicklung der Staatsgerichtsbarkeit, and Wer soll derHűter der Verfassung sein? (cited in: Kelzen, H., Ko treba da bude čuvarustava, in the book Norma i odluka – Karl Šmit i njegovi kritičari, Beograd,2001, transl. by D. Basta)Kojève, A., Esquisse d΄une phénomenologie du droit, Paris, 1981 (Kožev, A.,Fenomenologija prava, Beograd, 1984, transl. by Z. Stojanović)Pascal, B., Pensees (Paskal, B., Misli, Beograd, 1965, trans. by J. and M. Ibrovac)Popper, K., The Open Society and Its Enemies, Princeton, New Jersey, 1971 Poper,K., Otvoreno društvo i njegovi neprijatelji, Beograd, 1993, I–II, transl. byB. Gligorić)Pound, R., Ideal Element in Law, Indianapolis, 2002.Pound, R., Interpretations of Legal History, New York, 1923.Pound, R., Introduction to the Philosophy of Law, New Haven, 1961 (Paund, R.,Uvod u filozofiju prava, Podgorica, 1996. transl. by N. S. Krznarić)Pound, R., Jurisprudence (Paund, R., Jurisprudencija, Beograd – Podgorica, 2000,I–III, transl. by Đ. Krstić)Pound, R., Law and Morals, Chapel Hill, 1926.Pound, R., The Spirit of the Common Law, Boston, 1921.

202Petar TeofilovićPound, R., The Theory of Judicial Decision, Harvard Law Review, IX, 1936.Ross, A., On Law and Justice, London, 1958 (Ros, A., Pravo i pravda, Beograd,1996, transl. by M. Ivović)Toynbee, A., A Study of History, London (Tojnbi, A., Proučavanje istorije,Beograd, 1971, I–II, transl. by M. Lukić)

The Contribution of the US Jurisprudence to Freedom... 2033 Petar Teofilović, SJDProvincial Ombudsman of AP VojvodinaTHE CONTRIBUTION OFTHE US JURISPRUDENCE TO FREEDOMOF EXPRESSION IN THE USA THROUGHTHE DEVELOPMENT OF DEFAMATION LAWI Introductory RemarksFreedom of expression in the USA has the status of a fundamental right,one of the most important ones. Both in theory and in practice it is consideredto be a necessary prerequisite for a full enjoyment of the majority of otherrights, most particularly those belonging to group of political rights, and thusenjoys high level of legal protection. Legal restrictions of this freedom are rare,and are to be submitted to the highest level of scrutiny by the courts in respectof their justifications. Still, there are certain limits beyond which the statementsmade are not permitted. One of them encompasses the cases of defamation ofothers, which is considered to be an abuse of the freedom of expression.The US defamation law (incorporating both slander/libel and insult) 32 ,which constitutes one of the rare exemptions from the general prohibition of theviolation of freedom of expression, consists of the relevant law of 50 memberstates and of the federal state. Besides common law rules and written law32The generic term ”defamation” in common law countries incorporates both slander/libeland insult. The difference between the ”slander” (common defamation), and ”libel” (anaggravated form of defamation, in the continental law usually termed ”defamation committedby the media”, or ”public defamation”) is based on the means used to commit defamation:common defamation is completed using ”transient means” and does not leave permanentconsequences (e.g. defamation committed orrally or by certain gesture), whereas libel as anaggravated form exists when a defamatory statement was made using permanent means(e.g. in writing, or in drawing, or made in the media, etc.). For details see, e.g.: H.C. Black,Black’s Law Dictionary, Note: DEFAMATION, 427 (Bryan A. Garner (ed. in chief), St. Paul,7 th ed., 1999).

204Petar Teofilović(constitution, statutes and by-laws), important source of law is the case-law(judicial decisions) of US state and federal courts. Among them, by far themost important are the decisions of the US Supreme Court about the(un)constitutionality of any legal act, regardless of whether it is a state or federalone. Its interpretations of the constitution presented in those decisions alsoprovide a minimal uniform level of protection of free speech and press in the wholefederation, apart from the differences that may exist between particular states.This article contains a brief summary of the development of the USdefamation law from the establishment of the USA, with the emphasis on thecontemporary US law in this area since the middle of the 20 th century. Some ofthe most important decisions of the US Supreme Court in this area and theireffects are presented in more details, as well as the doctrines that make the basisfor those decisions, since they have played a key role in strengthening theprotection of freedom of expression in the USA. Special attention is paid to twokey issues of the contemporary US law of libel – the standards of liability fordefamation, and the definition of the concept of a ”public person”. Conclusiveremarks contain a resume of the article.II The Development of the US Defamation LawOne can clearly discern two main periods in the development of the USdefamation law so far. The first period, starting with the establishment of firstEnglish colonies in North America and ending in the 1960s, is characterized bythe domination of rules inherited from the English common law. During thattime defamation was primarily a matter of civil law. 33 The emphasis in defamationcases was on the protection of plaintiff’s reputation, and the legal rules favouredthe plaintiff.33Both in common law and in continental law systems defamation can be a tort or a crime.Criminal defamation once had a more prominent role in common law than today,particularly in the practice of the English Star Chamber during the 17 th century. Still, withthe development of the doctrine of defamation as a tort it gradually became primarily amatter of civil law. The criminal defamation is almost extinct today in common lawcountries. On the other hand, in the continental law countries this issue has been treated forcenturies as a matter of criminal law whereas its civil law aspects were lesser developed.However, in the last few decades the tendency to deal with defamation through civil damagesinstead of criminal sanctions may be observed in continental law countries, too.

The Contribution of the US Jurisprudence to Freedom... 205The second period starts in 1960s and is still going on. At that time theSupreme Court, partly because of the strong impact of the human rightsmovement in the USA, adopts an ”activist” approach in its interpretations ofthe First Amendment to the US Constitution which, among others, guaranteesthe freedom of speech and press (hereafter: freedom of expression). Namely, itstarts to base its decisions in this area on a much more liberal doctrine of freedomof expression than before, shifting the stress from the protection of plaintiff’sreputation to the protection of freedom of expression, and gradually developingan original model of legal regulation of defamation. The relevant US SupremeCourt’s decisions on unconstitutionality of restrictions of the freedom ofexpression, that relate to the regime of defamation as well, have introducedsignificant, sometimes even radical novelties into the previous regime in thisarea. Defamation law increasingly becomes a matter of constitutional law, whichled to the development of the so called ”First Amendment Law”. Although stillgrounded in common law rules, the contemporary US defamation law departsnotably from its roots, most importantly because of the doctrines developed inthe practice of US courts.1 First period: From the Colonial Times Until 1960s– Prevalence of Common Law RulesLegal regulation of defamation in the USA has its roots in the Englishcommon law. Some authors point out that there are few areas in which theconnection between the two jurisprudences is more direct than in the area oflibel, adding that accordingly some of the least desirable characteristics of Englishlibel law have been imported into the USA. 34 On the other hand, common law34See Richard Labunski, Libel And The First Amendment, 29 (New Brunswik and London,1989). Among them Labunski mentions the influence of English doctrine that led to thejailing and fining of publishers, enabled interpretation of the First Amendment as allowingsuch practices, and inspired the enactment of the notorious but short-lived Sedition Act of1798. Under that Act, any ”writing, printing, speech or publishing of a false, scandalous ormalicious information against the Government of the USA, its Congress or either of itsHouses, or of the President of the USA, with the intention to defame them, or to exposethem to disregard or contempt of the American people...” was a crime punishable with afine of up to $ 5.000 and a prison of up to 5 years. – see I. Stat. 596 (1798). The formulationwas vague enough to encompass almost every critic of the government. Before the time of

206Petar Teofilovićrules of libel have not been enforced in colonies on the ”new continent” aseagerly as in the UK. Very early some of those rules reflecting the medievalunderstanding of individual’s reputation and its protection and severely limitingfreedom of expression, had been alleviated and departed from.Although Levy clearly states that ”the image of colonial America as a societyin which freedom of expression was cherished is a hallucination of sentimentthat ignores history” 35 , the fact is that the colonial courts were reluctant toapply certain inherited rules of English libel law as it was even during theBritish imperial rule. While there may have been hundreds of trials for seditiouslibel in England during 17 th and 18 th centuries, there were probably not morethan half a dozen of such trials in its colonies in America before theRevolution. 36 The famous Zenger case was the last of its kind decided under theroyal judges, and it has been observed that this case put an end to Court trialsfor seditious libel as a serious threat to printers in the American colonies. 37the Act’s validity expired in 1801, there were 14 cases decided under the Act, and all of themwere decided against the defendants. Its validity had not been extended because of themassive claim of its unconstitutionality by experts and by the public.35Leonard W. Levy, Emergence of a Free Press, 16 (Oxford, 1985). See also Zechariah Chafee Jr.,Free Speech in the United States, 16 (Cambridge, 1941); cf. Schofield, Essays on ConstitutionalLaw and Equity, 521-522 (1922).36Levy, Id. at 17-18.37Harold L. Nelson, Seditious Libel in Colonial America, 3 American Journal of Legal History,164, 160-172 (1959). The Zenger case, decided in 1735, has been praised both as a casewhere the colonial courts made a big departure from particular rules of English libel law,and as the first important victory for freedom of the press in the English colonies of NorthAmerica. John Peter Zenger was a journalist and a publisher of the New York WeeklyJournal, a paper that in a year from its establishment published a number of articles criticalof the policies of Mr Cosby, the royal governor of the colony of New York. In November1734 he was arrested and 10 months later tried for seditious libel, which in common lawwas primarily aimed at protecting the government representatives, against the governor.Under the rules of common law, although many of the articles were contributed by otherjournalists Zenger was legally responsible for their content as publisher; at that time truthwas not a defence, since the mere fact of publication was sufficient to convict the defendantof libel. However, as for the merits of the case his defence attorney A. Hamilton ignored theexisting rules and argued that articles printed in Zenger's weekly were true and thereforecould not be considered libellous. As for the procedural rules, he ignored the judge'sreprimand and, despite existing judicial procedures, argued that the jury, not the judges,should determine the truth of the articles; thus he asked the jury to proclaim his client notguilty for seditious libel. Although the judges ruled Hamilton's arguments on this issue out

The Contribution of the US Jurisprudence to Freedom... 207During the North-American colonies’ war of independence from UK,eleven colonies adopted revolutionary constitutions; nine of them included billsof rights with sections guaranteeing freedom of speech and press. 38 The federalconstitution of the USA was adopted in 1787, and the first ten amendments tothe US Constitution containing the list of rights and liberties guaranteed by theConstitution were ratified in 1791 (until today 27 Amendments were added tothe Constitution altogether). 39 The relevant part of the First Amendment,dealing among other with freedom of speech and press, reads:”Congress shall make no law... abridging the freedom of speech, or of the press;...”The First Amendment gradually became a major factor in the developmentof the US defamation law. Besides, some other amendments have also affectedthe regulation of libel in the USA, mostly in the 20 th century. The most importantamong them is the Fourteenth Amendment ratified in 1868, which was laterused by the US Supreme Court as basis for the extension of protection grantedby the First Amendment from the exclusively federal to the state level. For along time after the First Amendment was enacted, it did not significantly affectthe interpretation of the scope and contents of the freedom of speech and press,including the status of libel in the US law. Namely, for almost a century later thereach of the First Amendment (and the entire Bill of Rights) has been construedby the Supreme Court (often referring to the Tenth Amendment 40 ) as beinglimited to the federal government, not affecting state or local governments.Therefore, even though all through the history of the USA many disputesof order, the jury acquitted Zenger on the ground that his charges were based on fact. – SeeArthur B. Hanson, Libel and Related Torts, Vol. I, 10 (New York, 1969). Since that timetruth is a key consideration in libel cases in the USA, and a proof of truth is an irrefutabledefence in defamation cases.38See: Louis Fisher, ”Constitutional Rights: Civil Rights and Civil Liberties, vol. 2 of AmericanConstitutional Law”, 618 (McGraw-Hill Publishing Company, 1990). See also: Rutland, TheBirth of the Bill of Rights, 1776-1794, 78 (1955).39The US Constitution of 1787 initially did not incorporate provisions enumerating humanrights and, consequently, it contained no explicit guarantees of the freedom of speech andpress. However, the political and public pressure towards incorporation of Bill of Rights intothe Constitution was so intense that the first ten amendments were ratified as soon as in 1791.40The text of the Tenth Amendment states:”The powers not delegated to the United States by the Constitution, nor prohibited by itto the States, are reserved to the States respectively, or to the people.”

208Petar Teofilovićemerged over the issues related to speech and press freedoms, they were rarelydecided by the Supreme Court and even those sporadic decisions did not makewhat is today referred to as the First Amendment Law. The states were free toapply different doctrines and practices, and formulate standards that indirectlyrestricted publishing because of the risk that the published information couldbe held libellous. The common law of libel grew in complexity, rigidity andinconsistency.A major shift in this respect was made possible only after the FourteenthAmendment to the US Constitution had been passed in 1868. 41 However, it tooka long time before this amendment effectively affected the Supreme Court’sunderstanding of the First Amendment, it served as a firm basis on which theCourt radically changed the whole previous constitutional setting of therelationship between federal and state powers. Approximately by the time of theWorld War I, through its decisions made in application of the FourteenthAmendment to various issues, the Supreme Court came up with the construalthat this Amendment extended the force of the federal Bill of Rights to states aswell. Consequently, the First Amendment came to be understood by the Courtas protecting equally against state and local as against the federal government.In the next fifty years, the Court had decided many cases involving FirstAmendment freedoms. Most of them dealt with the protection of free speech,while only a few with the freedom of the press. However, the Supreme Courtdid not think then that the First Amendment could in any way restrict the rightof states to prohibit libellous statements, which have been routinely referred toas a category of speech that enjoys no constitutional protection. 42 In mid 20 thcentury such attitude was still prevalent in the practice of the Supreme Court.The Chaplinsky case 43 involved both mentioned aspects: the Court accepted theapplicant’s referral to the Fourteenth Amendment as relevant for the assessment41The key provision in this sense is contained in Section 1 of the 14 th Amendment:”All persons born or naturalized in the United States, and subject to the jurisdictionthereof, are citizens of the United States and of the State wherein they reside. No State shallmake or enforce any law which shall abridge the privileges or immunities of citizens of theUnited States; nor shall any State deprive any person of life, liberty, or property, without dueprocess of law; nor deny to any person within its jurisdiction the equal protection of the laws.”42”[...] The publisher of a newspaper has no special immunity from the application ofgeneral laws. He has no special privilege to invade the rights and liberties of others. He mustanswer for libel [...].” – See Associated Press v. NLRB, 301 U.S., 103 (1937).43Chaplinsky v. New Hampshire, 315 U.S.568 (1942).

The Contribution of the US Jurisprudence to Freedom... 209of the case 44 , but then blatantly placed libellous statements among those that donot deserve any constitutional protection. 45Other amendments, taken individually, have not influenced the Court’sunderstanding of the scope and contents of the freedom of expression. Still, in mid1960s the Court chose an atypical approach by connecting the formulations ofseveral amendments, and factually created the right to privacy as a constitutionalone although it is not explicitly guaranteed by the Constitution. 46 Althoughsome authors fiercely criticized such manner of creating constitutional rights, 47a new limitation to freedom of expression – the right of an individual to privacy- has been introduced.By mid 20 th century defamation was primarily regulated by state law.States in this area mostly adopted the regime of strict liability viewed by manyauthors and judges as too restrictive of the freedom of expression. Attemptingto set a balance in cases where the right to have one’s reputation protectedconflicts with the right to free expression, between the end of the World War Iand 1960’s the Supreme Court has developed several doctrines on the protectionthat the First Amendment provides to freedom of expression. One such doctrinewas that of clear and present danger, first formulated by Justice Holmes in theSchenck case: ”The question [...] is whether the words used are used in suchcircumstances and are of such a nature as to create a clear and present danger[...] that Congress has a right to prevent. It is a question of proximity anddegree”. 48 This test was later reformulated by Judge Learned Hand in Dennis:”[Courts] must ask whether the gravity of the ”evil” [...] justifies such invasion44”It is now clear that Freedom of speech and freedom of the press, [...] protected by theFirst Amendment from infringement by Congress, are among the fundamental personalrights and liberties which are protected by the Fourteenth Amendment from invasion bystate action.” Id.45”There are certain well defined and narrowly limited classes of speech, the prevention andpunishment of which have never been thought to raise any Constitutional problem. Theseinclude [...] the libellous, and the insulting or "fighting" words -- those which, by their veryutterance, inflict injury or tend to incite an immediate breach of the peace. [S]uch utterancesare no essential part of any exposition of ideas, and are of such slight social value as a step totruth that any benefit that may be derived from them is clearly outweighed by the socialinterest in order and morality.” Id.46See Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973).47See e.g. Geoffrey R. Stone et al., Constitutional Law, 918-922, 929-937 (Little, Brown andCompany, drugo izdanje, 1991).48Schenck v. United States, 249 U.S. 47 (1919), at 52.

210Petar Teofilovićof free speech as is necessary to avoid the danger.” 49 The doctrine of clear andpresent danger has been used mainly in cases where defendants were held incriminal contempt for publications of criticisms against courts and judges, andis still used in various circumstances, but its use as a test in free speech caseswas mostly abandoned since the Supreme Court’s judgment in Brandenburg v.Ohio 50 case.One of the most influential doctrines in interpreting the First Amendmentwas that of balancing that emerged in the mid 20 th century. According to thistest, if different constitutionally protected interests, the private and societalinterest in protecting the freedom of speech on one side, and the societal interestin restricting the speech through regulation on the other, are in conflict, theCourt is to balance them against each other in the context of a particular case inorder to decide which one of them merits protection (while the other remainsoutside such protection of the First Amendment). Still, regardless of its apparentpracticability, this method has been strongly criticized by some analysts. Emerson,who seemed to prefer the ”clear and present danger test” as more protective ofthe freedom of expression, saw the principal problem with balancing in that itwas an ”ad hoc” test that ”frames the issues in a broad and undefined way” andleads to ”effects so unstructured that it can hardly be described as a rule of law atall”; a court is to decide according to its own best judgment which is not based onaccepted and impartial rules, and in essence it is nothing more than ”a statementthat the legislature may restrict expression whenever it finds it reasonable to doso”. 51 In another text Emerson objected to vagueness of the balancing test which,in attempt to weigh factors that are not comparable, puts the Court in theposition of opposing the legislature on the legislature’s own ground. 52Following a similar path Aleinikoff observed that balancing test posed adifficult problem to constitutional jurisprudence as it seemed to be ”the activist,policy-oriented approach to constitutional law” entailed by the jeopardy thatthe outcome is based on the judge’s personal preference. However, he believedthat this peril can be avoided if the balancing process is externalised, so thatjudges seek for relevant societal interests and compare them according to49Dennis v. United States,183 F.2d 201 at 212, affd., 341 U.S. 494, at 510 (1951).50Brandenburg v. Ohio, 395 U.S. 444 (1969).51Thomas I.Emerson, Toward a General Theory of the First Amendment, 72 Yale LawJournal, 877 (1963).52Thomas I. Emerson, The System of Freedom of Expression, 274-275 (1970).

The Contribution of the US Jurisprudence to Freedom... 211weight that history, tradition and current society attributed to them, so that thejudges’ personal views do not affect the result. 53Through the long lasting public debate with some of the U.S. SupremeCourt judges, Alexander Meiklejohn developed a theory about two kinds offreedom of speech: a freedom of public, and freedom of non-public speech. Theformer is related to public matters, which the voters must know in order to beable to govern themselves; it is an absolute freedom, and it is protected by theFirst Amendment. The latter is related to speech that is not necessary for thepeople to govern themselves; it is not protected by the First Amendment, andmay enjoy only the Fifth Amendment's qualified protection that it will not berestricted without due process of law. According to Meiklejohn, libellous speechmay belong to either category: if the libel is private, it has no relation to governingand is thus subject to legislative control; however, if the same kind of speechcriticises one’s unfitness for governmental office, such as political or seditiouslibel, it is protected by the First Amendment and is not subject to legislativecontrol. Meiklejohn deemed that the Supreme Court's interpretations actuallyincorporated both into the Fourteenth Amendment’s ”due process” clause,which resulted, on one hand, in the loss of the First Amendments' absolutenessin protecting public speech, and, on the other, in that some non-public speechobtained a constitutionally protected status under the umbrella of the FirstAmendment. 54 The main objection to Meiklejohn’s concept is that it rests onthe extremely imprecise boundary between public and private speech. 55 Othersnoted that he would extend the protection of the First Amendment beyondexplicitly political speech to all valuable types of speech, which in effect wouldcause confusion between constitutionality of laws and their wisdom. 56 Somecommentators deemed that this theory fails to grasp the important role thatcertain private individuals assume in public affairs; in this respect the Meiklejohn’s53Alexander T. Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale Law Journal,943, 952 (1987).54Meiklejohn, Alexander, The First Amendment is an Absolute, 1961 Supreme Court Review,245, partly reprinted in Mass Media and the Supreme Court, 48, 49-54 (Kenneth S. Devol,ed. 1971); See also: Meiklejohn, Alexander, Free Speech and Its Relation to Self Government(1948); Meiklejohn, Political Freedom (1960).55Zechariah Chafee, Jr., Meiklejohn, Alexander: Free Speech and Its Relation to Self Government,62 Harvard Law Review, 899(1949)(book review).56Robert Bork, Neutral Principles and Some First Amendment Problems, 47 Indiana LawJournal, 26-28 (1971).

212Petar Teofilovićtheory would provide inadequate protection to those (particularly to media)who publish statements about individuals who are not public officials or publicfigures, but still strongly affect the public life. 572 Second Period: The Emergence and Developmentof the First Amendment LawIn mid 1960's the Supreme Court took a rather activist stand in applyingthe First Amendment to issues related to libel, and started to apply a muchmore liberal doctrine of freedom of expression in this area. In its decisions onthe constitutionality of its limitations, including those related to defamation, itintroduced significant, sometimes even radical novelties, developing its ownmodel of regulation of defamation. Although still firmly rooted in common lawrules, the US law in this area today departs importantly from its roots, mostly asa consequence of the practice of American courts.The decision in the already mentioned New York Times 58 case in 1964introduced a new approach to this area, and it is considered to be the startingpoint of the second period in the development of the US libel law. Although NewYork Times was limited to one particular category of plaintiffs, namely to ”publicofficials”, its effects and magnitude go far beyond that, apparently narrow, novelty.Its repercussions affect numerous aspects of the modern US law of defamation,and it is one of its fundaments; thus, its importance can hardly be overstated. Theperiod of modern US law of libel is thus characterised by its constitutionalisationand gradual development of the so-called First Amendment law. Previouslymainly a local matter governed by common law and state laws, after New YorkTimes libel is assessed in the light of its relation to freedom of speech and pressunder the First Amendment. Since then, the Supreme Court has decided a numberof cases on constitutionality of limitations of freedom of expression, includingissues related to defamation, applying the new approach. With the introductionof new rules that counter, or at least modify, the common law ones, commonlaw of libel gradually lost significance it had for long time. These decisions havehad the decisive role in re-defining the US libel law in the last four decades,reflecting a new, much more liberal understanding of freedom of expression.57See Labunski, supra at 45.58New York Times Co. v. Sullivan, supra.

The Contribution of the US Jurisprudence to Freedom... 213Relevant decisions of the Supreme Court mostly aimed at allowing muchwider space to expression by giving it stronger protection than it had ever enjoyedunder the common law rules. For instance, New York Times is significant for morethan one reason, but by all means its most important aspect is that it introduced alimited immunity for reporters, and presumably any other defendant, from libelactions for defamatory statements of public officials in performing their officialduty. Some other subsequent decisions extended the protection of the FirstAmendment for opinions (as opposed to facts). The 1974 Supreme Court’sdecision in Gertz 59 raised the protection of opinions to the constitutional level byproclaiming that there is no such thing as a false idea under the First Amendment,and by requiring the proof of fault on behalf of media defendants when thecommunication relates to a matter of public concern. Gertz also established therequirement that the plaintiff proves fault on behalf of media defendants when thecommunication is of public concern. 60 Under the First Amendment, moresignificance has been given by the courts to the criteria for distinguishing betweenopinions and facts, and for identifying ”pure” opinions. This requisite alleviatedsome common problems in cases where the identity of the plaintiff and thecharacter in an impugned statement was wholly accidental, or where the fictitiouscharacter was based on the life and/or character of a real person. While previouslythe defendant’s fault was presumed, the plaintiff now has to invest much moreeffort to win such a case since he has to prove that fault.Through an overview of most important decisions that reframed andimproved the US defamation law, in the continuation of this article specialattention is paid to issues that, frequently raising controversies, most significantlyaffected the development of this area. The first one of them is related to a new59Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).60Such status of opinions was revisited in Milkovich v. Lorain Journal, 497 U.S. 1 (1990),where the Court held that the reference to ”opinion” in dictum of Gertz was not intended tocreate an all/inclusive protection from actions in defamation for opinions, and referred to anumber of other decisions that safeguard the freedom of expression even without thementioned interpretation of Gertz. – See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S.767 (1986): ”...where a media defendant is involved, a statement on matters of publicconcern must be provable as false before liability can be assessed”; Greenbelt CooperativePublishing Assn., Inc. v. Bresler, 398 U.S. 6 (1970): ”statements that cannot reasonably beinterpreted as stating actual facts about an individual are protected.”; Hustler Magazine, Inc.v. Falwell, 485 U.S. 46, 50 (1988), granting protection to statements that ”could notreasonably have been interpreted as stating actual facts about the public figure involved”.

214Petar Teofilovićstandard requiring the plaintiff to prove the defendant’s „actual malice” inorder to win a case, while the other relates to the definition of plaintiffs who areto meet that requirement. Although those decisions affected the relevant statelaw as well, it is still very important in defamation trials, and a defendant canfrequently win a case under the state rules without resorting to the FirstAmendment law. 612.1 Actual Malice RequirementIn New York Times Co. v. Sullivan 62 the conflict was between the publicofficial’s interest to have his reputation protected and the interest of the citizens toenjoy the right to free expression. There the Supreme Court introduced a newstandard according to which in such cases it is not sufficient that the plaintiffproves the defamation, but he must also prove that the defamatory statement wasmade with actual malice. In other words, not all defamations of public officials arepunishable, but only those made with an ill intention to damage their reputation.Stating that the First Amendment guarantees the right of the citizen to criticize hisgovernment, the Court declared that where an elected public official sues a citizenfor defamation contained in such critic, the First Amendment modifies theoperation of the state law of libel. Public officials enjoy immunity to freely performtheir duties, so their critics must enjoy a qualified immunity from civil damages inorder to be able to freely participate in ”uninhibited, robust, and wide-open”debates on issues of public concern that ”may well include vehement, caustic,unpleasantly sharp attacks on government and public officials”. The Court did notcompletely deny the public officials’ reputational interest (or, from the defendant’spoint of view, it did not grant an absolute immunity to criticism of public officials),but instead created a qualified privilege for defendants by requiring the publicofficial plaintiffs to prove ”actual malice”. 63 It defined actual malice as knowledge61Marc A. Franklin, David A. Anderson, Mass Media Law, 229 (Westbury, NY, 1990).62New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), at 277-278. For a detailed description of circumstances of the case, the decision itself, and a criticalassessment of its consequences, see Anthony Lewis, Make No Law: The Sullivan Case andthe First Amendment (New York, 1991).63In the holding of the decision, the Court explicitly stated that ”...Factual error, contentdefamatory of official reputation, or both, are insufficient to warrant an award of damagesfor false statements unless ’actual malice’ [...] is alleged and proved.” - Id., 283; and also:”...presumption of malice is inconsistent with federal constitutional requirements.” - Id., 284.

The Contribution of the US Jurisprudence to Freedom... 215that the statement was false or made with reckless disregard of whether it was falseor not. 64 The use of the actual malice test actually removes constitutionalprotection for defamatory expression that meets the actual malice standard, thusseparating what is protected speech from what is not.As mentioned earlier, New York Times has produced multiple effects inthe area of defamation law. While many, particularly the media, praised thisverdict as a revolutionary decision which provided higher level of protection offreedom of speech by introducing ”order and cohesion to an area of libeljurisprudence that had long suffered from dissonance” 65 , in time some morecritical assessments have appeared in the evaluation of its contributions,particularly because it established a standard which required the plaintiff toprove the intentions and/or motivation of the publisher. 66 Still, there are no doubtsthat it introduced some new issues previously irrelevant in libel litigation, whichin return affected the understanding and treatment of many other ”traditional”matters. The initial scope of the actual malice test as set in this decision waslimited to cases where a public official has been defamed in performing his officialduties. However, the application of the test was very soon expanded to othercategories of plaintiffs as well. The search for a clear definition of the circle ofplaintiffs who must prove actual malice on behalf of the defendant, and furtherrefinements of the actual malice test soon became key issues in libel cases dealtwith by the Supreme Court. Campbell noted that these attempts have continuedunder two concepts: one focused on the nature of the persons defamed, namelywhether they are public or private persons; and the other concerned with thenature of the matter in issue, i.e. whether it is a matter of public or purely privateinterest. 67 With few exceptions, the Court used some combination of both these64Id., 265. The term ”malice” in US law has somewhat different meaning when applied tovarious institutes, but it always denotes the existence of intention to inflict some harm toother; in the area of defamation law, the harm affects the reputation of the defamed person.– See H.C. Black, Black's Law Dictionary, 660 (publishers editorial stuff), abridged 6 th edition,St. Paul, 1991). For a detailed analyses of actual malice requirement see also W. Wat Hopkins,Actual malice (New York-Westport-London, 1989).65Clifton D. Lawhorne, Defamation and Public Officials, 213 (Southern Illinois UniversityPress, 1971).66See e.g. Thomas I. Emerson, The System of Freedom of Expression, 530-531, 538 (NewYork, 1970).67Douglas C. Campbell, The Supreme Court And the Mass Media, 19-20 (New York,Westport, London, 1990); See e.g. Patriot Co. v. Roy, 401 U.S. 265, 28 L.Ed.2d 35, 91 S.Ct.

216Petar Teofilovićelements in most cases where it dealt with the question of whom the actual malicerequirement applies to. Almost all other issues related to defamation are, oneway or another, connected with this central issue of the US defamation law.The actual malice test as set in New York Times has generated the need tospecify some of its aspects. In comparison with the traditional understanding ofmalice, ”actual malice” introduced a new stricter standard in respect of theevidence that the plaintiff has to present to be successful in libel litigation: while thedefendant’s ”malice” has previously been presumed from the fact of publication,actual malice requires plaintiffs to find out and prove the defendant’s state ofmind, namely that he knew that the statement was false, or that he was inexcusablynegligent in this respect. Thus, the Court had to specify the relation between thetraditional understanding of malice and the meaning of actual malice under NewYork Times. The requirement of proof of actual malice also generated a relatedproblem of the demarcation between actual malice and lower degrees of fault.Dealing with this issue a year after the New York Times judgment, theCourt stated that ”...actual malice in a libel case does not mean hatred or ill will.It involves an intent to inflict harm through falsehood, not just an intent toinflict harm without more.” 68 Some time later, the Court further specified thisstandard in respect of the assessment of a candidate’s fitness for public service,stating that the standard of assessing the ”relevance” is lower than the standardof knowing falsity or utter recklessness contained in the requirement to establishactual malice. It also added that the standard of ”relevance” may become aninstrument of suppression of speech based on the content of speech, while astandard of care (actual malice) ”can be neutral with respect to the content ofthe speech involved.” 69In pursuit of the adequate criteria for establishing the existence of actualmalice, the Court mentioned in New York Times that actual malice must beestablished with convincing clarity, which became an important issue indefamation cases. In later decisions it has confirmed the stand that a judge must621 (1971), where the Court, discussing whether the libel in issue was of public or privatenature, stated that the difference between situations where actual malice is to be shown andthose where it is not is based on two groups of factors, namely the class of persons whoappear as plaintiffs, and a type of activity they perform; cf. Ocala Star-Banner Co. v. Damron,401 U.S. 295, 28 L.Ed.2d 57, 91 S.Ct. 628 (1971), at 300.68Henry v. Collins, 380 U.S. 356, 13 L.Ed.2d 892, 85 S.Ct. 992 (1965), at 356-357.69Patriot Co. v. Roy, 401 U.S. 265, 28 L.Ed.2d 35, 91 S.Ct. 621, 1 Med.L.Rptr. 1619, at 275-276(1971).

The Contribution of the US Jurisprudence to Freedom... 217base his assessment on ”clear and convincing evidence”. 70 This way, the normthat normally applies in civil litigations – the preponderance of proof – hasbeen substituted by a stricter requirement of ”clear and convincing evidence”,which is, again, milder than the criminal law standard of ”proof beyond reasonabledoubt”. Along these lines, the Court in Patriot Co. v. Roy explicated that thestandard of ”relevance” is based on the preponderance of evidence, while showingactual malice requires clear and convincing evidence of knowing falsity or recklessdisregard of the truth; thus the standard of reasonable person as a standard ofcare is lower, and does not make an adequate protection for political speechabout public officials. 71A related consequence of New York Times is that ordinary negligence inrespect of the truth of defamatory statements about public officials is no longersufficient for the plaintiff to win the case. 72 Thus, an issue generated by thisdecision is what behaviour constitutes ”reckless disregard”, and what the criteriafor distinguishing it from ordinary negligence are. In respect of media defendants,it related to the level of due care they have to follow when verifying the statementsthey publish. In one of the subsequent decisions the Court reasoned that thenewspaper’s failure to investigate the charges do not amount to ”high degree ofawareness of... probable falsity demanded by New York Times”, and thus doesnot make sufficient proof of the existence of actual malice. 73 In a similar tone,the Court in St. Amant and in Rosenbloom 74 stated that for the finding of actualmalice ”there must be sufficient evidence to permit the conclusion that thedefendant in fact entertained serious doubts as to the truth of his publication.”In another case the Court deemed that publishing a false defamatory statement,providing that it is a consequence of an unintentional error in judgment, is notan evidence of actual malice because this standard requires a falsehood to be70E.g. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L.Ed.2d 202, 106 S.Ct. 2505, 254,255-256 (1986); see also Bose Corp. v. Consumers Union of U.S., Inc. 466 U.S. 485, 80L.Ed.2d 502, 104 S.Ct. 1949, at 514 (1984), where the Court stated that Appellate judgesmust exercise ”independent judgment” to establish actual malice with convincing clarity.71Patriot Co. v. Roy, 401 U.S. 265, 28 L.Ed.2d 35, 91 S.Ct. 621, 1 Med.L.Rptr. 1619, at 275 (1971).72”[...] evidence against the Times supports at most a finding of negligence [...], and isconstitutionally insufficient to show the recklessness that is required for a finding of actualmalice”. – New York Times, at 287-288.73Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 19 L.Ed.2d 248, 88 S.Ct 197, at 85 (1967).74St. Amant v. Thompson, 390 U.S. 727, 20 L.Ed.2d 262, 88 S.Ct. 1323 (1968); Rosenbloom v.Metromedia, Inc., 403 U.S. 29, 29 L.Ed.2d 296, 91 S.Ct. 1811, 56 (1971).

218Petar Teofilovićpublished with unmistaken knowledge of falsity. 75 In a similar assessment of theauthor’s judgment, the Court held that if the journalist creates misconception byadopting false but possible rational understanding from an ambiguous documentbelieving that such interpretation is true, it does not amount to actual malice. 76However, in Firestone the Court declared that the media ”must be able to establishnot merely that the item reported was a conceivable or plausible interpretationof the decree, but that the item was factually correct;” 77 in other words,accurate reporting understands more than freely selecting one rationalinterpretation among those available in an unclear document, since the facts onwhich the interpretation is based must be accurate.On the other hand, the application of the actual malice standard, particularlyin cases where it requires the establishment of accuracy and rationality ofconclusions about the truth of the alleged defamatory statements, also calls forthe examination of the way the information were collected, and of the editorialdecision making process, which opened some other questions. In Lando theCourt rejected the defendant’s claim of a constitutional privilege against thediscovery of the information about the editorial decision making process 78 , statingthat: ”There is no First Amendment restriction on the sources from which theplaintiff obtains the necessary evidence to prove the critical elements of his causeof action. On the contrary, New York Times and its progeny made it essential toproving liability that the plaintiff focus on the conduct and state of mind of thedefendant.” A defamed public official may, and must inquire about journalist’sstate of mind to show reckless disregard, and the media are not protected fromquestions about the editorial process since the limits of such privilege would be75Bose Corporation v. Consumers Union of United States, Inc., 466 U.S. 485, 80 L.Ed.2d 502,104 S.Ct. 1949, 10 Med.L.Rptr. 1625 (1984).76Time, Inc. v. Pape, 401 U.S. 279, 28 L.Ed.2d 45, 91 S.Ct. 633, 1 Med.L.Rptr 1627 (1971).77Time Inc. v. Firestone, 424 U.S. 448, 47 L.Ed.2d 154, 96 S.Ct. 958, 1 Med.L.Rptr. 1665(1976)78Herbert v. Lando, 441 U.S. 153, at 160, 60 L.Ed.2d 115, 99 S.Ct. 1635, 4 Med.L.Rptr. 2575(1979) - During the preparations for the trial the plaintiff required Lando, the producer of aTV show that contained alleged defamatory statements, to reveal certain informationrelated to the editorial process, which he refused claiming a constitutional privilege againstdiscovering that kind of information which protects the media from self-censorship. TheSupreme Court denied anything similar to such privilege, since the actual malice test wasdesigned ”to discourage the publication of erroneous information known to be false, orprobably false”, and such information only.

The Contribution of the US Jurisprudence to Freedom... 219difficult to specify. 79 Campbell noted that one of the effects of the actual malicerule is that some reporters prefer to destroy their notes fearful that the court’sassessment of their liability on the grounds of the information they based theirstatements upon could be unfavourable for them. 80 Others pointed out thatsuch fear makes most of the comments being approved by lawyers beforedissemination”. 81 Even Justice White in one of the Supreme Court’s decisionsstated that one side effect of this doctrine could be the prolonged discovery periodwhich would be detrimental to the press. 822.2 Defamation of „Public” and „Private” PersonsAnother issue that emerged from New York Times judgment relates to thecircle of plaintiffs who must prove the defendant’s actual malice. The importanceof this matter lies in the fact that only the individuals who have certain ”public”status have to meet this higher standard in order to win a defamation case,whereas ”private” individuals do not have to prove the defendants actual maliceand consequently they can win the case and the damages for harm done to theirreputation easier than the former. Closely associated is the issue of distinguishingbetween defamation of public officials acting in their public capacity, anddefamation of same persons as private individuals, i.e. when they are notperforming their official duties. 83 In the period after New York Times theprevalent trend was of extending its rule to plaintiffs other than public officials.The next Supreme Court’s decision important for defamation was Garrison,where the application of actual malice requirement, besides civil libel, has beenextended to criminal libel, too. 84 The Court also held that ”appellant's79Id., at 170.80Campbel, supra at 20.81Steve Weinberg, The Anderson File, Colum. Journ. Rev., Nov/Dec 1989, 35, 39.82Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749 (1985).83E.g. in Patriot Co. v. Roy, supra, at 270-271, and in Ocala Star-Banner Co. v. Damron,supra, at 300, the Court explicitly stated that charges of criminal misconduct of public officialsor candidates for a public service are not just a private matter, because such questions arealways important for the assessment of their fitness for the office, and so the actual malicestandard applies in such cases as well.84Garrison v. Louisiana, 379 U.S. 64, 13 L.Ed.2d 125, 85 S.Ct. 209 (1964) – The appellant wasconvicted of criminal libel for accusing eight state court judges of laziness and inefficiency,and of hampering his efforts to enforce the vice laws, but the US Supreme Court held that

220Petar Teofilovićaccusations concerned the judges’ official conduct, and did not become privatedefamation because they might also have reflected on the judges’ privatecharacter”. 85 This formulation suggested that almost every action of a publicofficial may be relevant to evaluate his official performance, and that even criticsof his private conduct may be protected under the actual malice rule. Oneaspect of Garrison is particularly important from the comparative perspective.Namely, in this decision the Supreme Court had explicitly and without anyreservation placed the judges into the category of public servants who, besidesthe existence of defamation, have to show the proof of actual malice on behalfof the defendant. With this decision the Court fostered the view about theposition of judges as plaintiffs in defamation trials spelled out in Bridges v.California, where, dealing with the conviction of the applicant for contempt ofcourt, it explicitly stated that ”the respect for the judiciary cannot be won byshielding judges from published criticism[...], solely in the name of preservingthe dignity of the bench, [because that] would probably engender resentment,suspicion, and contempt much more than it would enhance respect.” 86”the Constitution limits state power to impose sanctions for criticism of the official conductof public officials, in criminal cases as in civil cases, to false statements concerning officialconduct made with knowledge of their falsity or with reckless disregard of whether theywere false or not.”85Id., at 77.86Bridges v, California, 314. U.S. 252 (1941). This view stands in sharp contrast with thedoctrine developed in the practice of the European Court of Human Rights according towhich judges should enjoy special protection from defamation for two main reasons: 1. theyare more vulnerable to injuries of reputation because of their duty of discretion, whichprecludes them from replying to attacks in the media, and thus have less means to protectthemselves from defamation than the politicians who can use the media to that end; 2.defamatory attacks on judges not only harm their reputation, but may also damage theauthority and impartiality of the judiciary, and thus their protection goes beyond the levelnormally granted to reputational interests. See Barfod v. Denmark, 22 February 1989, SeriesA No. 149; Prager and Oberschlick v. Austria, 26 April 1995, Series A No. 313. Still, the levelof protection of judges and other judicial officers under the European Convention of HumanRights varies according to the circumstances of the particular case. The reputation of judgesenjoys lower level of protection if the attack has been published in the form of a valuejudgment (opinion), which by its nature is not susceptible of proof (See De Haes and Gijselsv. Belgium, Judgment of 24 February 1997, Reports of Judgments and Decisions, 1997-I), aswell as if a judicial officer acts as a ”militant political activist” – in that case he has to endurethe same strict criticism as any politician (the latter, according to the practice of the EuropeanCourt of Human Rights, enjoy the lowest level of protection of reputation. The nature of

The Contribution of the US Jurisprudence to Freedom... 221In Rosenblatt 87 , the Court extended the definition of public officials to all”government employees who have, or appear to the public to have, substantialresponsibility for or control over the conduct of governmental affairs”. Criticismof public official’s conduct is very similar to defamation of the government,which is a protected speech. Still, the Court stressed that trial courts should makesure that defamation of public official’s behaviour does not make a defamationof his private life, which enjoys higher level of protection. Another contributionof this decision was that it clarified that the actual malice standard applies tosome former officials as well as to those who still hold their posts.Four months after New York Times the Federal Court of Appeals for theSecond Circuit suggested in Pauling that the actual malice privilege probablyneeds to be extended to other individuals, and even to debates on issues of vitalpublic interest. 88 This, in a way, announced the next important novelty introducedby the Supreme Court in Butts, decided together with Walker 89 : the creation of”public figure” category of plaintiffs. In the first case the plaintiff was allegedlydefamed that he had conspired to fix the football game between two universitiesin 1962, whereas in the second the reporter wrote about an eyewitness accountabout a riot at a university, claiming that the plaintiff commanded the crowdagainst federal troops enforcing a court order, and instigated rioters to useviolence. The majority of 7 Justices (out of 9) approved that both plaintiffs were”public figures” for the purposes of the First Amendment, although they gainedthat status differently: while in the first case the plaintiff may have attained thatstatus by position alone (as a team coach), in the second case the plaintiff becamea public figure by thrusting himself into the ”vortex” of a public controversy. Inorder to cover both of them by the definition of ”public person”, the Courtformulated a more general definition, according to which public figures werepersons who command the interest of the general public, and are importantenough to gain access to the mass media to reply to libellous statements. 90 Thetheir job makes them constantly exposed to public scrutiny, and they have willingly andvoluntarily accepted to be politicians, so they have to tolerate the attacks on their reputationthat the majority of other individuals need not tolerate – see Perna v. Italy, Judgment of 25July 2001).87Rosenblatt v. Baer, 383 U.S. 75, 15 L.Ed.2d 597, 86 S.Ct. 669, 1 Med.L.Rptr. 1558 (1966).88Pauling v. News Syndicate, 335 F.2d (1964), at 671.89Curtis Publishing Co. v. Butts/ Associated Press v. Walker, 388 U.S. 130, 18 L.Ed2d 1094,87 S.Ct. 1975 (1967); reh.den. in Butts 389 U.S. 889, 19 L.Ed.2d 197, 88 S.Ct. 11.90Butts, id. at 155.

222Petar Teofilovićdefinition of public figures, however, was not definitely set in Butts/Walker, butwas discussed further on. In the process, the Court has been meandering betweenextending and narrowing its scope. As for the standard applicable to publicfigures in defamation cases the majority accepted the actual malice standard.The Court discussed the public figure concept again in Rosenbloom, whereit introduced the notion of ”involuntary public person”, one who is actually aprivate person but is involved in a matter of public concern. 91 The outcomewas the rather uncontrollable expansion of the circle of ”public figure”plaintiffs, since even private persons were attached the requirement to proveactual malice on behalf of the defendant in cases involving matters of generalinterest. The Court first stated that decisions after New York Times have revealedthe ”artificiality, in terms of the public’s interest, of a simple distinction between”public” and ”private” individuals or institutions”. Namely, quoting from Butts,the Court reiterated that ”[P]olicy determinations which traditionally werechannelled through formal political institutions are now originated andimplemented through a complex array of [bodies], some only looselyconnected with the Government. This blending of positions and power hasalso occurred in the case of individuals so that many who do not hold publicoffice at the moment are nevertheless intimately involved in the resolution ofimportant public questions”. 92 As self-governance presupposes more thanknowledge and debate about the strictly official activities of various levels ofgovernment, the relevant facet to the actual malice requirement is not whether thedefamed person is public or private, but whether there is public interest involvedin the controversy or not. The Court continued by stating that matters ofpublic interest cannot become less so merely because a private individual isinvolved, or because a private individual did not voluntarily thrust himself intosuch matter; the public focus is on the conduct of the participant and thecontent, effect, and significance of the conduct, not the participant's prioranonymity or notoriety. 93 On those grounds the Court extended the FirstAmendment protection to all discussion involving matters of such interest. Theoutcome of Rosenbloom was that the earlier distinction between public officials,public figures and private persons became irrelevant, since all three categories91Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 29 L.Ed.2d 296, 91 S.Ct. 1811(1971).92Id. at 42.93Id., at 41-44.

The Contribution of the US Jurisprudence to Freedom... 223of plaintiffs were to be treated the same when the defamation has occurred inrelation to discussions on a matter of general or public interest.The Supreme Court next dealt with refinements of public figure conceptthree years later in Gertz, 94 where it definitely rejected the ”matter of publicinterest” standard promoted in Rosenbloom for the application of actual malicerule. 95 There the Court divided public figures into three categories - ”publicfigures for all purposes”, ”public figures for limited purposes”, and ”involuntarypublic figures”. The first category, ”public figures for all purposes”, includesthose who voluntarily occupy positions of such power and influence that theyachieve pervasive fame or notoriety, and assume special prominence in resolvingmatters of public interest. ”Public figures for limited purposes” voluntarily enter,or are drawn into a particular public controversy with the intention to affect itsresolution, and thus gain the status of a public figure for a limited range of issuesthat they are involved with. Finally, ”involuntary public figures” are largelyhypothetical, and include those who did not ”voluntarily” choose to becomeassociated with a matter of general interest; still, they cannot recover damagesfor injury to reputation unless they prove the defendant’s actual malice. Commonfeature of all three categories of public figures is that all of them have assumedroles of prominence in public affairs, and the media are thus entitled to take forgranted that public figures, same as public officials, had ”voluntarily exposedthemselves to increased risk of injury through defamatory falsehood.” Suchassumption is not acceptable in respect of private individuals: they normally havelesser opportunities for rebuttal than public officials and public figures, and arethus more vulnerable to injury from defamation, so the legitimate state interestto compensate private individuals is greater than for public officials and publicfigures. The Court stated that ”absent any clear evidence of general fame ofnotoriety, and pervasive involvement in the affairs of society”, an individualshould not be deemed a public figure for all aspects of his life, but this issueshould rather be determined by reference to the nature and extent of hisparticipation in the particular controversy giving rise to the defamation. 96 Thestates are free to establish their own level of fault for the media when defamation94Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L.Ed.2d 789, 94 S.Ct. 2997 (1974).95In Rosenbloom the ”matter of general or public interest” test was actually endorsed bythree justices only, which very soon proved to be an insufficient support to sustain such amajor novelty.96Gertz, supra, at 345-348, 351-352.

224Petar Teofilovićrelates to private persons, but punitive damages in respect of private individualplaintiffs may be considered only if they can demonstrate actual malice on behalfof the plaintiff. The consequence was that the scope of the public figure conceptas set in Rosenbloom was significantly reduced, because after Gertz privateindividuals are not automatically put into the category of public figures eventhough the matter in issue was of public concern, and thus they need not provethe defendant’s actual malice.The scope of the notion of public figure was further narrowed in Firestone 97 ,where the Time magazine was convicted by state courts for libel because of theway it wrote about the divorce suit of a couple that was of certain fame in thepublic. Time filed a petition to the Supreme Court claiming that the issue was apublic controversy because of the celebrity status of the plaintiff, and that sheshould be treated as a public figure. The Court, however, noted that the petitionerseeks to equate ”public controversy” with all controversies of interest to the public,which would reinstate the doctrine advanced in Rosenbloom, but repudiated inGertz. A divorce through judicial proceedings is not the sort of ”public controversy”referred to in Gertz since the respondent did not assume any ”special prominencein the resolution of public questions”, and so ”imposing upon the law of privatedefamation the rather drastic limitations worked by New York Times cannot bejustified by generalized references to the public interest in reports of judicialproceedings... The details of many, if not most, courtroom battles would addalmost nothing toward advancing the uninhibited debate on public issues”. TheCourt concluded that the respondent was not a ”public figure” for the purposeof determining the constitutional protection afforded. 98 The outcome ofFirestone is that even renowned persons actively seeking publicity are notnecessarily public figures. Still, although the Court did its best to avoid the”matter of public interest” test, it had to resort to it to some extent in order totry to consistently specify the circle of public figures.Four years later the Court further developed the idea that private personswho become involved in matters that attract public attention do not automaticallybecome ”public figures”. In Wolston 99 the plaintiff’s involvement in thecriminal trial was not deemed a voluntary effort to influence the outcome of a97Time Inc. v. Firestone, 424 U.S.448, 47 L.Ed.2d 154, 96 S.Ct.958(1976).98Id., at 454-455, 457.99Wolston v. Reader's Digest Association, Inc., 443 U.S. 157, 61 L.Ed.2d 450, 99 S.Ct. 2701(1979).

The Contribution of the US Jurisprudence to Freedom... 225particular public controversy, so he was not a public figure within the meaningof the Court’s previous rulings in defamation cases and, consequently, was notrequired by the First Amendment to meet the ”actual malice” standard of NewYork Times in order to recover from respondents.In Hepps 100 the Court considered the question of who bears the burdenof proof in defamation cases. Namely, even after New York Times most stateshave kept the old common law assumption that all persons are of goodreputation unless proved contrary, and that defendants in defamation caseshave to prove the truth of their statements. The Court in Hepps, however, madeit clear that this common law rule was superseded by a constitutional rule in itspast decisions, and that the burden of proof of falsity of a defamatory statement,as well as of fault (actual malice), rests on the plaintiff. This switch was based ona rationale that the burden of proving true speech would have restrictive effectson such speech; on the other hand, the alteration of the traditional rule of theburden of proof was seen as adding only slightly to the already present burdensof the plaintiff since ”evidence offered by plaintiffs on the publisher’s fault [...]will generally encompass evidence of falsity”. 101 The rule of the burden of proofof falsity was formulated to pertain to private plaintiffs, where defamatorystatements were made by media defendants in relation to matters of publicconcern. Hepps, however, did not explicate whether the same rule applies tocases where defamatory statement has been made by non-media defendants.The concept of public figure in the theory is largely influenced by theconsiderations expressed in the Supreme Court’s decisions. For instance, Prosserand Keeton describe public figure as one ”who [...] by adopting a profession orcalling which gives the public a legitimate interest in his doings, his affairs, andhis character, has become a ”public personage”[...] Such public figures [...] hadsought and consented to [publicity] and so could not complain when theyreceived it; their personalities and their affairs had already become public, andcould no longer be regarded as their own private business, and [...] the press hasa privilege under the Constitution to inform the public about those who havebecome legitimate matters of public interest.” 102 This justification of lesser100Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 89 L.Ed.2d 783, 106 S.Ct. 1558 (1986).101Id., at 776-779.102W.P. Keeton et al., Prosser and Keeton on Torts, 859-61 (St. Paul, Minn.,5th ed., 1984);See also Robert D. Sloane, Politics, Polls and the Press, vol.12, No.1 Communications andthe Law (1990), at 60.

226Petar Teofilovićprotection of public figures is similar to that adopted by the European Court ofHuman Rights in Lingens and in subsequent decisions in respect of politicians.The scope and contents of ”public figure” concept are still not definedclearly, and probable never will be. Thus it is a matter requiring thorough analysisby the court each time, on a case by case basis, since that may significantly affectthe final finding in respect of the plaintiff’s status and his right to recoverdamages for defamation. 103* * *Although admitting that actual malice requirement is an improvementover the common law strict liability standards, Gillmor objected to its wisdomand listed a number of problems that followed after New York Times: it introducednumerous dichotomies between absolutes – truth v. falsehood, public v. private,malice v. lack of malice, fact v. opinion, deliberate v. non-deliberate; there seemedto be no standard definitions of the constituents of libel, while the SupremeCourt was divided in respect of limits of tolerance for defamatory speech;additional confusion has been generated by unclear relations between oldcommon law standards and the innovations instituted in the last four decades;because of the nature of actual malice test, (plaintiffs’) lawyers were permittedto explore the minds of reporters and editors, and to base the claim of theexistence of actual malice on hunch, impression or inference, while the courtswere defining journalistic responsibility. Thus, Gillmor’s conclusion was thatNew York Times was a ”lost opportunity” and a ”crippling compromise”: whatthe doctrine might have intended was in tatters because of the unexpectedboomerang effect of actual malice test. 104 There were even proposals forabandoning the New York Times doctrine and returning to old common law105rules.103As an illustration of numerous judgments on this issue see Bruce W. Sanford, Libel andPrivacy, 329-345 (Aspen Law & Business, 2 nd ed., 1991, with supplements up to 1999).104Donald M. Gillmor, Power, Publicity and the Abuse of Libel Law, 68 - 71 (New York –Oxford, 1992).105E.g. Justice White in Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749 (1985); JusticesBurger and Rehnquist in their dissent in Coughlin v. Westinghouse Broadcasting and Cable,Inc., 476 U.S. 1187-1188 (1986); see also Richard A. Epstein, Was New York Times v. SullivanWrong?, 121, 134-135, in The Cost of Libel (Dennis and Noam (eds.), New York, 1989).

The Contribution of the US Jurisprudence to Freedom... 227III Conclusive RemarksThe development of the contemporary US law on defamation was extremelydynamic and interesting, particularly in the second half of the 20th century. Theinherited rigid rules of English common law, primarily aimed at the protectionof reputation of individual, were gradually replaced as obsolete by new approachthat is more directed towards the protection of the freedom of expression. Thekey judgment of the US Supreme Court in this respect, New York Times v.Sullivan, represented a radical departure from earlier views and standards, andcaused revision and modification of many rules that have been uncontested forcenturies. By interpreting the issue of defamation through its relation with theliberally understood freedom of expression, and by extending the effects of theFirst Amendment of the federal constitution to the state law, a substantiallynew understanding of numerous aspects of defamation has been developed.Freedom of expression was undoubtedly extended, but even in the new contextthis freedom meets some new challenges. The effects of the US jurisprudence inthis area did not remain limited only to the USA but strongly influenced therelevant law in some other states, too, even including the interpretations ofcertain international instruments. The US law of libel is still very complex, sothe finaloutcome of defamation proceedings often remains uncertain until thefinal decision of the Supreme Court.

4 Dragutin Avramović, AssistantPolice Academy, Belgrade, SerbiaALAN WATSON: LEGAL TRANSPLANTS– AN APPROACH TO COMPARATIVE LAW 1Prominent Scottish and American professor of Comparative Law AlanWatson, who has built his career at universities in Edinburgh, Oxford,Pennsylvania, Virginia, California, and now at the University of Georgia, acquiredgreat fame due to his numerous inventive works – more than 40 books and a fewhundred articles. However, two of his most important intellectual contributionswill remain remembered for long. The first one is editing and publishing theEnglish translation of Justinian’s Digest 2 , while the second one is a theory of legaltransplants, 3 which has provoked a thorough debate and concerned reactionamong legal scholars. By challenging some of basic principles of legal evolutionand of the historical school, as well as of the Marxist view on legal development,1Serbian translation: Pravni transplanti – pristup uporednom pravu, Pravni fakultet Univerzitetau Beogradu, Beograd 2000, 193 str., Legal transplants – an approach to comparative law,Athens GA – London, 1993, p. 1212The Digest of Justinian, I-II, University of Pennsylvania Press, 1998.3He has clearly defined his theory on legal transplants firstly in A. Watson, Legal Transplants,an Approach to Comparative Law, University Press of Virginia, 1974. However, origins ofhis view can be rooted in his earlier works on Comparative Law and Legal History, whileadditional argumentation has been offered in subsequent books like Society and Legal Change,Scottish Academic Press, Edinburgh, 1977; Comparative Law and Legal Change, Cambridge1978; The Making of the Civil Law, Harvard University Press, Cambridge, MA, 1981; TheSources of Law, Legal Change and Ambiguity, University of Pennsylvania Press, 1984; TheEvolution of Law, Johns Hopkins University Press, Baltimore, 1985; Failures of the LegalImagination (University of Pennsylvania Press, 1988); Legal Transplants, 2nd ed., Universityof Georgia Press, 1993; Law Out of Context University of Georgia Press, 2000; The Evolutionof Western Private Law Johns Hopkins University Press, 2001. Important argumentation indefense of his view is available in electronic form: A. Watson, ”Legal Transplants andEuropean Private Law”, Electronic Journal of Comparative Law, vol 4.4 (December 2000).

Alan Watson: Legal Transplants – an Approach to Comparative Law 229Watson has attracted many arrows of criticisms, but he also acquires more andmore followers. Recent confrontation of opponents and supporters of thistheory that took place at the University of London conference held in May 2005has shown importance of legal transplants issues. Although Serbian literaturedoes not still include Alan Watson among most important legal philosophers ofthe 20 th century 4 , his contribution to legal theory is undeniable. This reviewaims to get him closer to our readers.According to Watson’s opinion the evolution of law is most often basedupon legal borrowings, although he does not exclude influences of internal legalevolution and other effecting elements. However, Watson insists and empiricallyapproves through many examples that changes in law often come out as aconsequence of solutions from other legal systems. Stressing that this effectappears in some cases by chance, he imperils the very foundations of evolutionism.Consequently, to perform legal changes it would not have been always necessaryto meet similar level of general social and economical development of the donorand recipient state. This is why he is usually strongly attacked predominantly byMarxists and sociologists.The book is divided in 17 chapters, combining theoretical and empiricalapproach. First four chapters titled ”Comparative Law as an Academic Discipline”,”The Perils of Comparative Law”, ”The Virtues of Comparative Law”,”Introduction to Legal Transplants” place theoretical framework for his futureconclusions. He treats Comparative Law not only as a method, but as a specificand complex scientific discipline: ”Comparative Law, then, if it is to be anintellectual discipline in its own right, is something other than the study of oneforeign system (with glances at one’s own), an overall look at the world’s systemsor comparison of individual rules or of branches of law as between two or moresystems, and I would suggest that it is the study of the relationship of one legalsystem and its rules with another” (p.6). Watson denies possibility of makinggeneral legal development theory applicable to all or many unrelated societies.He attacks the evolutionary theory from its own point of view, stating that it ismethodologically imperfect and not founded at firm principles, claiming alsothat there is therefore no possibility to be refuted by an objective theoretical4R. Stepanov – G. Vukadinović, Pravna misao XX veka (Legal Thought of the 20 th century),Petrovaradin, mark as most prominent ones Roscoe Pound, Emil Lask, Gustav Radbruch,Hans Kelsen, Lon Fuller, Herbert Hart, Norberto Bobbio, John Rawls, Niklas Luhmann,Ronald Dworkin, Paul Amselek and John Finnis.

230Dragutin Avramovićreason. ”But the theory can only be established – and can only be rebutted – if itis developed. It is for these reasons that we must take issue on ground chosen bythe main proponent of the theory, and show that in one important instance (forhim) the legal position described by him derives from his theory and not fromevidence” (p.13). Watson claims that the most important value of ComparativeLaw rests in fact that it is able to offer knowledge about the nature of law, and inparticularly of legal development. Comparative Law enables to reveal relationsbetween legal systems, representing a framework for understanding essence anddevelopment of law. Based upon this starting point, Watson accentuate a paradoxof historical school that although the law reflects ”spirit of people”, legaltransplants are still very common and important. He points to Roman Law andEnglish Common Law as the two significant donor systems, being used fortransplantation of legal ideas and institutions all over the world.Therefore, in following chapters (”Romans and Roman Law in RomanEgypt”, ”Roman Systematics in Scotland”, ”The Reception of Roman Law inScotland”, ”Meaning and Authority”, ”Lo Codi”, ”The Early Law of theMassachusetts Bay Colony”, ”English Law in New Zealand”, ”Roman Law in theLate Republic”, ”Lex Aquilia: Reception and Non-Reception”, ”Transfer ofOwnership and Risk in Sale”, ”Authority Again”) the author approves his generalstandpoints upon examples of concrete legal systems and legal institutions.Those examples are mostly related to private law sphere. By using rich historicalmaterial and comparative method Watson comes to conclusion that transplantationis equally present in ancient as well as in modern world. He also offers apossibility of transplants classification, starting with basic division in voluntarymajor transplants and imposed ones.As in many of his works and lectures, he grants a particular attention tophenomenon of Scottish law, being predominantly developed under the influenceof Civil (Continental) Law. Scotland has adopted from Roman Law both itspositive law and legal systematics, although it was placed next to England – thesecond most important legal nursery plant. By using that phenomenon Watsonclearly demonstrates the role of chances and importance of authorities in lawmaking process through borrowings. As the central reasons for transplantationof Roman Civil Law, rather than English Common Law, he picks out two maincauses: the first, a historical rivalry among Scotland and England culminatingwith the Scottish break with England after the War of Independence, and thesecond, absence of any University in Scotland that led Scots going to Europe tostudy (p.46). Coming back home after studies Scots have brought Roman Law

Alan Watson: Legal Transplants – an Approach to Comparative Law 231concepts with them and respect for authority of their professors and their legalviews. In that way, a chance and role of authority affected predominantlyformation of Scottish law. Additional proof of importance of chances in lawmaking process is marked by non-legal factors – lack of literature and linguisticdeficiencies. ”Clearly, one factor in the widespread reception of Roman law wasthat what later came to be called the Corpus Iuris Civilis was written in Latin, alanguage understood by all educated men in Europe for many centuries” (p.93).In two final chapters (”Some General Reflections” and ”Comparative Lawand Legal History”) Watson makes synthesis of his standing and formulates 13major points of his theory. Firstly, the transplantation is extremely commonboth of individual rules and of a large part of a legal system in early times and inthe present day. Secondly, transplanting is the most fertile source of legaldevelopment, both for individual rules and for systematics. Thirdly, law is sodeeply rooted in the past, that some institutions of modern law (such as Romanconcept of sale) are still based upon it, being just slightly modified. Fourthly, thetransplanting of legal rules is not a complicated process, and it is socially easy,so that in periods of legal reforms borrowings are frequent. Fifthly, a voluntarytransplantation almost always involves a change in the law, which can be dependenton many factors, such as climate, economic conditions, religious outlook or evenchance (making in that way a kind of compromise with the historical schoolconcept of the ”spirit of people”). Sixthly, no area of private law is resistant tochange as a result of foreign influence. Seventhly, particularly proper circumstancesfor transplantation are periods when recipient societies are confronted withreforms and legal changes. Eighthly, reception is possible and still easy when thereceiving society is much less advanced materially and culturally than the donorsystem. Ninthly, foreign law can be influential even when it is totally misunderstood.As an example he mentions a famous Montesquieu doctrine of separation ofpowers: ”It is much disputed whether Montesquieu actually misunderstood theEnglish constitution or was constructing an ideal constitution with England asits source. However this may be, his views were of fundamental importance tothe framers of the American constitution though they were under no illusion asto the true nature of the English constitution” (p.99). Tenthly, transplantation isstrongly affected by influence of authority. Eleventhly, a nation that is inventivein law may be largely free from accepting transplants, but not always, even at atime when foreign influence is very important in other matters in the society.Twelfthly, legal rules are invented by a few people or nations, but once inventedtheir value can readily be appreciated, and the rules adopted. Thirtheenthly,

232Dragutin Avramovićsome peoples have been vitally important for the development of private law,like Romans and English.Finally in the chapter ”Afterword”, which appears in the second, 1993edition (the one that is translated into Serbian), Watson responses to criticismsthat has emerged after the 1974 book. He firmly defends his attitude, addingnew arguments in its favor, and a few extra points. One of the most strikingones is importance of availability of donor system, which can be available if itexists in a written form, if it exists in a form easy to be discovered and understood(including its language), and if it is immediately accessible. In the final chapterWatson also stresses the practical dimension of his theoretical attitude: ”Myprimary aims in Legal Transplants were to set the bounds of Comparative Lawas an academic discipline and to see what could be learned from it. But thestudy turns out to have a practical dimension. If borrowing is the main way lawdevelops, and if the lawmaking elite is bound by its legal culture, and if thisculture is restricted by what the elite does not know, then it follows that thequality of legal education, including exposure to Comparative Law (where thatoccurs), plays a powerful role in law reform” (p. 118).This theory has provoked huge reactions among scholars. One of the mostsevere opponents W. Evan says: ”In short, there is ample reason to question thevalidity of Watson’s thesis on legal change and legal evolution. This is indeedimportant for the sociology of law because the corpus of Watson’s work may beinterpreted as undermining the rationale for developing a theory of law andsociety”. 5 However, nevertheless Watson’s theory looks like revolutionary andextravagant, he partially relayed upon ideas of other authors, such as RoscoePound, who stated many years ago: ”History of a system of law is largely a historyof borrowings of legal materials from other legal systems and of assimilation ofmaterials from outside of the law”. 6 Similar thoughts appeared in an olderliterature: already Jeremy Bentham developed a number of utilitarian principlesproper for transplantation purposes, on occasion of adapting English legalsystem to the law of Bengal. 7Besides, Watson’s basic concept is close to an idea of acculturation developedin sociological theory, and in particularly to perspective of legal acculturation,comprehending grafting of one (legal) culture to another (legal) culture. Although5W. Evan, Social Structure and Law, Newbury Park, 1990, 35.6Quoted according to A. Watson, Legal transplants, 22.7Quoted according to J. Carbonnier, Sociologie Juridique, Paris, 1978, 76.

Alan Watson: Legal Transplants – an Approach to Comparative Law 233this concept was more connected to primitive societies explaining theirtransformation into civilization, it can be generally related to legal systemsin general. Majority of scholars are of opinion that acculturation can neverachieve full success, for if everything is determined by social environment, anytransplantation regardless social circumstances is an adventure and, in any case,must result in deformation of the transplanted element. 8 Since the system issupposed to be in balance, to remove its particular part means to endangerentirety to be ruined. 9 In that sense certain objections can be raised againstWatson’s particular argumentation: e.g. in his favorite example of the mostimpressive transplant – one of the Swiss Civil Code in 1926 Turkey, which tookplace mostly due to fact that then Turkish Minister of Justice Mahmut EsadBozkurt studied law in Switzerland (p. 115) – Watson neglects the fact that eventhere a certain kind of ”rejection of foreign body” had to appear. Namely,according to standards of Swiss model the marriageable age in the TurkishCode was posted at 20 years for men and 18 years for women, but by a strongpressure of social needs it was reduced to ages of 17 and 15 in 1938. All marriagesconcluded previously according to customary law, contrary to the Code, wereconvalidated. But, to be true, Watson himself pays a significant theoreticalimportance to the ”rejection problem”, so that he can not be blamed for notpointing to it explicitly in all particular occasions.It is understandable that Watson’s most persistent opponents are Marxists(as he does not pay sufficient attention to economic determination in lawmaking process) and sociologists (as it is expected that law reflects conditions ina society, while transplantation may contradict that axiom). However, it seemsthat Watson did not underestimate neither economic factors, nor determinationof law by social circumstances. With his view he step far away from previousparticular observations on theoretical importance of reception of law, which is anotorious historical phenomenon, which can not be neglected (starting with themost famous example of Roman Law reception 10 ). One of his advantages is thathe based his theory of legal development upon extraordinary rich historicalmaterial, as well as on his comprehensive and detailed knowledge both of8J. Carbonnier, 197.9J. Carnonnier, 194.10One should differ notions of receptions in legal history and sociological concept ofacculturation. While reception usually comprehends acceptance of a legal system as a whole,legal acculturation usually refers to acceptance of particular legal institutions.

234Dragutin AvramovićCommon Law and of Civil Law legal system. Specific value of his view, oftenneglected by critics, is his compromising attitude towards evolutionary theory.For, Watson does not ignore importance of different factors potentially influencinglaw-making processes. He only stresses importance of transplantation impactand considers it decisive in some cases, depending on specific social and historicalcircumstances. Nevertheless numerous criticisms, such a compromising attitudeleads basically to a certain kind of integral comprehension of law origin. Thisfact is rarely mentioned in literature, stressing mostly Watson’s weaknessesby insisting on legal transplants significance. Opponents usually emphasize hisappraisal of a pure chance and of misunderstandings in transplantation processes,accusing him for introduction of voluntarism and absence of regularities inlegal development. However, ”Mr. Chance” (as famous Serbian writer MilošCrnjanski would have said), although overstressed at times, has got a proper placeamong a variety of elements respected by Watson in explaining legal changes,and legal transplants are in general quite properly balanced with other factors oflegal development.

VThe Legal and Political System of the USA1 Prof. Dragan Bataveljić, PhDFaculty of Law, Kragujevac, SerbiaConteporary Constitutional System in the United Statesof America2 Ivana Tucak, LL.M, AssistantFaculty of Law, Osijek, CroatiaA Theory of Sovereignty Under the Federal Constitution3 Gordana Mitrović, LL.MNovi Sad, SerbiaRobert Nozick: Anarchy, State and Utopia

1 Prof. Dragan Bataveljić, PhDFaculty of Law, Kragujevac, SerbiaCONTEMPORARY CONSTITUTIONAL SYSTEMIN THE UNITED STATES OF AMERICAAbstract: In the opening paragraphs, author calls attention on creationand historical development of the first and most illustrious of federations in theUSA. Constitution of the United States, ratified in 1787., owing to its original andinovative approach is generally considered a doyen among all other constitutionsof the world. Furthermore, principle of separation of powers is treated in somedetail, in its ’rigid’ form which represents a basis for organisation of powersaccording to the U.S. Constitution. Original presidential system, constitutionallyestablished in 1787., deserves, being stable yet complex system of government,prominent position in the U.S. Constitution analysis. Essay also contains analysesof legislative, executive and judiciary powers in their own merits, whilst specificattention is drawn upon the relation between legislative and judiciary powers ofgovernment.Key words: USA, Constitution, branches of government, judiciary power,executive power, legislative power, Congress, President of the USA, House ofRepresentatives, Cabinet, impeachment, Supreme Court, right of vetoIntroductionNorth American continent was discovered in late XV century, and had beenpopulated slowly, mostly by European newcomers. The process of populatingthe country started as early as XVI century and continued, with increasingintensity, during XVII century, the biggest source of new inhabitants havingbeen United Kingdom. The process reached its apex in XVIII century, andretained somewhat lower yet steady pace until present time. Early inhabitantsstarted establishing separate colonies, which functioned as constituents of greatBritish Empire; first thus founded colony was Virginia in 1607., and the last one

238Dragan Bataveljićwas Georgia in 1732. All colonies shared similar organisational structure, withcertain, more or less subtle, differences: the head of executive power was governor,appointed in London 1 ; a sort of legislative power was exercised by a body ofrepresentatives, and judiciary power was identical in all areas and draftedaccording to its English precursor. The local government was an exact copy ofits British counterpart, complemented with town meetings as a form of directdemocracy, whilst common law enjoyed same level of esteem as in England.Due to the great distance and difficulties in communication, as well asincreasing antagonism against English crown which tried to impose new taxesand effectively limit the freedom of trade, spirits got stirred in the colonies. Sucha state led to meeting the so-called First Continental Congres in Philadelphia in1774., composed of the representatives of thirteen American colonies, and inturn provided for the Second Continental Congres in 1775. The SecondCongress deliberated a decision to declare war on the British Empire, whilst on4 th July 1776. the famous Declaration of Independence was adopted. TheDeclaration proclaimed 13 colonies independent and war of independence,started in 1776., continued until 1783. Namely, in that year Great Britain wasforced to sign a peace treaty in Versailles and thus formally recogniseindependence of its former American colonies. In the meantime, the SecondContinental Congress formally established a loose confederation by passing theArticles of Confederation and Perpetual Union. The document became effectiveduring 1777., but was eventuall ratified by all states no sooner than 1781.During the course of year 1780. all thirteen newly founded states adoptedtheir own Constitutions which often displayed numerous differences, but allproclaimed notion that authority dwelled in people and the organisation ofpowers was to be separated into legislative, executive and judicial branches. 2Constitutions of Massachusetts and Pennsylvania were used as prototypes forthe Constitution of United States since American confederation functioned asrather loose organisation and weak tie among the states. Many practical obstaclesto seamless functioning of the Confederation provoked all states to reachunanimous decision and call for constitutional assembly in 1787. in Philadelphia;the assembly not only surpassed its initial taks of revising the Articles of1 The colonies were located some 3000 miles away from London, the only availabletransportation having been sailboat, journey on which could last for several weeks.2 It should be, however, noted most of the constitutions gave precedence to legislative overexecutive powers, the main representative of latter being the governor.

Contemporary Constitutional System in the United States of America 239Confederation, but managed to adopt and ratify new Constitution, a doyenamong constitutions of the world and presently in effect in all fifty states,containing only 27 amendments.Name and flag of the United States of America represent the federalcharacter of the American state. The notion of ”federal state” indicates thepresence of political system equally distributed among the constituent states,effectively making them on the one hand independent decision centres and onthe other mutually influential participants, thus improving the ”commoninterest” of a nation.Principle of Separation of PowersDoctrine concerning separation of powers originates from such works as”Two Treatises of Government” and ”The Spirit of the Laws”. Authors are JohnLock and Charles Montesqieu, respectively, the latter one generally beingconsidered the founder of the doctrine of separation of powers.First written Constitution on the American soil was passed on June 29 th1776. by general convention of state of Virgina, which contained in its thirdparagraph the most precise and clear statement defining separation of powers,save the anteceding English ”Instrument of Government”. Acording to theparagraph, ”the legislative, executive, and judiciary department, shall be separateand distinct, so that neither exercise the powers properly belonging to theother... except that the Justices of the County Courts shall be eligible to eitherHouse of Assembly.” 3 The principle of separation of powers was also includedin the constitutions of Pennsylvania (1776), North Carolina (1776), Georgia(1777), New Hampshire (1777), Massachusetts (1780) and Vermont (1784).However, separation of powers was primarily exercised and acknowledgedin verbal form! In spite of normative separation of state functions into legislative,executive and judiciary and their distribution onto three distinct bodies, doctrineof separation of powers meant very little in the period from 1776-1789., sincethe version of pure separation of powers was adopted which left no place forany sort of controlling or ballancing mechanism.USA had got their first Constitution in 1787. The Constitution affirmedthe principle of separation of powes despite the lack of any specific provisions3 Sources and Documents Illustrating the American Revolution 1764-1788, 1970., text ofConstitution of Virginia, p. 152

240Dragan Bataveljićdefining it. Three opening articles outlined legislative, executive and judicialbranches of power in such manner that ”all legislative powers herein grantedshall be vested in a Congress of the United States, which shall consist of aSenate and House of Representatives” (article 1), ”the executive power shall bevested in a President of the United States of America” (article 2), whilst ”thejudicial power of the United States shall be vested in one Supreme Court”(article 3). 4The main American contribution to European theory of separation ofpowers lies, principally, in the idea people is not only represented by legislativebut also head of executive power, therefore underscoring the importance ofexecutive power representatives being chosen by people in the identical mannerlegislative ones are. Another, distinctly American contribution to the doctrineof separation of powers is represented by its emphasis on the judicial branchindependence. In addition, separation of powers is necessary prerequisite tojudiciary control of the constitutionality of the law which depended on theacceptance of the idea of ”checks and balances”, important obstacles to wrongfulexercise of power and authority.Strict separation of powers excluded any possibility for judiciary controlof the constitutionality of the law as it would ensue from the ”checks andbalances” principle, according to American constitution. In the USA, ”pure”doctrine of separation of powers was fugacious as a result of breakage withtraditional forms of power, hence the doctrine was swiftly substituted with theemerging ”checks and balances” principle, whilst in France the changes wouldoccur no sooner than 1814. and 1848. The reason for such development lies inthe fact USA had no troubles with monarchy and aristocracy, since there hadbeen no feudalism in its history. America was an ”empty” country, having noneed to disrupt any form of feudal, but only foreign colonial regime. On theother hand, ”pure” doctrine of separation of powers could have never been fullyexploited in France.What were the circumstances instigating the development of doctrine ofseparation of powers in its ”pure” form, both in XVIII century America andFrance?Ergo, theory of separation of powers was widely adopted and applied inconstitutions of many countries. The Constitution of the USA had been practically4 Excerpts of the original US Constitution text – B.Mitchell – L.Mitchell: ”A Biography ofthe Constitution of the United States”, 1964, Art. I, II, III.

Contemporary Constitutional System in the United States of America 241applying the principle, building its presidential system on it and thus, side byside with the representative body, establishing a very strong executive branch(embodied in the institution of Presidency) and independent judiciary. Theprinciple of separation of powers found fertile ground in many European countriesthereof. Declaration of the Rights of Man and of the Citizen (1789) was first toproclaim ”a society in which the observance of the law is not assured, nor theseparation of powers defined, has no constitution at all.”Stable Yet Complex System of GovernmentConstitution of the USA does not have a single mention of the word”democratic”. At the time, the adjective conveyed the meaning of directdemocracy, the one exercised in ancient city-states and which is still in power incertain Swiss cantons. American political life was characterised with constantrivalry between Capitol (Congress) and White House (President). The rivalry isreflected in legal and constitutional disagreements and competencedelimitations. Politicologist and later president Woodrow Wilson observed thecourse of American history as perpetual cyclic vicissitude between precedenceof Capitol, at one point, and White House, at another.Legislative PowerEven though Constitution of the USA did not formulate the principle ofseparation of powers explicitly it has been, however, implemented in an obviousfashion. Namely, the principle can be distinguished in the strict separation ofjurisdictions among legislative, executive and judiciary powers, ie. main holdersof the three – Congress, President and Supreme Court. Separation is performedin rigid way, so none of the three branches could interfere with the proceedingsof other two. However, since the concetration of powers cannot be exercised tothe full extent neither could the separation of powers be performed literally. Thisindicates the absolute separation of the three branches of power does not exist,since there are various mechanisms which would prevent any of the branchesfrom gaining inappropriately high level of independence, thus making theusurpation of jurisdictions practically impossible.At this point it must be, however, noted that in spite of widespreadacceptance and bicentennial usage of this system of government, certain and

242Dragan Bataveljićinevitable modifications occurred during the period. System of government inthe USA is stable, yet complex system. Certain phases of development of the USAwere charactarised by predominance of Congress, ie. legislative powers, othersby predominance of President, ie. executive power and there were periods whenSupreme Court, ie. judiciary power, prevailed in influence. 5First article of the Constitution vests all legislative power in Congress of theUnited States, which is to hold sessions at least once a year on the first Mondayin December unless other meeting day is specifically ascertained. Congress iscomposed of Senate and House of Representatives. Such bicameral structure ofthe supreme legislative body is shaped by the political system – federalism. USAconstitute a federation which, in fact, function as a state union of both citizensand federal units; citizens are represented in eponymous House of Representatives,whilst federal units vest their power in Senate.House of Representatives consists of 435 members (delegates), eachrepresenting a congressional district and serving a two-year term, whilst theterms are staggered so that approximately one half of the seats are up for electionsemiannually. 6 Certain conditions are imposed on potential candidates, insomuchno one can be eligible for office unless 25 years of age, a citizen of the UnitedStates for at least 7 years, and a resident in the state he or she represents at thetime of election.According to the Article I of the Constitution each state is equallyrepresented by two members in the Senate, who are elected to a 6-year term bya legislative branch of government, with each senator having one vote. Certainrequirements must be met in this case too: a Senator must be 30 years of age, acitizen of the United States for past 9 years, and must reside in the state he orshe seek to represent at the time of election. The Vice President of the UnitedStates is the President of the Senate and serves as its presiding officer, but is nota Senator and does not vote except to break ties. Senate was established as acompromise between centralists and federalists, and given it includes twoSenators from each state (from the total of 50), voted for on general elections toa 6-year term, it indicates the Senate consists of one hunderd Senators.There is one distinct pseudojudicial parliamentary role of the Senate,which has its origins in the XIV century law of England and Wales. It is the so-5 Such occurrence is called courtocracy.6 This provides a continuity of action in House of Representatives

Contemporary Constitutional System in the United States of America 243called impeachment, which vests an exclusive power in Senate to prosecute andadjudicate the United State officials (’officers’).By contrast, in the case of the impeachment of a President the Chief Justiceof the United States presides over the proceedings, yet in order to convictthe accused a two-thirds supermajority of the senators present is required.Impeachment, ie. disqualification, automatically removes the defendant fromoffice and terminates his or hers privileges. Following conviction, the Senate mayvote to further punish the individual by barring them from holding future federaloffice (either elected or appointed), but cannot engage any further. Despite aconviction by the Senate, the defendant remains liable to criminal prosecution.Members of Senate and House of Representatives receive compensationfor their services, as ascertained by law, which is remunerated by U.S. Treasury.Also, they enjoy immunity in all cases, except Treason, Felony and Breach ofthe Peace, and are privileged from arrest during their attendance at the Sessionof the respective Houses, and in going to and returning from the same. Further,Senators and representatives cannot be held liable to legal action for anything theysaid or opined during Sessions. However, they are also subject to incompatibility– none of senators nor representatives are allowed, whilst holding office, to beengaged in any public service of the U.S. government which would be specificallycreated for them, or make possible for their income to increase during thattime. Likewise, none of the officers of the U.S. government cannot be elected toany of two Houses during their service.Powers of Congress are very extensive. Thus, Congress exerts followingpowers:- lay and collect taxes, duties, imposts and excises 7- to regulate commerce, both interstate and foreign and mind generalwelfare of people of the USA- to establish courts inferior to the Supreme Court- to raise and maintain an army and navy and to declare warWithout the consent of Congress neither of states may assess taxes; passexpropriation bills nor laws; coin nor issue money; enter into any agreement orcompact with another State, or with a foreign power, or engage in war, unlessactually invaded, or in such imminent danger as will not admit of delay.7 It is important to emphasise that all taxes, duties, imposts and excises must be unifrom onthe whole territory of the USA

244Dragan BataveljićNew states may be admitted by the Congress into the Union; but no newstates shall be formed or erected within the jurisdiction of any other state; norany state be formed by the junction of two or more states, or parts of states,without the consent of the legislatures of the states concerned as well as of theCongress. The Congress have power to dispose of and make all needful rulesand regulations respecting the territory or other property belonging to theUnited States.On the basis of abovementioned facts, we may safely conclude the Congresspossess rather extensive power. Primarily, Constitution granted the Congressall legislative authority and in turn Congress displayed successful exertion oftheir constitutional rights. However, due to existence of a clause restricting thejurisdiction of state constitutions as well as federal clauses regarding the separationof powers, the course of time had proven Congress unable to perform its legislativeduties only by passing laws and exerting its constitutional prerogatives. This is thereason why Congress activated so-called ”additional rights”. Namely, accordingto the ”theory of concealed powers”, which is implemented in practice, thehighest legislative body of the USA is, if needed, allowed to ”perform legislativetasks on the federal level in other areas which are deemed necessary.The acceptance of theory has increased the authority of Congress to thegreat extent...”In spite of the fact that many Americans regard the power of Congressdecreasing, especially in XX century, American legislature is still considered ”themost powerful parliament in the world”, a ”working parliament” fully capableof exercising its autonomous legislative function and, in terms of restricting theusurpation of government, supervises and controls the executive power. Being a”working parliament”, autonomous in its functioning, Congress is in need ofcomprehensive, highly educated and skilled service and apparatus, as well ashigh level of specialisation. This is true for both Houses, numerous boards,commitees and subcommitees, including individual delegates and senators. Forthat reason, Library of Congress has made the best world library available to theParliament. Further, there is the Congressional Research Service, a public policyresearch arm of the United States Congress, with more than 800 activists.Executive PowerAlmost entire executive power is vested in the President of the USA byArticle II of the Constitution of the United States of America. President holds

Contemporary Constitutional System in the United States of America 245his office during the term of four years together with the Vice-President chosenfor the same term, the method of electing them being rather complex andunique for the USA. It is so-called electoral system: in the USA, the President andVice President are chosen by Electoral college, composed of electors. Namely,each state legislature may choose as many electors as representatives and senatorsrepresented it in Congress. No senators, representatives or federal officers maybecome electors. Ergo, President is chosen by electors, with each state producingas many electors as representatives and senators: the least number being 3 (twosenators and at least one representative). There is a total of 535 electoral places:100 for senators, 435 for representatives and 3 electors of District of Columbia.The capital Washington is not represented in Congress, but falls under thejurisdiction of Congress being a federal district. Every presidential candidate seekto attract the votes of the states with many delegates in House of Representatives,thus many elecotors, as are California and Texas with 32, New York with 33 orIllinois with 22 of them. The numbers are subject to change every 10 years, incase number of inhabitants has increased over the time.The electors meet in their respective states to cast ballots for the Presidentand Vice President, at least one of the candidates not being the resident of the statesthey reside in. Thus a list of nominees voted for will be produced, equipped withstatistics showing the number of votes each of them got. The list – signed, verifiedand sealed – will then be dispatched to the President of the Senate, who would inturn publicly unseal and display the lists in presence of Senate and House ofRepresentatives. The individual with the greatest number of votes (if such anumber represented a majority of electors) became President, and the runner-upbecame Vice President. In case of a tie, the House of Representatives could chooseone of the candidates; if no person received a majority, then the House could againchoose from amongst the five with the greatest number of votes.Obiously, the procedure is rather complicated; the Founding Fathers, inthe well-known work ”The Federalist” outlined political justification of suchprocedure by asserting it would be ”as unnatural to refer the choice of propercharacter for a chief magistrate to the people, as it would to refer a trial of colorsto a blind man.”The President of the United States of America is the head of state of theUnited States, the chief executive of the federal government and Commander--in-Chief of the armed forces and of such part of the militia of the nation as bylegislative provision may be called into the actual service of the Union. Thepresident can issue rules, regulations, and instructions called executive orders

246Dragan Bataveljićwhich have the binding force of law upon federal agencies but do not requirecongressional approval. Another significant power of US President is that ofgranting a full or conditional pardon to anyone convicted of breaking a federallaw — except in a case of impeachment. The pardoning power has come toembrace the power to shorten prison terms and reduce sentences. The Presidentis the federal official primarily responsible for the relations of the United Stateswith foreign nations. He appoints ambassadors, ministers, and consuls — subjectto confirmation by the Senate — and receives foreign ambassadors and otherpublic officials; nominate federal judges, including members of the SupremeCourt and all other US officials, unless otherwise indicated by provisions ofthe Constitution; he manages national affairs and the workings of the federalgovernment, et al.It is safe to conclude the institution of President encompasses broadpowers; however, he could only operate successfully had he, besides his Vice-President, been equipped with well organised concatenation of institutions ofexecutive powers. Therefore, the President is surrounded by a number of personaladvisors for all his duties, which have, in time, developed into presidentialinstitutions:1. Cabinet, consisting of the 14 heads of federal executive departments(secretaries, ie. ministers)2. Executive Office of the PresidentBecause of the vast array of presidential roles and responsibilities, certainrestrictions are imposed on his office, such as limit to the duration of his termon four years, with George Washington saying none of American citizens shouldhold presidential office for period longer than 8 years. Such attitude resulted in1951. addendum to Amendment XXII which said only one reelection is possible.Only Franklin D. Roosevelt was an exception and was elected to three terms inoffice, thus breaking this previously unwritten constitutional rule.Judicial PowerFree and lawfull judicature is one of corner-stones of Americanconstitutionality. Namely, the issues of courts, adjudication, laws and justicewere most seriously raised in earliest phase of development of American states,ie. English colonies. Given that all original states on American soil were underEnglish governance, that educated people mostly came from England and that

Contemporary Constitutional System in the United States of America 247settlers mostly spoke English as their first language, had logical result in Englishlaw having had predominance.Taking all these facts into account, it is not hard to understand whyEuropean theorists of natural law exercised so strong an influence on FoundingFathers and makers of U.S. Constitution, who were convinced American societyand public would benefit greatly from separation of powers as form ofgovernment. Such system of government enabled judicial branch to become,alongside its executive and legislative counterparts, an equal power, establishedin the Constitution itself. In this fashion judicial branch became undisputable,authorative and irreplacable pillar in U.S. political system.American federalism, in conjuction with anglo-saxon tradition, createdjudicature rather difficult and arcane for a foreigner to grasp. Namely, two distinctvertical judicial systems emerged: federal judicature, a tripartite pyramid withSupreme Court of Justice, apellate instances and district courts on the one hand,and multipartite judicature of individual states on the other. Such situationleads to variety of legal interpretions, most of which are based on CommonLaw, which in turn is ignorant of any legal and regulatory codifications andsystematics specific to Roman Law, but induces actual law from previousadjudications, ie. earlier cases tried.The judicial power of the United States is vested in one Supreme Court,and in such inferior courts as the Congress may from time to time ordain andestablish. The Judges, both of the Supreme and inferior courts hold their officesduring good behavior and, at stated times, receive for their services a compensationwhich cannot be diminished during their continuance in office. The judicialpower shall extend to all cases, in law and equity, arising under the U.S.Constitution, the laws of the United States, and treaties made, or which shall bemade, under their authority; to all cases affecting ambassadors, other publicministers and consuls; to controversies to which the United States shall be aparty; to controversies between two or more states and between a state andcitizens of another state.In all cases affecting ambassadors, other public ministers and consuls aswell as those in which any of the states shall be a party, Supreme Court holdsoriginal jurisdiction. In all other cases, aforementioned or hereby not mentioned,Supreme Court holds appelate jurisdiction. Processing of all criminal cases, savethe impeachment, is conducted in the presence of jury. Such proceedings areconducted in the state where criminal act was commited, and if the act was not

248Dragan Bataveljićcommited on the territory of any of the states, trial will be held in the place orplaces decided on by Congress.Relation of Legislative and Executive PowersIt has been a well-known fact President of the USA is vested with muchgreater power than any other democratically elected president or prime minister,even though 1787. Constitution does not precisely define all presidential powershe does enjoy nowadays. Large extension of powers have taken place due tointerpretations of the Constitution by Supreme Court as well as practice of thePresident and Congress.United States of America exert the most prominent form of presidentialsystem, and we can recognise tendency of the Constitution to equalise Presidentand Congress. 8 However, both the Constitution and constitutional practicedetermined certain relation of the President and Congress. Namely, Montesqiuehimself, who developed the theory of separation of powers to its fullest, in hisseminal work The Spirit of the Laws said branches of government were obligedto work in accordance, which means that their complete equality and pureseparation of powers would lead to paralysis of government. Relation of thethree branches of power in U.S. presidential system is based on the principle of”checks and balances”, ie. interdependence exercised through coordination.Every legislative proposal approved by House of Representatives andSenate, prior to becoming law, must be submitted to the President. ThePresident may choose to sign the bill, thereby making it law. The President mayalso choose to veto the bill, returning it to Congress with his or her objections.In such a case, the bill only becomes law if each house of Congress votes tooverride the veto with a two-thirds majority.President and Congress exert different powers and are in relation of pureseparation of powers. Namely, the President during his term (and with theassisstance of his Cabinet) is exercising complete executive power, whilstCongress, being a legislative body, is exercising complete legislative power. Thiswould mean that, principally, neither could interfere with powers and functionsof the other 9 nor could it decided upon the existence of the other (once elected,8 The tendency is to equalise both positions and functions of the two.9 E.g., the President cannot participate in legislative activities whilst Congressional cannotintervene in any aspect of Presidential, executive power

Contemporary Constitutional System in the United States of America 249every government organ is certain to stay in office for the duration of its term).President could not dismiss Congress, nor could Congress recall the President.The relation between the President and Congress is precisely outlined inthe Constitution. However, long-lasting practice has defined and determinedthe relation in larger degree, so that a balance of powers has been created.Namely, in spite of not being responsible to Congress, but Constitution, thePresident is in a certain way related to Congress which is, in turn, tied to thePresident in regard to passing laws. Thus, even though President cannot be heldpoliticaly liable, Constitution holds him criminally liable and therefore subjectto impeachment. The lack of political liability empowers the President withability to make great many independent decisions, yet in case he is suspected tohave commited a criminal act – such as treason, bribery or other high crimesand misdemeanours – House of Representatives is allowed to initiate animpeachment proceedings whilst Senate conducts a trial. There have been threecases of impeachment proceedings against the President of the USA:- Andrew Johnson was impeached in 1868 after violating Tenure of OfficeAct. Johnson was acquitted of all charges by a single vote in the Senate.- Richard Nixon was in prospect of impeachment proceedings after theWatergate scandal (wiretapping). Nixon resigned prior to Houseconsideration of the impeachment resolutions.- Bill Clinton was impeached in 1998 by the House of Representatives ongrounds of perjury to a grand jury and obstruction of justice. He wasacquitted by the Senate.Furthermore, President is obliged to submit all sorts of his financialexpenses for Congress’ to inspect. Consent of Congress is necessary in all casesof appointment of President’s associates and in all important issues regardingforeign policy. Congress exercises influence over President by its sole functionof enacting laws and approving budget, the upper house, ie. Senate having evenwider field of influence. Namely, the Senate may refuse to confirm any Presidentialappointments, even though such appointments are in Presidential power. Inrespect to this, so-called ”Senatorial courtesy” may occur – the President maynot continue with appointment for a federal office unless he sought ”advice andconsent” of the Senators from the state to which the appointment applies. Shouldit happen the Senators do not concur with President’s appointment or that hefailed to seek their ”advice and consent”, other Senators may, for the sake ofsolidarity, exert ”Senatorial courtesy” and deny the President their approval forthe particular appointment.

250Dragan BataveljićPresident must also seek Senate’s approval in the matters of foreign policy,since its advice and consent is required to confirm the ratification of treaties.The Constitution gives the Senate the power to approve, by a two-thirds vote,treaties made by the President; having exercised this power of theirs, Senaterejected a few international treaties of great importance. 10 One might say thesepowers of restriction Congress possess are, actually, offset to powers Presidenthas over Congress, so in an analogous fashion to the right of Presidential veto, a”Congressional veto” was established. It is a power of Congress over the President,enabling them to block certain decisions of his.Regarding their relation in legislative area, it should be noted the Presidentadopts the legislation passed by Congress. The President may exercise the rightof veto on laws passed, but not adopted, and in such cases we may distinguishtwo kinds of vetos: suspensory veto and pocket veto.If President disagrees with any of legislative proposals, in spite of thembeing accepted by Senate and Congress, he may refuse to sign such legislativeproposal and return it to further delibaration within ten-day period. Therefore,suspensory veto may become a powerful weapon in the hands of President.Namely, in order such proposal to be promoted into law, it needs to be overridenby a two-thirds majority of each House of Congress, situation leaving a lot to bedesired.The President must veto legislation within 10 days after it has been passedby both the Senate and the House of Representatives, or else the legislation willbecome law. However, if Congress adjourns before the end of the 10-day periodthe legislation will only become law if the President has signed it, thus it is said”he put it in his pocket”. Accordingly, the President may effectively veto legislationthat was passed within the last 10 days of the congressional session merely bynot signing it into law. This form of veto, which displays effects of absolute veto,earned the name ”pocket veto” and efectively forces repeated delibaration of thelegislation proposed. As a result, the Congress faces a tiresome legal procedureof starting anew – ab initio – that is, from the point of initiating a legislation.This is the source of a sarcastic remark that President is actually a third Houseof Congress.In addition, it is worth mentioning the President is not vested with thepower of giving legislative proposals. Instead, the President is allowed to giveState of the Union Address, an annual event in which the President of the United10 Notable example is Treaty of Versailles in 1919.

Contemporary Constitutional System in the United States of America 251States reports on the status of the country, normally to a joint session of theU.S. Congress, which at the same time serves as Presidential legislative agenda.The Address President delivers have a strong impact on public opinion andbecomes a legislative agenda of the Congress. Contents of the speech, that isinformation of the State of the Union and related programme, is not subject todiscussion. Having finished the Address, the President retires from Congressionalpremises.The term ”Government” (Cabinet) does not appear in the U.S. Constitution.Throughout the practice, the President created some sort of Cabinet, consistingof the heads of federal executive departments, fourteen in number. The heads ofdepartments are named Secretaries, with the head of the Justice Departmentholding the title of Attorney General. They are mostly President’s close friendsand associates who comprise the so-called ’administration’. The U.S. Cabinetresembles a group of Ministers which, in words of James Brice, ”surroundedCzar or Sultan or followed orders of Roman Emperors like Julian or Constantine.”This is not an ordinary government in any respect, nor any sort of homogenouscollective body, but body vested with powers only granted by the Presidenthimself. A comment by Abraham Lincoln is the best illustration of relationswithin Cabinet – ”the only voice that counts is the voice of President.” In Lincoln’sCabinet, half the size of the modern one, sessions were rare occurrence andvotings on certain propositions were carried out only on explicit demand of thePresident, who had the power to overturn the decision of Cabinet members. Onone particular occasion, president Lincoln decided to put his decision to a vote;all Cabinet members, seven of them, voted against President’s decision withonly Lincoln, in the capacity of proposer, voting affirmatively. Voting endingwith Lincolns remark ”We have seven nos and one yes – so it’s a yes”.Relation of Legislative and Judicial PowersElement of great importance in Presidential organisation of powers whichrests upon mutuality of branches of powers by ways of coordination is judicialpower. All judicial authority is granted to the courts, independence of which isguaranteed, yet they are vested with one additional power that cannot be regarded”judicial” with utmost certainty. Namely, in the USA only Supreme Court is vestedwith power to review a law or an official act of a government for constitutionality,the so-called Judicial review. However, the court has the power to strike down

252Dragan Bataveljićthat law or overturn the executive act, if it believes the law or act to beunconstitutional or to be contrary to law. Thus, they are applying Constitutionin direct fashion, which in turn represents exception to constitutionality. Giventhat U.S. courts have an obligation to respect the legal regulations of superiorcourts which latter formulated in their adjudications, these decisions havepractical value of legislation (whilst they should be relevant only for the casetried.)All judicial power is vested exclusively in the Supreme Court, with allinferior Courts ordained and established by Congress – as a legislative category– leading to the development of vast and powerful network of federal courts(along with already established network of state courts). The courts try all sortsof cases, save the impeachment – power constitutionally granted solely to theCongress.The notion of vesting all judicial power to courts, giving high regard tothe idea courts should be separate and independent branch of government, isrevolutionary in its nature, but for many contemporaries (late XVIII, early XIXcentury) the least comprehensible of ideas and not very realistic. However, theinfluence President exercises on the Supreme Court is relatively modest, amongother reasons because he appoints Justices for lifelong tenure. That means thatonce they are appointed they cannot be ousted. The separation of legislative,executive and judiciary branches is implemented by utilising several excellentdecisions which enabled judiciary branch to become an actual third branch ofpower:- The Constitution specifies that courts are only institution with power tointerpret and protect law and Constitution- Justices enjoy the right to hold their offices during good behavior, thusmaking them independent and effectively providing lifelong tenure- Justices receive compensation for their services which cannot bediminished during their continuance in office, and thus have completefinancial independenceResumé of the ConclusionsAll relevant governmental institutions in the United States of America arebased on very complex legal, political, economic and historical criteria, thecomplexity stemming from various theoretical and practical influences the

Contemporary Constitutional System in the United States of America 253system suffered during its development. We are primarily refering to verycomplicated and inconsistent English legal system, French theory and law,specific form of federal organisation, as well as numerous state legal systemswith various peculiarities on their own.The United States of America are democratic entity with firmly establishedlegal system and all characteristics relevant for the Rule of Law which functionin conjuction with developed mechanisms for protection of human rights andliberties. At the same time, they are federation with established and solidgovernment according to the principle of separation of powers into legislative,executive and judicial branches. In spite of the fact that Constitution did notprovide for such principle, it is not difficult to detect that separation of powersis in effect.The principle is most obvious in the strict separation of jurisdictionsamong legislative, executive and judiciary powers, ie. main holders of the three– Congress, President and Supreme Court. Separation is performed in rigidway, so none of the three branches could interfere with the proceedings of othertwo. However, since the concetration of powers cannot be exercised to the fullextent neither could the separation of powers be performed literally. Thisindicates the absolute separation of the three branches of power does not exist,since there are various mechanisms which would prevent any of the branchesfrom gaining inappropriately high level of independence, thus making theusurpation of jurisdictions practically impossible.Legislative power is vested in bicameral Congress, composed of Senateand House of Representatives, a body with absolute legislative authority.Executive power, by provisions of Article II of U.S. Constitution, is vested in thePresident of the USA almost in its totality, hence he exerts wide authority, muchwider than the others. Third power is one of judiciary, ie. free and independentjudicature, which represents the strongest of pillars in American constitutionalityand democracy.

2 Ivana Tucak, LL.M, AssistantFaculty of Law, Osijek, CroatiaA THEORY OF SOVEREIGNTY UNDERTHE FEDERAL CONSTITUTIONAbstract: It is not enough only to study the provisions of the very text ofthe Constitution of 1787 fully to understand the meaning of the sovereignty andthe federalism notions of the United States of America. The constitutionalprovisions should be put within the context of the historical events. Thecomprehension of the relations among the federal government and the memberstates has been considerably changed since the time of the ”Founding Fathers”.Today the federal government keeps a large number of the functions that theframers of the constitution in 18 th century could not even imagine. The decisiverole was played by the Supreme Court of the United States that has been qualifiedas ”a permanent constitutional convention”. So beside the American Revolution,the period of the Civil war and the period of The New Deal, President FranklinD. Roosevelt’s program as a trial response to the Great Depression that marked1930s, have been qualified as the crucial events in understanding of the Americanexperience with the federalism.Key words: sovereignty, sovereign immunity, federalism, state’s rights,constitution1 Introduction Remarks – Sovereignty MeaningAt the very beginning it is important to notice that the notion of sovereigntysince its origin from 16 th century has been applied onto so different situations, andhas been subject to the permanent redefinition in accordance with the historicalcircumstances. The conception that in each state must exist an institution thatis considered as a supreme one prevailed up to the end of the 18 th century. Justthen the American colonists, who fought against the arbitrary actions of theEnglish Parliament, developed a new concept of the sovereignty that allowed its

A Theory of Sovereignty Under the Federal Constitution 255division. By this study we shall try to present the American conceiving of thesovereignty and its development within the frame of the new form of the compoundstate that unites the elements of the unitary state and the confederation. In thisplace we shall only briefly turn to the origin of this concept in Europe.It has been considered that the first one who clearly defined the sovereigntytheory it was the French writer Jean Bodin (1529-1596) in his literary work”The Six Books of the Commonwealth” (Six Livres de la Republique, 1576). Thehistorical circumstances France of his time was in, the chaos that developedfrom the civil war among the Catholics and the Huguenots, induced Bodin tothink how to found the state only by accepting one authority that would have acentral and unlimited power. 1Bodin conceives the sovereignty as the highest, absolute, unlimited,perpetual, original and of laws free power 2 . In the Republic Bodin works on thewhole constitutional law and he differentiates three groups of the states, classifiedin the accordance with the sovereignty holders: monarchy, people state andaristocracy. It is not possible to combine these three forms of the reigns. Sincehe describes the monarchy as the best and the natural form of the reign that iswhy his definition of the sovereignty is not this one that could be applied on toall forms of the reign. Primary the sovereignty appears in the possibility of afree enacting: ”Wherefore let this be the first and chief mark of a sovereignprince, to be of power to give laws to all his subjects in general, and to every oneof them in particular..” 3 If the sovereign would need the consent of the citizens,of the senate or of the people, he would not be sovereign. 4 The sovereign isconsequently, according to the classical Roman doctrine, free of the law obligation(principes legibus solutus est). The sovereign has not been bound by his ownlaws either by the laws of his predecessors. The sovereign has not been boundby his coronation oath either. The customs are in effect only if the sovereignsgive their tacit consent for their validity. 5 Beside enacting, the other characteristicsof the sovereign power are: to declare the war and to make the peace, to namethe most important government employees, to grant pardons, the right on to1Hinsley, F.H., Suverenitet, August Cesarac, Zagreb, 1992, p. 1162Krbek, Ivo, Suverenitet, Rad, JAZU, Knjiga 334, Zagreb, 1964, , p. 80,3Bodin Jean, Šest knjiga o republici (izbor), Zagreb, Politička kultura, 2002, p. 584Krbek, op. cit. P. 82; See also Grubić, Nado, ”Oblikovanje i razvitak ideje monarhijskogsuvereniteta”, Zbornik Pravnog Fakulteta u Zagrebu, 37: 5-6 /1987, p. 8065Grubić, op. cit., p. 807

256Ivana Tucakthe supreme court power, the right to mint coins and the right to determine thetaxes. 6However it is important to point out that Bodin made a sovereign to bethe master only of positive law, but not the master of the law on the wholeeither. A sovereign is only legibus absolutus, but not iure absolutus. 7 At first asovereign is limited by the natural and divine laws. Then a sovereign is limitedby the international law and treaties, ”pacta sunt servanda”. 8 A sovereign is limitedby so-called ”fundamental law” (leges imperii), which preceded the sovereigntyand from which the sovereignty has been derived. These laws concern theinheritance of the throne (on the base of the Salic law).Among Bodin’s followers Thomas Hobbes (1588–1679) particularly standsout. His conceiving of the monarchy sovereignty became more extreme than ofthe original doctrine. Hobbes made his sovereign unlimited in that way that hemade him superior to the natural and the divine laws, what meant the finalbreaking up with the medieval comprehension. However some authors describeHobbes’s doctrine of the monarchy sovereignty as ”a solemn tombstone – a glorifierabove the catafalque of the English absolute monarchy.” 9 In 17 th centuryEnglish constitutional law had the instruments to limit royal power like MagnaCarta libertatum in 1215, Petition of Rights in 1628. As a very important guarantorof the personal liberty appeared Habeas Corpus Act in 1679.In 1688 after the ”Glorius Revolution” the doctrine of parliamentarysovereignty appeared. The Bill of Rights determined that the King was obliged tothe law as well. After Glorius Revolution in England the supreme power was keptby King in Parliament, which is a constitutional law term for that indivisibleentity consisting of King, House of Commons and House of Lords. The supremepower does not come anymore from the divine rights of the King but from theconsent of the people. However after the people have elected the members ofthe Parliament, the Parliament enact the laws independently without any6Grubić, op. cit. p. 808; See also Bodin, op.cit. p. 53-68 (Chapter X – The real characteristicsof the sovereignty).7According to Zvonko Posavec, Bodin, in contrast to the medieval rulers, who were boundby the laws, Bodin merged two competences in one: the competence of the legislation andthe competence of the command. See Posavec, Zvonko ”O suverenitetu” Politička misao,30:4/1993.8Grubić, loc. cit. (notes 6)9Krbek, op. cit., p. 84

A Theory of Sovereignty Under the Federal Constitution 257exterior influence. 10 The classical definition was given at the beginning of 19 thcentury by William Blackstone. According to him the power of the Parliamentis the absolute one, ”what the Parliament doth, no authority upon earth canundo”. 11 The only limitations of the sovereign’s will are the limitations that heimposes himself voluntarily.2 The Federal ConstitutionIn 1776 the rebellion of the colonies was not exclusively the reaction tothe actual politics of the English Parliament but the reaction to the doctrine onthe supremacy of the Parliament. 12 In the North America the English reproducedthe civilization of their home-land in the new colonies, but the Parliamentpractice in the aspect of the elected representative parliaments of the colonistsas well. 13 During 1760s and 1770s in order to make the imperial powerstronger, the Parliament started enacting the laws, which the colonistsconsidered to be opposite to the basic principles of the English constitution.This concerned to the strengthening of the executive power of the governors onthe bill of the assemblies, then to the introduction of the professional army, tothe tax rate regulations without colonists’ consent, to the suspension of thecolonial assemblies. James Wilson will point out that the colonists ”tend towardthe defense and the reestablishment of the rights of the colonies.” 14In July 1776 the colonies declared their independence. The Declaration ofIndependence proclaimed them as thirteen free and independent states. In 1777they united in the Confederation; they established a weak central power thatexperienced the failure because of the military, diplomatic and commercefaults. The Congress as the central body had only the coordination authorities,10Krbek, op. cit., p. 9111Sir W. Blackstone, Commentaries on the Law of England, Edition 16, Butterworths, 1825.,Vol. 1, Book 2, p. 160, 161, cit. according to Siniša Rodin, Europska integracija i ustavnopravo, Zagreb, 1997, p. 12312Amar, Akhil Reed, Of Sovereignty and Federalism, 96 The Yale Law Journal, 1425 (1986-1987), 143013Podolnjak Robert: Federalizam i republikanizam, Stvaranje američkiog Ustava, Barbat,Zagreb, 2004, p. 3714Legal Right to Form a Government. The Annals of America, Encyclopedia Britannica Inc.Chicago 1976, 2; 418-419; cit. according to Podolnjak, op. cit. p. 39

258Ivana Tucakwithout any mechanism to drive the states and the citizens to carry out itsregulations. In 1787 in Philadelphia during the constitutional discussions asevere conflict broke between the federalists, who advocated the strengtheningof the federal Government and the anti-federalists, who were opponents to theConstitution and they defended the sovereign constitutional rights of thefederal units in regard of existing constitutional act – Articles of Confederation,1777. 15 The question where should be the sovereignty in the American federalsystem, as it can be seen from the notes of the discussions, was considerably lesspointed out; its real importance this question will show in the years thatcome. 16 At the Convention most representatives were not inclined to thesolution that the full sovereignty should have to be in one or in the othergovernment. There were no them who advocated an unlimited government, thesovereign one as per sample of the English concept of Parliamentarysovereignty. 17 At the time of the Constitution origin the opinion was that theprinciple of the divided sovereignty was the most appropriate one to thecombined state form as it was of USA. The Federalists will particularly insist onthat principle, what can be seen in the political essays, that were published indaily press, and which had the main purpose to affect the decision of therepresentatives of New York State to ratify the Constitution text, where thedivision of the sovereignty was mentioned several times. Later they werepublished in a special collection of Federalist, whose authors James Madison,Alexander Hamilton and John Jay, hid under the pseudonym Publius. Todaythis collection represents the most significant source for studying the intentionsof the constitution framers, and many authors turn to these intentions in theirdiscussions on the contemporary state of the American constitutional system.Especially to Madison, who in Federalist No. 39 pointed out that thejurisdiction of the central government ”...extends to certain enumerated objectsonly, and leaves a residuary and inviolable sovereignty over all other objects to15Smerdel, Branko, ”Američke teorije federalizma, uvodna studija” za: Vincent Ostrom,Politička teorija složene republike, Zagreb, 1989, p. 316Podolnjak, op. cit. p. 21217As pointed out by James Madison in Federalist No. 51.The Constitution provided ’a doublesecurity’ against the power concentration in one place, since the power has been dividedbetween state and federal government and among the departments of the national governmentas well. The structure of government must provide the proper checks and balances amongthe different departments.Text available on www.yale.edu/lawweb/avalon/federal/fed51.htm

A Theory of Sovereignty Under the Federal Constitution 259several States.» 18 The anti-federalists opposed bitterly to this idea of the dividedsovereignty.For the definitive standpoint concerning the sovereignty in the Americanfederal system has been considered that one offered by James Wilson at thetime of the ratification polemics: ”my position is, that the sovereignty resides inthe people. They have not parted with it; they have only dispensed such portionsof power as were conceived necessary for the public welfare... When the principleis once settled that the people are the source of authority, the consequence isthat they may take from the subordinate governments powers with which theyhave hitherto trusted them, and place those powers in the general government,if it is thought that there they will be productive of more good.” 19 Although thisnotion is unknown to the Constitution of the USA, we can find it in the firstsentence of the Constitution: ”We the People of the United States...”. However,here then a question gets opened: whether there is the sovereignty in the peoplein its state features, what supported Chief Justice John Marshall in McCullock v.Maryland, Abraham Lincoln and Woodrow Wilson or the sovereignty belongsto the people in the state features, what many theoreticians considered – fromJefferson to the representatives of so-called state’s rights school of John Taylorand John C. Calhoune. Calhoune considered that the federal constitution was acontract among the sovereign member states. Each member state can in the sameway it became the member, to leave the federation, to convoke the constitutionalconvention and to recall the previous act on the ratification. So the secessionappears to Calhoun as the constitutional right of the member states. The end ofthe Civil war and the defeat of eleven southern states provided the final solutionconcerning the possibilities of the practical application of this doctrine. 203 The Development of the Constitutional LawAs we have pointed out, the very Constitution neither mentions the termsovereignty nor it defines precisely the areas that are in the exclusive competenceof the states and those ones that are in the competence of the federal government,what in the years that followed endangered the steadiness and the efficiency of18Podolnjak, op. cit., p. 21319Podolnjak, op. cit. p. 21520Čavoški Kosta: Ustavnosti i federalizam, Sudska kontrola ustavnosti u anglosaksonskom federalnimdržavama, Savremena administracija, Beograd, 1982, P. 179

260Ivana Tucakthe federal system. Here a need for an appropriate arbiter in the federal relationsappeared, and this role was granted to the Supreme Court. 21 It can be said thatevery more important American transformations of the relations among thefederal government and the member states are not the result of the constitutionalamendments but of the court interpretation.3.1 The Establishment of the Supreme Powerof the Federal GovernmentIn the first decades the practice of the Supreme Court in general was inthe favor of the competence extension of the federal government. Here the roleof John Marshall, the Chief Justice of Supreme Court was particularly great.During Marshall’s presidency the Supreme Court enacted series of the decreesthat were in the favor of them who supported stronger central power and largercompetences of the Congress and to the detriment of the protectors of thestate’s rights. Here as the key decisions are the early decisions that appear in thedisputes McCulloch v. Maryland, Martin v. Hunter’s Lessee, and Gibbons v.Ogden. In these disputes the Supreme Court gave its interpretation of certainsections of the Constitution, specifying the conditions of the relations amongthe federal government and the member states.McCulloch v. Maryland 22 is far the most important case concerning theestablishment of the supreme power of the federal government. Before theSupreme Court appeared the case, where it was necessary to decide concerningtwo subjects: (a) whether Congress constitutionally possesses the power toincorporate a bank and (b) in that case have the state governments (in this casethe State of Maryland) power to tax it? While having made his decision, ChiefJustice Marshall relied on the extensive interpretation of Article 1, Section 8 ofthe Constitution that authorizes the Congress to make all laws which shall benecessary and proper to carry out its mentioned authorizations. Chief JusticeMarshall interpreted extensively this provision since in the Constitution there isno provision which, as in the articles of confederation, excludes incidental orimplied powers and request that everything granted shall be explicitly andprecisely described. 23 ”Let the end be legitimate, let it be within the scope of the21Ibid., p. 7122McCulloch v. Maryland, 4 Wheat. 316 (1819)23”Even the 10 th amendment... omits the word ”expressly” and declares only, that thepowers ”not delegated to the United States by the Constitution nor prohibited by it to the

A Theory of Sovereignty Under the Federal Constitution 261constitution, and all means which are appropriate, which are plainly adapted tothat end, which are not prohibited, but consist with the letter and spirit of theconstitution are constitutional.” 24 After the positive response to this question,the Chief Justice Marshall determined that the authorization to tax is theauthorization to destroy. The state governments can not tax the operations of thefederal government, once the procedure of the Constitution adoption has beeninitiated, the newly founded government has got its sovereignty from the citizenry,the sovereignty which is out of the control of the states. The decision was foundedon the conviction that the federal government is supreme within the sphere of itswork, although limited in its powers. 25 The Constitutions and the laws thathave been enacted to perform these authorizations are superior to theConstitutions and the laws of the states and can not be subject to their control. Thisverdict founded the rule that the Congress have the implied powers to find thenew forms of the legislative standardization by the selection of the appropriatemeans, whenever the Congress find themselves in the new unexpectedcircumstances. 26 That is why this provision has been called elastic or flexibleone. Just with the help of this provision the Congress will significantly increasethe work scope of the federal government within next two centuries.Marbury v. Madison (1803) 27 was the beginning of the Supreme Courtcontrol of the constitutionality of the federal laws. In Martin v. Hunter’s Lessee(1816) the Supreme Court passed the judgment that it had the authority torevise the judgments of the courts of the states that requested the interpretationof the federal laws. 28 That was made on the base of the ”supremacy clause” ofthe Constitution (Article VI) that determines that: ”The Constitution, and theLaws of the United States which shall be made in Pursuance thereof; and allStates, are reserved to the States respectively, or to the people”. According to Marshall thatis so because the people, who adopted this amendment, experienced troubles that resultedfrom inserting these words in the articles of confederation. Ibid, p. 40724Ibid, p. 42225Ibid, p. 40726Čavoški, op. cit., p. 9427Marbury v. Madison, I. Cranch 137 (1803)28Martin v. Hunter’s Lessee, 1 Wheat. 304 (1816). Having compared the decision against theconstitutionality of the acts of the Congress and of the states, John Calhoun concluded thatthe former one acts as a limitation on the au-thorities of the federal (central) government,but the latter one acts as its extension. The address on the veto, Febru-ary 1842, accordingto Podolnjak, op. cit. p. 398.

262Ivana TucakTreatise made, or which shall be made, under the Authority of the UnitedStates, shall be the supreme Law of the Land; and the Judges in every State shallbe bound thereby, and Thing in the Constitution or Laws of any State to theContrary notwithstanding.”In Gibbons v. Ogden (1824) 29 for the first time the Supreme Court wasengaged in the discussion on the federal government’s power under the CommerceClause. This Commerce Clause there is in Art. 1, sect. 8, point 3 of the AmericanConstitution. In accordance with this clause the Congress has been authorized”to regulate the commerce with foreign states, and among the several States andwith the Indian tribes.” The Commerce Clause is of the exceptional importancefor understanding the nature of the federalism. Namely, one of the main reasonsthat led to the origin of the federation was to find out the way to prevent themember states to impose a number of different limitations, taxes and bans thatcause damages to other member states. 30 That is the reason why the federalbodies get the great powers in the sphere of the commerce and the sales. Thisconstitutional provision has been defined wide and vague, it does not define”the interstate trade” and the scope of the authorizations of the Congress, whathas given a significant role to the courts in solving the lawsuits that have resultedfrom the division of the authorizations in the sphere of the commerce. 31 That isthe reason why the importance of this provision increased or decreased duringits application, in accordance with the changes in the ruling doctrine of thejudges of the Supreme Court.In Gibbons v. Ogden it was set up the question of the constitutionality ofthe New York State Law that established the monopoly on the steamship travelin its water. The plaintiff referred to the Federal Coasting Act (1793) in order toeffect the right on shipping between New York and New Haven. Chief JusticeMarshall declared the law of the New York State to be unconstitutional on thebase of the Supremacy Clause and the extensive interpretation of the CommerceClause of the Constitution. Chief Justice Marshall pointed out once more thatthe invalidity of any act, which is opposite to the Constitution, results from thedeclaration that the Constitution is the supreme law. 32 That meant that in thecase of the concurrent competence, that is in the sphere where the competences29Gibbons v. Ogden, 9 Wheat. 1 (1824)30Čavoški, op. cit, p. 10731Bowles, Nigel, Politički sustav SAD-a, Osijek, Zagreb, Split, 2003, p. 24532Gibbons v. Ogden, 9 Wheat. 1 at 210-211 (1824)

A Theory of Sovereignty Under the Federal Constitution 263of the federal government and of the government of the member states overlap,the laws that were enacted by the Congress on the base of the Constitution orthe treaty concluded in the name of the United States, derogate the acts of thelegislative bodies of the member states, although they were enacted within thefield of their authorizations that are not controversial.Chief Justice Marshall rejected the narrow interpretation of the power ofthe Congress on the commerce, which should be in conformity with the theoryof the states’ rights since ”that narrow construction would cripple thegovernment, and render it unequal to the object for which it has been declaredto be instituted...” 33 In this case Chief Justice Marshall gave a wide definition ofthe word ’commerce’ that does not include only buying and selling of the goods.”Commerce, undoubtedly, is traffic, but it is something more: it is intercourse.It describes the commercial intercourse between nations, and parts of nations,in all its branches, and is regulated by prescribing rules for carrying on thatintercourse. ”34 After Chief Justice Marshall had gone, his successor on the placeof the Chief Justice of the Supreme Court Roger Brooke Taney supported thedefense of the integrity of the states and their residuary powers. He thought thatthe true meaning of the Commerce Clause was that the federal governmentshould enable the smooth commerce functioning, to concentrate on preventingand eliminating of the difficulties, its power should be the negative one. Thisinterpretation assumes the free market and economy. So it is particularlyimportant decision made by the Supreme Court in Colley v. The Board ofWardens of the Port of Philadelphia 35 , where it was pointed out that the commerceactivities at the local level, in the absence of the federal law, could be regulatedby the law of the member state as well.3.2 The Civil War and the Concept of Dual SovereigntyAt the time of the Constitution origin the representatives of the strong statesovereignty were the progressivists. 36 They pointed out that thedecentralization enables the larger freedom and the participation of the citizensin the political life. The most prominent representative was Thomas Jefferson,33Ibid, p. 188-18934Ibid. p. 1893512 Howard 299, 185236Gey, Steven G., The Myth of State Sovereignty, 63 Ohio St. L. J., 1601, 2002, 1606

264Ivana Tucakwho said for the federal government to be ”the most corrupted government inthe whole world.” 37However in the period before the Civil War began, the representatives of thestrong state sovereignty had started identifying themselves with the conservativereasons. The question of the sovereignty was connected to the question of therace. The southern states insisted on the rights of the states, which included thenullification right as well (the idea that the member state government is allowedto declare a certain action of the federal government to be invalid one) and theright on the secession. 38The Civil War meant the end of such ideas and confirmed ”perpetuityand indissolubility of the Union.” That was confirmed in Texas v. White (1869)by the Supreme Court during the mandate of Salman Chase: ”When, therefore,Texas became one of the United States, she entered into an indissoluble relation.”However it does not mean the end of the separated existence of the member states:”the preservation of the States, and the maintenance of their governments, areas much within the design and care of the Constitution as the preservation ofthe Union and the maintenance of the National government.” 39 So in thedecades after the Civil War the Supreme Court accepted the doctrine of the dualsovereignty, the concept where the federal government and the governments ofthe member states are sovereign, and each one have exclusive control over theirrespective areas of authority. 40 This theory has been based on the TenthAmendment, where the federal government has got the authorization only onnarrowly defined constitutional tasks, and the supreme power over anythingelse belongs to the governments of the member states.Within this period the Supreme Court left Marshall’s wide interpretationof the competences of the federal government under the aspect of the interstatecommerce settling. 41 The Supreme Court expressed its standpoints through the37Smerdel, op. cit., P. 938K. Janda, J.M. Berry, J. Goldman, Izazov demokracije, vladanje u Americi, Durieux, Zagreb,1999, p. 7239Texas v. White, 7 Wallace 700, at 725 (1869)40Edward S. Corvin points out: ”Although the Supreme Court as the organ of the nationalgovernment interprets the Constitution, it does it in compliance with the Constitution thatacknowledge the sovereignty and independence of the states within the range of theirauthorities.” According to Smerdel, op. cit., p. 1241At the end of 19 th century the Supreme Court accepted the basic structure of the dormantCommerce Clause that has been still characteristic for the Constitutional law. In this system

A Theory of Sovereignty Under the Federal Constitution 265decisions that referred to the all-inclusive federal laws that referred to the industryand the economy regulation in Kidd v. Pearson (1888) and United States v. E. C.Knight (1895). In these cases the theory frame was set up that would dictate thedecisions of the Supreme Court until the middle of 1930s. In these cases it wasshown as well that there was the connection among the sovereign states and theeconomy theory of the period, through the assumption that the market gravitatestoward the natural balance of the supply and demand and to the profoundopposition to every state intervention on the market (laissez faire). So theSupreme Court deprived the federal government of the possibility to determinethe minimal national hourly wage and the work conditions.Kidd referred to the state regulation of liquor production intended for thedelivery to other states. The question was set up if the liquor production couldbe considered for ”the commerce” in the sense of the Commerce Clause of theConstitution. The Supreme Court considered that the production and thecommerce had not the same functions and it saw them as two different parts ofan uncoordinated follow-up of the events. That led the Court to the conclusionthat the state regulation did not break the authorizations of the Congress, that itregulated the interstate commerce since the production process had a localcharacter and it was exclusively subject to the regulation by the state. 42 For theSupreme Court of this period that was worried what impact should have hadthe national regulation on the state sovereignty, it had been an irrelevant factthat the problems that appeared at the production level, would inevitably havethe impact on the sales of the final products. 43In the case United States v. E. C. Knight Co. (1895) 44 the Supreme Courtpassed the judgment that the application of the Sherman Antitrust Act (1890)on the American Sugar Company that tried to monopolize the sugar productiontaking the control over five residuary independent sugar refineries should beunconstitutional.of the interstate commerce regulation, the states have been allowed to regulate the interstatecommerce, unless their laws discriminate or charge the interstate commerce. But the federalgovernment can preempt that state regulation, simply by adopting the opposite politicsthrough the federal legislative or through an administrative action. See Rahrer 140, U.S. 545(1891) See also Gey, op.cit., p. 1611.42Kidd v. Pearson,128 U.S. 1 (1888)43Gey, op. cit., p. 161544156 U.S. 1 (1895)

266Ivana TucakGradually the Supreme Court started supporting the federal laws thatused the Commerce Clause for other regulatory purposes. At the beginning ofthe 20 th century there were enacted the laws on the interstate commerce of lotterytickets, spoiled food and prostitutes. However in the case Hammer v. Dagenhart(1918) the Supreme Court declared the Child Labor Act to be unconstitutional,since in the contrast to earlier mentioned acts, the products of the child labor,which circulated among the states, were not harmful. 45 According to theSupreme Court the protection of the state sovereignty from the TenthAmendment covers the regulation of the domestic commerce and all inherentlylocalized economy activities. And in Bailey v. Drexel Furniture Co. (Child LaborAct – Taxing Child Labor) the Supreme Court had concluded that the federallaw that would have concerned to the taxing of such activities, would have beenthe threat to overthrow all constitutional limitations of the Congress andcompletely to cancel the sovereignty of the states. 463.3 New Deal PeriodIn this period the Supreme Court gave up the efforts precisely to determinethe borders among the federal and the states’ governments. The Supreme Courtpassed the Social Security Act and the National Labor Relations Act, 1937. Inthe case United States v. Darby (1941) the Supreme Court passed the judgmentunanimously that the Congress had the authorization to place a ban on thesupply of the products made by child labor, what vacated the judgment inHammer v. Dagenhart. That was the end of the dual federalism doctrine, of theabsolute conceiving of the sovereignty whether of the states or of the nationalgovernment. 47 The Supreme Court marked the Tenth Amendment as a selfunderstoodtruth. The Congress power can be carried out to the extreme limits,45Hammer v. Dagenhart, 247 U.S. 251 (1918)46Bailey v. Drexel Furniture Co. 259 US 20 at 38 (1922)47The scholars consider that in this period the theory of the dual sovereignty was replacedby the theory of the cooperative sovereignty, which accordingly, in this period the federaland state functions overlap more and more. The federal government and the governmentsof the states divide the power and they do their tasks together. The theory was founded onthe elastic Constitution provision (Art. 1, Sec. 8), which grants to the Congress the competence”to make all Laws which shall be necessary and proper” to carry out its mentionedauthorizations as well as on the constitutional provision on the supremacy of the federallaws and the Constitution (Art. VI). Janda et. al., op. cit., p. 67.

A Theory of Sovereignty Under the Federal Constitution 267foreseen by the Constitution. This power can be neither reduce nor expandedby carrying out or not carrying out the state authorities. ”Congress, followingits own conception of public policy concerning the restriction which mayappropriately be imposed on interstate commerce, is free to exclude from thecommerce articles whose in the states for which they are destined it may conceiveto be injurious to the public health, morals or welfare...” 48 Since then regularlythe Supreme Court has given the advantage to the federal government in regardto the member states.4 New State SovereigntyHowever at the end of 20 th century the Supreme Court, its conservativefive-member majority, revived the concept of the state sovereignty through theseries of its decisions. The Supreme Court used the concept of the state sovereigntyto extend the authorities of the state governments and at the same time to limitthe federal government in each area where their functions overlapped.4.1 National League of Cities v. UseryIn this case, just like in its decisions concerning the state rights in theperiod before 1937, the Supreme Court referred to the Tenth Amendment. Thequestion was set up: Can the amendments of the Fair Labor Standards Act,1974, be applied on to state and local governments as the employers. Writing inthe name of the majority Justice Rehnquist pointed out the standpoint that thisact could not be applied on those aspects of the state employment that cameunder ”the integral governmental functions of these bodies”. The Congress couldnot use its regulatory authorities (the Commerce Clause) over ”traditionalgovernmental functions”. 49 In this way among the judges of the lower federalcourts and in the very Supreme Court the question what meant the standard of”the traditional governmental functions” was opened. In the practice it provedto be inapplicable.48United States v. Darby 312 US 100 at 117 (1941)49”If Congress may withdraw from the States the authority to make those fundamentalemployment decisions upon which their system for performance of these functions mustrest, we think there would be little left of States’ ”separate and independent existence.”National League of Cities v. Usery, 426 US., p. 833 at 853 (1976)

268Ivana TucakThat contributed to the fact that the Supreme Court rejected NationalLeague of Cities v. Usery, 1985, by the decision Garcia v. San Antonio MetropolitanTransit Authority (1985). 50 Justice Blackmun, as the loudspeaker of the majority,rejected the attitude that the Supreme Court could use a special concept on thestate sovereignty when judged the authorities of the Congress according to theCommerce Clause. The sovereign rights of the states are to be realized by thepolitical process.In the cases after Garcia, once more the decisions of the Supreme Courtpointed out the importance of the states within the federal system of USA. Sothe Supreme Court protected the law and political integrity of the states in NewYork v. United States (1997), when the Supreme Court declared the provisionsof the federal act (Radioactive Waste Policy Act) unconstitutional ones, thatrequested that state legislators to take certain steps, what the federal governmentaccording the Constitution was not authorized to do. 51 In United States v.Lopez (1995) the Supreme Court considered that the ban of carrying the weaponin the schools exceeded the authorities of the Congress according to theCommerce Clause. 524.2 The Eleventh Amendment JurisprudenceIn one of the key spheres of the contemporary jurisprudence the SupremeCourt created a contradictory doctrine that allowed the state governments torefer to the sovereign immunity on the responsibility for violating the Constitutionand the federal acts. In the case Chisholm v. Georgia, 1972, the executor of aSouth Carolina merchant brought an assumpsit action in the Supreme Courtagainst the state of Georgia for the breach of a war supplies contract. Georgiarejected the court hearing and submitted the objection in writing having referredto the state ”sovereign” immunity from suit. The decision in the favor of theplaintiff caused the stormy reactions among the states, 53 what resulted inadopting the Eleventh Amendment of the Constitution in 1798, which50469 U.S. 528 (1985)51New York v. United States, 521 U.S. 898 (1997)52United States v. Lopez, 514 U.S. 549 (1995)53Chief Justice John Jay ”...the sovereignty of the nation is in the people of the nation, andthe residuary sovereignty of each state in the people of each state.” Georgia agreed to thesuit of the citizens from the other state in the way that Georgia became a party of the nationalcompact. Chislom v. Georgia, 2 US, 419 at 471, 474, (1793)

A Theory of Sovereignty Under the Federal Constitution 269determines: ”The Judicial power of the United States shall not be construed toextend to any suit in law or equity, commenced or prosecuted against one of theUnited States by Citizens of another State, or by Citizens or Subject of anyForeign State”. In the case Hans v. Louisiana (1890) the Supreme Court acceptedall-inclusive conceiving of the state sovereignty in the case where theamendment was not applied under its own conditions, and decided that thefederal competence did not exist if a citizen sued his own state. 54 So it wascreated a possibility that in some areas the Congress could pass the acts directedto the citizens of the states, but the full enforcement of these acts could berealized only at the level of the state courts. 55 So the citizens started looking atthe word ’federalism’ with the fear, they saw it as a notion used to deprive thecitizens of their constitutional rights when they are the victims of themaltreatment of their own governments. The very Supreme Court realized thisproblem and tried to limit the range of the application of the sovereignimmunity principle by different fictions. The most well-known one is the Exparte Young fiction (1908) that allows the citizens to sue the state that violatesthe federal Constitution or federal laws, pretending that the governmentemployee has been sued. 56 In the cases like this one of Young, the plaintiff hasto prove that the accused is the government employee, who carries out the stateauthorities. This solution has no practical sense, since if the federal court passesthe judgment on the government employee because he disregards the federalacts, the very state will be obliged to co-ordinate its behavior with the federalact. 57 So the Supreme Court tried to coordinate the constitutional immunity ofthe states with the supremacy of the federal law at the same time.Recently the Supreme Court used the Eleventh Amendment in even morecontroversial way in Alden v. Maine (1999), in the judges proportion 5:4, whereit determined that the states could not be accused in their own courts forviolating the federal law. In this way the Supreme Court allowed the states awide authority to avoid carrying out the federal acts and openly acknowledgedthat it ran away from the literal text of the Eleventh Amendment.In the Alden case the question concerned the ability of the private partiesto sue the state governments before the state courts for violating the provisions54Hans v. Louisiana, 134 U.S. 1 (1890)55Amar, op. cit., p. 147856Ex parte Young 209 U.S. 123 (1908)57Amar, op. cit., p. 1479

270Ivana Tucakon the wages and working time of the Fair Labor Standards Act. The Aldenmajority founded its decision on the Constitution structure, the history and theauthoritative interpretation of the court cases connected to the Tenth and theEleventh Amendment, which pointed out that the state immunity to theaccusations was a fundamental aspect of the sovereignty, which the states enjoyedbefore the ratification of the Constitution, and they have kept everything up totoday with the exceptions, which have been foreseen by the Constitution orcertain constitutional Amendments. The states have not been degraded only tothe provinces or the political corporations, but they maintained their dignity,although not the full authority of the sovereignty. The Supreme Court grantedthe constitutional status to ”the sovereign immunity”, that can not be an objectof the regulation by the Congress through the Commerce Clause. The EnglishCommon Law idea concerning the ban of the accusation against the sovereignin their own courts has been implicitly contained in the text of theConstitution. 58 However the Supreme Court pointed out that the right of thestates to refer to the sovereign immunity did not mean that the states coulddisregard the Constitution or the valid federal act. The states and theiremployees must respect the obligations that were enacted by the Constitutionand the federal law that match the Constitution design.ConclusionWe can conclude that the concept of the sovereignty was in the focus ofthe political theory as before as after the Constitution was enacted. In thehistory the number discussions on the question who in the federation belongedthe sovereignty to were led, but on the true meaning of the very notion as well.The role of the Supreme Court as the arbiter in the federal relations appeared asthe key one because of the fact that the Constitution has not contained the clearborders among the authorities of the federal government and the member states.The last time the decisive fight on the question of the state sovereignty and theauthorities of the federal government was led in 30s of the last century. Sincethen the Supreme Court has given regularly the advantage to the federal58Alden v. Maine 527 US 706 (1999) See also Merico – Stephens, Ana-Maria, Of Maine’sSovereignty, Alden’s Federalism and by Myth of Absolute Principles: The Newest OldestQuestion of Constitutional Law, 33 U.S. Davis L. Rev. 325 (1999-2000), p. 327

A Theory of Sovereignty Under the Federal Constitution 271government. However during last 10 years the new conservative majority of thejudges used the concept of the state sovereignty in the series of the cases thatappeared in front of them in order to limit the authorities of the federalgovernment. However in contrast to the last crisis when the judges reallysupported the concept, which assumed 49 different sovereigns, it has beensupposed by the new decisions of the Supreme Court that the states have beensovereign, but that sovereignty that the state possesses is not the absolute one. 59The state like this one is not problematic only theoretically, but practically veryhard attainable as well. The fact that there is no coherent theory, which attainedthe balance between the supremacy of the federal law and the sovereign rightsof the states, has endangered the very principle of the rule-of law, which requestsa foreseeable and consistent ruling. 6059Gey, op. cit., p. 160360Merico-Stephens, op. cit., p. 332

3 Gordana Mitrović, LL.MNovi Sad, SerbiaROBERT NOZICK:ANARCHY, STATE AND UTOPIAJesenski & Turk Publishing House, Zagreb, 2003Here, before us, is the Croatian edition of the book by a Harvard professorof philosophy, Robert Nozick (1938–2002), called Anarchy, State and Utopia.This was first Nozick’s book. It was published in 1974, and for it the authorreceived the prestigious National Book Award. Anarchy, State and Utopia hasbeen appraised as a key work in contemporary political philosophy. In spite ofthe fact that it has encountered a great deal of criticism, and that Nozick himselflater on revised a great many of the views expounded in it, critics, no matterwhether they agree or disagree with the ideas presented in it, have been unanimousin their assessment that this work is distinguished by extremely picturesque andaccessible style. The book has been translated into eleven languages, and TheTimes Literary Supplement proclaimed it one of the hundred most influentalbooks in the period after World War II. Anarchy, State and Utopia is actuallyNozick’s critique of the book Theory of Justice, published in 1971 by his Harvardcolleague, John Rawls, also nominated for the National Book Award. Nozickcriticizes Rawls’ social-democratic liberalism and bureaucratic state of welfarethat has a role of redistributing the goods in such a way that even those worseoffor less fortunate (the poor or the disadvantaged) could not complain of beingtreated unfairly. He advocates a minimal state and the primacy of individualrights. Functions of this minimal state would be reduced to protecting its citizensfrom violence, theft and breach of contract, and according to him, any statewith authority larger than this would violate the natural rights of its citizens.Holding this view, Nozick adopts the libertarian concept of the state, whosefunctions would be brought down to national defence, police protection andadministration of justice, and all the other areas of public life (education,healthcare, social security and the like) should be the responsibility of charities,religious organizations and other private institutions conduct trade at the free

Robert Nozick: Anarchy, State and Utopia 273market. Therfore, the book Anarchy, State and Utopia is today still considered’a libertarian Bible,’ and Nozick himself is often called ’the intellectual hero oflibertarians.’ This political philosophy highlights free mind and free market asthe key factors of a prosperous society.In the first part of the book entitled ’State of Nature Theory or How toBack into a State without Really Trying, ’ the author poses the fundamentalquestion of political philosophy, whether there should be any state at all. Byrejecting the anarchistic theory as the one that undermines political philosophy,he resorts to the theory of the state of nature, which, according to him, representsthe best state of anarchy, and the examination of features and imperfections ofwhich can provide us with an answer to the question whether the state is betterthan anarchy, i.e. whether the state is even better than the most acceptable formof anarchy, the state of nature itself. In doing so, Nozick analyses the state ofnature as defined by John Locke. In that state people live in state of perfect freedomand dispose of their properties and persons within the limitations of naturallaws that bid that no one can harm the life, health, freedom and property ofanother. In the state of nature, when his rights are endangered, a person defendshimself, punishes violators and gets compensation from them, and in thatdefense may be joined by others. That is how mutual protection associations areformed, and among them one has to be dominant. To the question whether thatdominant protective association is actually a state, Nozick answers affirmatively,under condition that, on a certain territory, it has a monopoly on physical force,and is capable of protecting everone who lives on that territory. Nozick claimsthat this is how from the state of nature ’a nightwatchman state of clasic liberaltheory’ originates, and its function is then restricted to the protection of itscitizens against violence, theft and fraud, as well as ensuring the enforcement ofcontracts. He calls this kind of state a minimal state, and it stands oppositeprivate protective associations. At least one other social system can be positionedbetween them, the one that Nozick refers to as ’ultraminimal state.’ This statewould have a monopoly on every use of force except for that in case of immediateself-defense. It would exclude the possibility of private retaliation, but, on theother hand, would provide protection only to those who ’buy’ it, or, in otherwords, acquire ’execution policy.’ Nozick continues by posing the question ofmoral acceptability of activities people undertake in order to establish andpreserve the state, and claims that moral philosophy represents a framework forpolitical philosohy, and that moral prohibitions are the source of legitimacy forthe state`s coercive power.

274Gordana MitrovićConsidering a minimal state the most extensive state that can be justified,in the second part of the book entitled ’Beyond the Minimal State?’, Nozickquestions the reasons other authors had used in trying to justify a more extensivestate, among which particularly: achieving distributive justice (this part is basedmainly on the criticism of Rawls` theory of justice), equality, self-esteem, equalityof opportunity, workers` control, voluntary exchange, philanthropy, biggerpolitical equality through decrease in economic inequality, and gain the right tovote on matters of importance to an individual. He develops his theory of justice,i.e. the entitlement theory, as he calls it, according to which the principle ofjustice is exhausted in the process of original acquisition of property, its transferby legitimate means, and finally, the rectification of possible violations ofacquisition and transfer. The minimal state is big enough to make this kind ofjustice possible. However, Nozick ends the second part of his book with ahypothetical description of a more extensive state, with a goal of, as he says, ofmaking that kind of state less attractive. This ’more-than-minimal state’ wouldexist if a person should start selling a part of rights he has on himself. In thatway he would become a holding company, selling owner`s share of himself. Anindividual would then be seen as the owner of the rights for deciding on theoccupation he is to choose, kind of clothes he is to wear, person he is to marry,etc. Some of these rights a person would, without violating rights of others,alienate, some he would keep for himself, and people would thus be transformedinto holding companies, and become proprietors of each other. This ’ownershipof people, by people and for people’, a so-called demoktesis, would be the highestform of social life. In that way, using a process as a sequence of individualactions and without violating anyone`s rights, Nozick thinks that we can evolvefrom a minimal into a democratic state.At the end, in the third part of his book, entitled ’Utopia’, in order to avoidmaking minimal state too pale and uninteresting to the reader, ’incapable’ ofinspiring people to fight and sacrifice for it, Nozick turns to the utopian theory,and concludes that a minimal state is the only state morally desirable, legitimateand tolerable, that does not violate one`s personal rights, ’the one that in the bestway possible implements utopian longings of numerous dreamers and visionaries’.Contrary to extensive states people live in in the modern world, it is an inspiringvision and a framework for utopia. for it treats people as inviolable individualswith their own rights and dignity, and enables them to live their lives, alone orwith others of their choice, and to realize their potentials as much as possible incooperation with other such individuals.

Robert Nozick: Anarchy, State and Utopia 275Having in mind a profound and comprehensive approach that distinguishesNozick`s concept of minimal state presented in the book Anarchy, State, andUtopia, it is no wonder that, in spite of the numerous criticisms it received, thisbook, as already stated at the beginning of this review, was soon after its releaseproclaimed ’a libertarian Bible’ and a breath of fresh air in modern politicaltheory. That makes it modern and attractive enough for the reading public inthis part of the world, and its translation into Croatian language, though executedalmost three decades after its publishing in the USA, is a great contribution tothe study of contemporary American political and legal philosophy in ourcountry. Furthermore, the publication of this book should serve as an incentivefor the publishers to translate and publish other works by Robert Nozick inSerbian, that would, in return, prompt domestic authors to study the work ofthis American author, which is not so comprehensive, as is various and interestingin its subjects and connection to various disciplines.

CLOSING WORDGordana VukadinovićFirst of all, I would like to thank all the participants for their efforts theyinvested in the preparation of their presentations, especially to those who werepresent here and who developed this cooperation.I would especially like to thank Mrs. Mira Gur-Arie. We are really privilegedand honored to have her here. She came all the way from the United States andhelped us exchange opinions and deepen our knowledge on American jurisprudenceof the 20 th century. This topic is of great interest at the moment, and, as youcould see, it is inspiring many authors, especially the young ones whom we areextremely proud of.Of course, this event would not have been possible without the patronageof the Embassy of the United States of America in Belgrade and we thank themfor that. We have to thank our general sponsor, the SIM Company from SremskiKarlovci, for recognizing the importance of this meeting and helping itsrealization. We are very grateful for their help, since these efforts we have madeand presented will be published in editions in English and in Serbian.We owe special thanks to the Executive Council of the AutonomousProvince of Vojvodina, for their unconditional understanding for the work of anewly founded association. The association working in the region where, with ashort pause of a few years (when there was the Yugoslav Association for Theory,Philosophy and Legal Sociology), for more than six decades there has not been anassociation for those involved in the field of theory, ethics and legal philosophy.Our goal is to expand this cooperation and to grow into a regional organizationin the future.I would like to express gratitude to our hosts, the Assembly of theMunicipality of Sremski Karlovci as well as the Karlovci Grammar School thatalso made this unique scientific meeting, the first in this region, possible.Thank you all once again.I declare this meeting finished, or perhaps, temporarily closed until wemeet again, possibly here in Sremski Karlovci.

Robert Nozick: Anarchy, State and Utopia277Participants of the conference American Jurisprudence of the 20 th Centuryheld in Sremski Karlovci, Serbia, from March 31 to April 2, 2006.

SummaryOpening SpeechGordana Vukadinović . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3IOn American Jurisprudence1 Mira Gur-ArieAmerican Jurisprudence in the Third Millennium . . . . . . . . . . . . . . . . . . . . . . . . . . 92 Gordana VukadinovićConteporary American Jurisprudence and Serbian Theory of Lawat Beginning of Twenty-first Century . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213 Agneš Kartag-OdriNew Perspectives in American Legal Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34IIWhat is Law?1 Duško VrbanEconomic Analysis of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 592 Milorad ŽižićBiorational and Social Determination of the Processof Material Origin of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 663 Miroslav A. ŽivkovićContribution of American Legal Theory in Defining the Concept of Law . . . . . . 734 Biljana KneževićRonald Dworkin’s Natural Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 825 Sanja ĐurđićLiberal Theory of Justice of John Rawls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 966 Branko TucakovJerome Frank’s Legal Realism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047 Miloš MarjanovićRoscoe Pound’s Sociological Jurisprudence from the EuropeanContinental Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

IIIThe Morality of Law1 Dragan M. MitrovićLon Fuller’s Legal Philosophy on the Morality of Law in Viewof His Opponents and Advocates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1332 Marko BožićJohn Finnis, the Heir of the Aquinian Natural Law Tradition . . . . . . . . . . . . . . 1413 Marko TrajkovićRichard A. Posner: The Problematics of Moral and Legal Theory . . . . . . . . . . . 1534 Danijela GrujićFor the Love of One’s Country and the World . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156IVArgumentation and Interpretation of Law1 Marijan PavčnikConstitutional Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1652 Slobodan BeljanskiPound’s Concept of Law Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1843 Petar TeofilovićThe Contribution of the US Jurisprudence to Freedom of Expressionin the USA Through the Development of Defamation Law . . . . . . . . . . . . . . . . . 1974 Dragutin AvramovićAlan Watson: Legal Transplants – An Approach to Comparative Law . . . . . . . 221VThe Legal and Political System of the USA1 Dragan BataveljićConteporary Constitutional System in the United States of America . . . . . . . . . 2312 Ivana TucakA Theory of Sovereignty Under the Federal Constitution . . . . . . . . . . . . . . . . . . 2483 Gordana MitrovićRobert Nozick: Anarchy, States and Utopia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265Closing Word . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269Gordana Vukadinović