American Jurisprudence of the 20th Century
American Jurisprudence of the 20th Century
American Jurisprudence of the 20th Century
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Novi SadAssociation forTheoryEthics andPhilosophy <strong>of</strong> Law<strong>American</strong> <strong>Jurisprudence</strong><strong>of</strong> <strong>the</strong> 20 th <strong>Century</strong>Pr<strong>of</strong>. Agneš Kartag–Odri, PhD, and pr<strong>of</strong>. Gordana Vukadinović, PhD,editorsNovi Sad, 2007
2Published byThe Novi Sad Association for Theory, Ethics and Philosophy <strong>of</strong> LawEdited byPr<strong>of</strong>. Agneš Kartag–Odri, PhDPr<strong>of</strong>. Gordana Vukadinović, PhDBoard <strong>of</strong> 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 <strong>of</strong> this book was aided by:The USA Embassy in BelgradeThe Executive Council <strong>of</strong> <strong>the</strong> Autonomous Province <strong>of</strong> VojvodinaThe Municipality <strong>of</strong> 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 SpeechPr<strong>of</strong>. Gordana Vukadinović, PhDIt is a great honor and pleasure, on behalf <strong>of</strong> <strong>the</strong> organizer, <strong>the</strong> Novi SadAssociation for Theory, Ethics, and Philosophy <strong>of</strong> Law, to open <strong>the</strong> meetingentitled <strong>American</strong> <strong>Jurisprudence</strong> <strong>of</strong> 20 th <strong>Century</strong>.On behalf <strong>of</strong> 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 <strong>the</strong> position <strong>of</strong> presiding person, to present you <strong>the</strong>Working presidency:Dr. Mira Gur-Arie – Director <strong>of</strong> International Judicial Relations at <strong>the</strong>Federal Judicial Center in Washington, D.C.Academic Pr<strong>of</strong>. Dr. Aleksandar FiraDr. Duško Vrban, pr<strong>of</strong>essor at <strong>the</strong> Faculty <strong>of</strong> Law, Osijek, CroatiaDr. Agneš Kartag-Odri, pr<strong>of</strong>essor at <strong>the</strong> Faculty <strong>of</strong> Law, Novi Sad, andDr. Gordana Vukadinović, president <strong>of</strong> <strong>the</strong> Novi Sad Association forTheory, Ethics, and Philosophy <strong>of</strong> Law, pr<strong>of</strong>essor at <strong>the</strong> Faculty <strong>of</strong> Law, Novi Sad.Members <strong>of</strong> <strong>the</strong> Working presidency, please take your places.It is not by accident that this ga<strong>the</strong>ring is taking place in SremskiKarlovci, a place that has been <strong>the</strong> center <strong>of</strong> Serbian spirituality throughouthistory. Moreover, Serbian modern legal and political thought, after devastation<strong>of</strong> <strong>the</strong> medieval state, was conceived right here, in Vojvodina.Besides, it is not without reason that <strong>the</strong> patron <strong>of</strong> this ga<strong>the</strong>ring is <strong>the</strong>newly founded Novi Sad Association for Theory, Ethics and Philosophy <strong>of</strong> Law.More than a decade ago, some individual researches were started in <strong>the</strong> field <strong>of</strong>
4<strong>American</strong> jurisprudence, which have been developed later on into a well-conceivedand complete research, mostly in <strong>the</strong> master studies. Let me mention some <strong>of</strong><strong>the</strong> results: two master <strong>the</strong>ses have been finished, and <strong>the</strong> third one is beingprepared. Then, a doctoral <strong>the</strong>sis is being prepared on iusnatural <strong>the</strong>ory inAmerica. Moreover, basic orientations in <strong>the</strong> development <strong>of</strong> <strong>American</strong>jurisprudence are presented in <strong>the</strong> textbook Theory <strong>of</strong> Law (for students <strong>of</strong> <strong>the</strong>first year <strong>of</strong> studies at <strong>the</strong> Faculty <strong>of</strong> Law). Then, a monograph Legal Thought in<strong>the</strong> 20 th <strong>Century</strong> 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 <strong>the</strong> USA by Agnes Kartag-Odri.I would just like to say, if I may say so, on behalf <strong>of</strong> all <strong>the</strong> participants, howdelighted we are, for having this opportunity to present our research. I hopethis project will be a step fur<strong>the</strong>r in our research on <strong>American</strong> jurisprudence.Therefore, we, who are involved in <strong>the</strong> work <strong>of</strong> The Novi Sad Association forTheory, Ethics and Philosophy <strong>of</strong> Law are making new plans that will be realizedeven more successfully with your help. One example is certainly <strong>the</strong> review <strong>of</strong><strong>the</strong> works from this meeting.We have ga<strong>the</strong>red here today in this magnificent edifice, in such a number,from five different countries to present our results, to exchange our experienceson <strong>American</strong> jurisprudence in order to continue and expand toge<strong>the</strong>r <strong>the</strong>seactivities to o<strong>the</strong>r topics, for example, legal ethics. This work will be available to<strong>the</strong> public in <strong>the</strong> books <strong>American</strong> <strong>Jurisprudence</strong> <strong>of</strong> <strong>the</strong> 20 th <strong>Century</strong> that will beprinted in English and Serbian.All this would not be possible without <strong>the</strong> patronage <strong>of</strong> <strong>the</strong> Embassy <strong>of</strong><strong>the</strong> United States <strong>of</strong> America and our general sponsor <strong>the</strong> SIM Company fromSremski Karlovci, as well as <strong>the</strong> governmental support <strong>of</strong> <strong>the</strong> Executive Council<strong>of</strong> <strong>the</strong> Autonomous Province <strong>of</strong> Vojvodina, <strong>the</strong> Sremski Karlovci GrammarSchool, where we are at <strong>the</strong> moment, and our hosts in this beautiful place – <strong>the</strong>Assembly <strong>of</strong> <strong>the</strong> Municipality <strong>of</strong> Sremski Karlovci. I would like to express gratitudeto all <strong>of</strong> <strong>the</strong>m, both personally and on behalf <strong>of</strong> <strong>the</strong> organizer, our Association.At <strong>the</strong> very beginning I would like to point out that those who have comehere are only <strong>the</strong> participants who managed to leave all <strong>the</strong>ir work aside, inorder to be with us in Sremski Karlovci.Now, I would like to ask Mr. John Johnson, <strong>the</strong> cultural attaché at <strong>the</strong>Embassy <strong>of</strong> <strong>the</strong> United States <strong>of</strong> America in Belgrade to address this meeting.
5Welcome speechMr. John Johnson, Attaché Cultural at <strong>the</strong> Embassy<strong>of</strong> <strong>the</strong> United States <strong>of</strong> America in BelgradeGood morning.It’s an honor to be here today.I will not speak about <strong>American</strong> jurisprudence, especially in <strong>the</strong> presence<strong>of</strong> 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 <strong>of</strong>International Judicial Relations at <strong>the</strong> Federal Judicial Center in Washington,D.C., to participate and, as I said before, to make <strong>the</strong> 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 <strong>the</strong> invitation and I am looking forward tohearing all <strong>the</strong> lectures this morning.Thank you.* * *I would like to thank Mr. John Johnson and <strong>the</strong> Embassy <strong>of</strong> <strong>the</strong> UnitedStates <strong>of</strong> America for helping us from <strong>the</strong> very beginning, to bring about suchan important meeting.And now I do not wish to hold your attention any more, <strong>the</strong> 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 <strong>American</strong> jurisprudence, or,more specifically, ”<strong>Jurisprudence</strong> in <strong>the</strong> United States in <strong>the</strong> Third Millennium.”Although discussions about <strong>the</strong> philosophy <strong>of</strong> law take place primarily amongpr<strong>of</strong>essors <strong>of</strong> legal <strong>the</strong>ory, debate over what can be referred to as ’appliedjurisprudence’ – <strong>the</strong> interpretive principles that judges employ to decide cases –has animated <strong>the</strong> pages <strong>of</strong> published court decisions over <strong>the</strong> last 200 years andis a topic with significant resonance in <strong>American</strong> society today.<strong>Jurisprudence</strong> speaks to <strong>the</strong> essence <strong>of</strong> what judges in <strong>the</strong> United Statesdo, <strong>the</strong> process <strong>of</strong> interpreting <strong>the</strong> Constitution and statutory text and applyinglegal principles to questions <strong>of</strong> fact. <strong>Jurisprudence</strong> also reflects beliefs about <strong>the</strong>judiciary’s role, <strong>the</strong> institutional competence and responsibility <strong>of</strong> courts within<strong>the</strong> framework <strong>of</strong> <strong>the</strong> United States Constitution. Because judges in <strong>the</strong> UnitedStates are called upon to resolve issues <strong>of</strong> such fundamental importance to society,including <strong>the</strong> scope and protections accorded individual rights, a principledlegal <strong>the</strong>ory is in many ways <strong>the</strong> intellectual foundation for <strong>the</strong> rule <strong>of</strong> law.The opening <strong>of</strong> <strong>the</strong> Third Millennium in <strong>the</strong> United States has beenmarked by increasingly public and pointed debates over <strong>the</strong> role <strong>of</strong> courts,challenges to <strong>the</strong> exercise <strong>of</strong> judicial authority, and disagreement over <strong>the</strong>appropriate content <strong>of</strong> <strong>the</strong> judiciary’s interpretive process. This heightenedscrutiny is in part <strong>the</strong> result <strong>of</strong> <strong>the</strong> importance <strong>of</strong> and disagreement about many<strong>of</strong> <strong>the</strong> issues under judicial review in recent years, including <strong>the</strong> powers <strong>of</strong> <strong>the</strong>Executive during war, <strong>the</strong> rights <strong>of</strong> minorities, and religious liberty. Debate over*Mira Gur-Arie is <strong>the</strong> Director <strong>of</strong> International Judicial Relations at <strong>the</strong> Federal JudicialCenter, in Washington, D.C. The views expressed in this paper are those <strong>of</strong> <strong>the</strong> author andshould not be attributed to <strong>the</strong> Center.
10Mira Gur-Arie<strong>the</strong> appropriate role <strong>of</strong> <strong>the</strong> courts and <strong>the</strong> interpretive rules that should govern”<strong>American</strong>” jurisprudence has been aired not only in <strong>the</strong> halls <strong>of</strong> academia, butalso in <strong>the</strong> texts <strong>of</strong> judicial decisions, <strong>the</strong> corridors <strong>of</strong> Congress, <strong>the</strong> pages <strong>of</strong>newspapers, and, with growing frequency, <strong>the</strong> internet’s blogosphere. This is aperiod <strong>of</strong> jurisprudence in flux.This paper will attempt to describe this flux, first by providing a briefhistorical overview and next by discussing current examples <strong>of</strong> this jurisprudentialdiscourse as articulated by leading academics and Justices <strong>of</strong> <strong>the</strong> U.S. SupremeCourt. The current polarity in <strong>American</strong> judicial philosophy, though perhapssomewhat more tense than in <strong>the</strong> past, reflects <strong>the</strong> central importance <strong>of</strong> legal<strong>the</strong>ory (and <strong>the</strong> judiciary) to <strong>American</strong> democracy.Historical ContextIn <strong>the</strong> United States, <strong>the</strong> essential relationship between jurisprudence andjudicial power is rooted in <strong>the</strong> efforts <strong>of</strong> <strong>the</strong> authors (<strong>the</strong> ”framers”) <strong>of</strong> <strong>the</strong>Constitution to resolve, or at least accommodate, <strong>the</strong> tension between judicialindependence and accountability. The general structure <strong>of</strong> <strong>the</strong> U.S. legal systemand <strong>the</strong> common law method is well known. The Constitution <strong>of</strong> <strong>the</strong> UnitedStates enshrines a formidable judicial role. It sets forth an institutional frameworkunder which laws are drafted by <strong>the</strong> legislature and enforced by <strong>the</strong> executive.The judiciary is empowered to interpret <strong>the</strong> law.The Constitution’s framers intentionally created a strong and independentjudicial power, having recently experienced <strong>the</strong> arbitrary and authoritarian rule<strong>of</strong> <strong>the</strong> King <strong>of</strong> England, rule that included political influence over <strong>the</strong> colonialjudiciary. They believed that a strong judiciary was essential to protect individualliberty against <strong>the</strong> authority <strong>of</strong> <strong>the</strong> government and designed a governmentalsystem that shields <strong>the</strong> judicial process from outside influences. The Constitutiongrants federal judges life tenure and prohibits any reduction in judicialcompensation.However, from <strong>the</strong> earliest days <strong>of</strong> <strong>the</strong> <strong>American</strong> colonial period through<strong>the</strong> present day, <strong>the</strong> nature and limits <strong>of</strong> judicial branch power has engendereddebate. Not long after <strong>the</strong> Constitution was ratified, <strong>the</strong> U.S. Supreme Court, inan infamous case Marbury v. Madison, interpreted <strong>the</strong> Constitution as granting<strong>the</strong> judiciary <strong>the</strong> power, and obligation, to declare null and void an act <strong>of</strong>Congress that fails to comport with <strong>the</strong> Constitution. This early exercise <strong>of</strong>
12Mira Gur-ArieThe Legal Process movement, most <strong>of</strong>ten associated with <strong>the</strong> scholar LonFuller, argues that law is governed by reason, not divine fiat, and this reason isreflected in <strong>the</strong> transparent and uniformly employed legal method <strong>of</strong> case analysis.Legal method is carried out to realize morally defensible goals. Ra<strong>the</strong>r thanimposing <strong>the</strong>ir subjective values, judges follow a reasoned and transparent interpretiveprocess, modestly, incrementally, and with institutional circumspection.The 1960’s were a period <strong>of</strong> social upheaval in <strong>the</strong> United States, upheavalmarked by a search for social justice and skepticism about <strong>the</strong> legitimacy <strong>of</strong>governmental authority. The Legal Process method was criticized as overlyformalistic and unrealistically divorced from context. Lawyers were exertingpressure on <strong>the</strong> judicial system to remedy social injustices. Supreme Courtrulings during <strong>the</strong> tenure <strong>of</strong> Chief Justice Earl Warren provided some citizenswith faith in <strong>the</strong> potential <strong>of</strong> <strong>the</strong> courts to enable political and social reformsand achieve justice – a view that represents <strong>the</strong> tenets <strong>of</strong> <strong>American</strong> liberalism.However, for o<strong>the</strong>rs, <strong>the</strong> Warren Court’s rulings on cases involving <strong>the</strong> rights <strong>of</strong>minorities and criminal defendants represented <strong>American</strong> jurisprudence at itsworst, with judges emboldened to act as Platonic guards and exceeding <strong>the</strong>irconstitutionally-mandated authority.The liberal tradition <strong>of</strong> <strong>the</strong> Warren Court found fur<strong>the</strong>r philosophicalexpression in a movement named <strong>the</strong> ”living Constitution”, a <strong>the</strong>ory <strong>of</strong>constitutional interpretation that ”draws its meaning from <strong>the</strong> evolving standards<strong>of</strong> decency that mark <strong>the</strong> progress <strong>of</strong> a maturing society”. Troop v. Dulles (1958).This jurisprudence is most <strong>of</strong>ten associated with late Supreme Court JusticeWilliam Brennan. Justice Brennan believed that <strong>the</strong> 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 <strong>the</strong> notion <strong>of</strong> 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 <strong>the</strong>ir interpretive method in terms <strong>of</strong> a”living Constitution.” Theirs is a deliberative and more circumscribed judicialmethod, resolving issues on a case-by-case basis without a clearly doctrinaljurisprudence. However, <strong>the</strong>y also have embraced a responsive jurisprudenceand reject <strong>the</strong> notion <strong>of</strong> an interpretive process limited to <strong>the</strong> vague and sparselanguage <strong>of</strong> <strong>the</strong> Constitution.
<strong>American</strong> <strong>Jurisprudence</strong> in <strong>the</strong> Third Millennium 13The ”Constitution in Exile” movement was born, in part, as a reaction <strong>of</strong><strong>the</strong> perceived excesses <strong>of</strong> <strong>the</strong> Warren Court era and <strong>the</strong> resulting ”activist”jurisprudence advocated by proponents <strong>of</strong> a living Constitution. Scholars <strong>of</strong> thisschool believe <strong>the</strong> Constitution should be strictly construed and <strong>the</strong> interpretiveprocess should be confined to <strong>the</strong> original meaning <strong>of</strong> <strong>the</strong> 18 th century text, withits language and dictates interpreted as <strong>the</strong>y would have been intended by <strong>the</strong>Constitution’s authors. Proponents <strong>of</strong> Originalism are skeptical <strong>of</strong> constitutionalrights that do not appear explicitly in <strong>the</strong> document’s text. They oppose ”liberal”interpretations <strong>of</strong> <strong>the</strong> Constitution that mandate a broad reading <strong>of</strong> <strong>the</strong> equalprotection clause and <strong>the</strong>y advocate a limited judicial role that foreclosesopportunity to ’interpret’ vague Constitutional provisions.This <strong>American</strong> tradition <strong>of</strong> legal scholarship – <strong>the</strong>ory, critique, counter<strong>the</strong>ory– continued into <strong>the</strong> late 20 th century, with <strong>the</strong> Critical Legal Studiesmovement, feminist <strong>the</strong>ory, and critical race <strong>the</strong>ory questioning <strong>the</strong> process andlegitimacy <strong>of</strong> judicial reasoning. Rooted in post-modern interpretive <strong>the</strong>ory, <strong>the</strong>seschools <strong>of</strong> jurisprudence contend that legal principles reflect power relations insociety. Law is but a reflection <strong>of</strong> politics and <strong>the</strong> interpretive process employedby judges is incapable <strong>of</strong> neutral, non-normative exercise. At its extreme, postmodernlegal <strong>the</strong>ory challenges <strong>the</strong> determinacy <strong>of</strong> legal meaning and suggeststhat legal reasoning is contingent on <strong>the</strong> beliefs <strong>of</strong> <strong>the</strong> decision maker.21 st <strong>Century</strong> <strong>American</strong> <strong>Jurisprudence</strong>: A State <strong>of</strong> FluxI started my comments by remarking that <strong>American</strong> <strong>Jurisprudence</strong> in <strong>the</strong>21 st century is in flux. This brief historical detour suggests that ”flux” is notlimited to contemporary times but is perhaps endemic to legal <strong>the</strong>ory in <strong>the</strong>United States. Never<strong>the</strong>less, in <strong>the</strong>se early years <strong>of</strong> <strong>the</strong> third millennium, <strong>the</strong>jurisprudential ”flux” reveals unusually heightened tensions not only over <strong>the</strong>content <strong>of</strong> judicial interpretation but also over <strong>the</strong> legitimacy and role <strong>of</strong> <strong>the</strong>judicial process.The common law method requires judges to look to precedent, <strong>the</strong>decisions <strong>of</strong> o<strong>the</strong>r U.S. courts, for applicable legal principles. Over <strong>the</strong> last halfcentury,legal codes/statutes have come to play a central role in <strong>the</strong> judicialdecision making process, governing questions as broad and diverse asenvironmental regulations and rights to equal treatment. One <strong>of</strong> <strong>the</strong> most
14Mira Gur-Ariechallenging, and vexing, tasks for a U.S. judge is to interpret <strong>the</strong> <strong>of</strong>ten-vaguedictates <strong>of</strong> a legislative enactment.<strong>American</strong> judges also consult works <strong>of</strong> legal scholarship – law reviewarticles, books, and legal treatises. Although legal education in <strong>the</strong> United Statesstill focuses on <strong>the</strong> case method, with students required to read judicialopinions, analyze facts, and glean principles <strong>of</strong> law from judicial reasoning,many courses taught in law schools include legal treatises as required readingfor law students. This is especially true in <strong>the</strong> most difficult and compelling <strong>of</strong>first year law school topics – constitutional law.Lawrence Tribe is one <strong>of</strong> <strong>the</strong> best-known constitutional law scholars in<strong>the</strong> United States. He is a law pr<strong>of</strong>essor at Harvard Law School and has arguedover 30 cases before <strong>the</strong> Supreme Court, most famously, <strong>the</strong> losing side <strong>of</strong> <strong>the</strong>2000 case, Bush v. Gore. Pr<strong>of</strong>essor Tribe’s seminal text, <strong>American</strong> ConstitutionalLaw, a leading modern syn<strong>the</strong>sis <strong>of</strong> <strong>American</strong> constitutional doctrine, was firstpublished in 1978, and has been required reading for scores <strong>of</strong> law students.Pr<strong>of</strong>essor Tribe published <strong>the</strong> second edition <strong>of</strong> his treatise in 1988 andpublished Volume One <strong>of</strong> <strong>the</strong> third edition in 1999.Pr<strong>of</strong>essor Tribe has decided not to complete <strong>the</strong> Volume Two <strong>of</strong> thisthird edition, <strong>the</strong> section <strong>of</strong> his treatise that addresses individual rights. In anApril 2005, letter to Supreme Court Justice Stephen Breyer, which wassubsequently made public, Pr<strong>of</strong>essor Tribe explained his decision. Tribe wrotethat now is not a stable time in <strong>American</strong> jurisprudence. The Court’s recentdecisions have been marked by rapidly changing and competing <strong>the</strong>ories <strong>of</strong>constitutional interpretation, from which no organizing principle is emerging.Tribe wrote, ”conflict over basic constitutional premises is today at a feverpitch,” and <strong>the</strong> ”working materials <strong>of</strong> <strong>American</strong> constitutional law may be in<strong>the</strong> process <strong>of</strong> changing.”Tribe concluded that <strong>American</strong> jurisprudence is in a period <strong>of</strong> flux. Insupport <strong>of</strong> his position, Tribe cited <strong>the</strong> debate among Justices concerning <strong>the</strong>use <strong>of</strong> international and foreign law in court decisions, <strong>the</strong>ir colloquy inmajority and dissenting opinions over <strong>the</strong> meaning <strong>of</strong> <strong>the</strong> establishment clause,and o<strong>the</strong>r contentious issues <strong>of</strong> constitutional interpretation.Tribe’s decision not to revise his treatise illuminates <strong>the</strong> great difficultythat is <strong>American</strong> jurisprudence in <strong>the</strong> 21 st century: many <strong>of</strong> <strong>the</strong> issues nowbrought before <strong>the</strong> Supreme Court do not have objectively right or wronganswers; and many <strong>of</strong> <strong>the</strong> more difficult cases are decided by a margin <strong>of</strong> 5:4,sometimes with only one justice making <strong>the</strong> difference not only in <strong>the</strong> outcome
<strong>American</strong> <strong>Jurisprudence</strong> in <strong>the</strong> Third Millennium 15in a particular case, but in <strong>the</strong> jurisprudential approach to a significant area <strong>of</strong>constitutional law. Cultivating a majority for a particular judicial decision <strong>of</strong>teninvolves a process <strong>of</strong> compromise: how to draft a decision that will persuade acritical swing vote to join <strong>the</strong> majority. While this makes successful judicialpolitics, <strong>the</strong> art <strong>of</strong> judicial compromise can lead to narrow holdings based onopaque reasoning. Many <strong>of</strong> <strong>the</strong> Court’s recent majority opinions have beenexamples <strong>of</strong> judicial minimalism, decisions with limited resonance beyond <strong>the</strong>dispute at hand. However, in <strong>the</strong> pages <strong>of</strong> concurring and dissenting opinions,<strong>the</strong>re has been a resurgence <strong>of</strong> <strong>the</strong> debate over jurisprudence, a debate thatreveals very different understandings about <strong>the</strong> role and responsibilities <strong>of</strong> <strong>the</strong>judicial process.Textualism vs. Active LibertyThe dilemma <strong>of</strong> doctrine that Tribe references is epitomized in <strong>the</strong>competing legal philosophies <strong>of</strong> Supreme Court Justices Antonin Scalia andStephen Breyer. Justice Scalia is perhaps <strong>the</strong> best-known exponent <strong>of</strong> <strong>the</strong>jurisprudential <strong>the</strong>ory <strong>of</strong> Textualism. This doctrine holds that when decidingconstitutional questions, judges must look to ”original intent” as evidenced by<strong>the</strong> language <strong>of</strong> <strong>the</strong> Constitution. Contemporary constitutional questions shouldbe resolved with reference to how <strong>the</strong> Constitution’s text would have beenunderstood by a reasonable person in 1787. This <strong>the</strong>ory is a response to <strong>the</strong>anti-majoritarian dilemma: nine unelected <strong>of</strong>ficials rendering decisions thataffect <strong>the</strong> social order should not be free to impose <strong>the</strong>ir personal will. Judgesare constrained by <strong>the</strong> language in <strong>the</strong> document that empowers <strong>the</strong>m: <strong>the</strong> U.S.Constitution. Justice Scalia, speaking at a conference just a few months ago,spoke out against judicial activism and a more elastic <strong>the</strong>ory <strong>of</strong> 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 o<strong>the</strong>r things.”Proponents <strong>of</strong> Textualism <strong>of</strong>ten criticize ”activist judges” who ”legislatefrom <strong>the</strong> bench”, usurping <strong>the</strong> authority <strong>of</strong> elected <strong>of</strong>ficials, and reading into <strong>the</strong>Constitution’s text rights and protections not evident from <strong>the</strong> document’s plainlanguage. Textualism suggests that judicial competence in <strong>the</strong> sphere <strong>of</strong> constitutionallaw should be limited to legal issues capable <strong>of</strong> resolution based upon <strong>the</strong>Constitution’s plain language. Legal questions that involve questions <strong>of</strong> social
16Mira Gur-Ariepolicy or <strong>the</strong> weighing <strong>of</strong> competing norms are <strong>the</strong> exclusive province <strong>of</strong> <strong>the</strong>political branch: Congress, <strong>the</strong> democratically elected representatives <strong>of</strong> <strong>the</strong> people.Justice Scalia’s book, A Matter <strong>of</strong> Interpretation, published in 1997, includes<strong>the</strong> contributions <strong>of</strong> his critics, among <strong>the</strong>m Pr<strong>of</strong>essor Tribe, who takes strongissue with Scalia’s jurisprudence. Tribe quotes Ronald Dworkin, a prominent<strong>American</strong> legal <strong>the</strong>orist, who says, ”We are all originialists,” meaning that <strong>the</strong>text <strong>of</strong> <strong>the</strong> Constitution should indeed be <strong>the</strong> starting point <strong>of</strong> <strong>American</strong>jurisprudence. Dworkin, however, believes that judges should look not to what<strong>the</strong> authors <strong>of</strong> <strong>the</strong> Constitution intended to do, but ra<strong>the</strong>r what <strong>the</strong>y intended tosay. It is <strong>the</strong> values that underlie <strong>the</strong> text that should govern <strong>the</strong> meaningaccorded constitutional provisions.Tribe, in contrast, believes that what <strong>the</strong> authors <strong>of</strong> <strong>the</strong> Constitutionintended is not dispositive. His is a more fluid jurisprudence, one informed by<strong>the</strong> underlying goals <strong>of</strong> <strong>the</strong> Constitution – a just and responsive system <strong>of</strong>government. Tribe writes: ”To prevent that interpretive task from degeneratinginto <strong>the</strong> imposition <strong>of</strong> one’s personal preferences or values under <strong>the</strong> guise <strong>of</strong>constitutional exegesis, one must concede how difficult <strong>the</strong> task is.” Judgesshould be guided by ”<strong>the</strong> canons <strong>of</strong> candor and self-conscious humility.” Tribeis skeptical that any definitive set <strong>of</strong> ’rules’ exists. The judicial process is insteaddetermined by ”insights and perspectives” constrained by judicial modesty.O<strong>the</strong>r critics <strong>of</strong> Textualism, including Cass Sunstein, an eminent lawpr<strong>of</strong>essor from <strong>the</strong> University <strong>of</strong> Chicago, argue that this <strong>the</strong>ory falls prey to <strong>the</strong>very evil it condemns: <strong>the</strong> subjectivity <strong>of</strong> interpretation. Perhaps attempting todiscern <strong>the</strong> beliefs <strong>of</strong> <strong>the</strong> Constitution’s authors from its text can provide someevidence <strong>of</strong> ”original meaning,” but it cannot conclusively establish that meaning.There is not necessarily agreement over what original understanding embraces,nor is <strong>the</strong>re agreement over which historical sources should be consulted.Pr<strong>of</strong>essor Sunstein argues that Textualism correctly advises to look to <strong>the</strong> text <strong>of</strong><strong>the</strong> 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 <strong>of</strong> embracing contemporary problems and realities.Pr<strong>of</strong>essor Sunstein points out that much <strong>of</strong> <strong>the</strong> framer’s ”original thought” ispatently unacceptable today, including <strong>the</strong>ir views on race and gender.In 2005, Justice Stephen Breyer published Active Liberty, a discourse oninterpretive method that directly addresses <strong>the</strong> jurisprudence <strong>of</strong> Breyer’scolleague, Justice Scalia. Breyer contends that it is unlikely that <strong>the</strong> authors <strong>of</strong><strong>the</strong> Constitution had a fixed view. He writes: ”Whey would <strong>the</strong> Framers, who
<strong>American</strong> <strong>Jurisprudence</strong> in <strong>the</strong> Third Millennium 17disagreed on <strong>the</strong> necessity <strong>of</strong> including a Bill <strong>of</strong> Rights, disagreed on <strong>the</strong> contents<strong>of</strong> that Bill <strong>of</strong> Rights, have none<strong>the</strong>less agreed about what school <strong>of</strong> interpretivethought should be used to interpret <strong>the</strong> Constitution?” Textualism’s interpretivemethod leaves plenty <strong>of</strong> room for subjectivity and fails to produce clear rules <strong>of</strong>interpretation. Breyer notes that cases decided pursuant to this methodology canresult in bad consequences – as Pr<strong>of</strong>essor Sunstein also suggested. Textualism,in Breyer’s view, is not an acceptable jurisprudence.Breyer does not <strong>of</strong>fer an interpretive <strong>the</strong>ory, per se, in Active Liberty. To<strong>the</strong> contrary, he explains that no single <strong>the</strong>ory will capture <strong>the</strong> true meaning <strong>of</strong> <strong>the</strong>Constitution. Ra<strong>the</strong>r than search for <strong>the</strong>ory, judges should look to <strong>the</strong> principlesthat animate <strong>the</strong> Constitution. The Constitution should be read in light <strong>of</strong> itsoverarching goal: creating and preserving a participatory democratic society.Judges are obliged to employ principles that will most effectively realize <strong>the</strong>fundamental values underlying <strong>the</strong> U.S. Constitution: democratic self-government.They should ”pay attention to consequences and seek to render decisions thatmake government work better.” Because <strong>the</strong> process <strong>of</strong> 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 <strong>the</strong> discussion above illustrates, is aliveand well in <strong>the</strong> United States. In fact, on March 22, 2006, just last week, thisdebate surfaced in a U.S. Supreme Court case. The facts <strong>of</strong> Georgia v. Randolfare straightforward: Mr. Randolf’s estranged wife gave <strong>the</strong> police permission tosearch <strong>the</strong>ir home for evidence <strong>of</strong> drug use. Mr. Randolf, who was present at <strong>the</strong>time <strong>of</strong> <strong>the</strong> search, unequivocally refused consent. Cocaine was found. The trialcourt denied Mr. Randolf’s motion to suppress <strong>the</strong> narcotics as <strong>the</strong> fruits <strong>of</strong> anunlawful search in violation <strong>of</strong> <strong>the</strong> 4 th Amendment. The Georgia Court <strong>of</strong>Appeals reversed <strong>the</strong> trial court and <strong>the</strong> Georgia Supreme Court affirmed thisreversal, holding that <strong>the</strong> search was invalid because <strong>the</strong> homeowner waspresent and refused.In a decision written by Justice Souter, <strong>the</strong> majority <strong>of</strong> <strong>the</strong> Supreme Courtaffirmed <strong>the</strong> Georgia’s Supreme Court’s ruling, finding that a consistent <strong>the</strong>me<strong>of</strong> <strong>the</strong> Court’s 4 th Amendment jurisprudence is reasonableness – in this case, <strong>the</strong>”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 <strong>of</strong>ten happens, <strong>the</strong> jurisprudential debate took place in <strong>the</strong> concurringand dissenting opinions. Justice Breyer wrote a concurrence in which heelaborated on <strong>the</strong> interpretive method set forth in Active Liberty. Breyer notedthat <strong>the</strong> 4 th Amendment does not insist on bright line rules. ”Ra<strong>the</strong>r, it recognizesthat no single set <strong>of</strong> legal rules can capture <strong>the</strong> ever changing complexity <strong>of</strong>human life.”Justice Stevens also wrote a concurrence. In a direct critique <strong>of</strong> Scalia’stextualist methodology, Stevens noted that if <strong>the</strong> Court’s interpretive processwere confined to divining <strong>the</strong> mindset <strong>of</strong> 18 th century jurists, <strong>the</strong> consent <strong>of</strong> awife would not even be a valid consideration, as women’s rights during this erawere seldom considered. According to Stevens, this illustrates <strong>the</strong> limits <strong>of</strong>Textualism and <strong>the</strong> importance <strong>of</strong> a jurisprudence that acknowledges changes in<strong>American</strong> society. Scalia’s dissent took issue with Steven’s concurring opinion,arguing that Justice Steven’s critique confuses ”<strong>the</strong> original import <strong>of</strong> <strong>the</strong> 4 thAmendment with <strong>the</strong> background sources <strong>of</strong> law to which <strong>the</strong> Amendment, inits original meaning, referred.” While <strong>the</strong> import <strong>of</strong> this exchange is somewhatunclear, its very existence illustrates <strong>the</strong> vigor <strong>of</strong> <strong>the</strong> contemporary <strong>American</strong>debate over jurisprudence, especially as it influences <strong>the</strong> interpretation <strong>of</strong> <strong>the</strong>Constitution.As referenced earlier in my comments, debates over jurisprudence havespilled into <strong>the</strong> political arena, in some cases even penetrating popular culture.One prominent example is <strong>the</strong> propriety <strong>of</strong> U.S. courts citing <strong>the</strong> judicialdecisions <strong>of</strong> foreign and international tribunals. In recent years, some Justices<strong>of</strong> <strong>the</strong> Supreme Court have cited foreign cases, not as binding precedent butra<strong>the</strong>r as examples <strong>of</strong> how o<strong>the</strong>r 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 <strong>the</strong>y 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 <strong>the</strong> decision <strong>of</strong> a foreign court can be binding precedent for a U.S. Court.However, <strong>the</strong> opposition has been loud and definitive, perhaps because Courtdecisions that have referenced rulings <strong>of</strong> foreign tribunals have involved parti-
<strong>American</strong> <strong>Jurisprudence</strong> in <strong>the</strong> Third Millennium 19cularly contentious legal issues, including <strong>the</strong> execution <strong>of</strong> <strong>the</strong> mentally retardedand juveniles, affirmative action, and <strong>the</strong> privacy rights <strong>of</strong> homosexuals.The critique <strong>of</strong> 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 judge<strong>of</strong> a United States federal court not a court in Europe, South Africa or elsewhere.A second criticism is that citation <strong>of</strong> foreign judicial decisions is a practice thatcan be engaged in selectively to justify a judge’s personal preferences. Judge RichardPosner, a judge on <strong>the</strong> Seventh Circuit Court <strong>of</strong> Appeals, published an article in2004 in <strong>the</strong> journal, Legal Affairs: ”No Thanks, We Already Have Our OwnLaws.” Posner writes that <strong>the</strong> judicial systems <strong>of</strong> o<strong>the</strong>r countries have <strong>the</strong>ir ownunique histories, institutions, and methods. U.S. judges are unfamiliar with thiscontext and hence <strong>the</strong>ir citation to foreign opinions is both selective (<strong>the</strong>y cite<strong>the</strong> foreign decisions <strong>the</strong>y like) and irresponsible.Criticism has filled not only <strong>the</strong> pages <strong>of</strong> law review articles and legaljournals, but also <strong>the</strong> Congressional Record. In 2004 a bill was introduced inCongress – The Constitution Restoration Act – that sought to prohibit <strong>the</strong>Supreme Court from relying on foreign law in interpreting <strong>the</strong> Constitution.This issue has become a rallying point for critics <strong>of</strong> <strong>the</strong> judiciary, those whobelieve <strong>the</strong> spirit and activities <strong>of</strong> <strong>the</strong> Warren Court live on, with activist judgesplacing <strong>American</strong> democracy in jeopardy. During a speech last year in SouthAfrica, Justice Ruth Bader Ginsburg revealed that she and Justice O’Connorwere <strong>the</strong> subjects <strong>of</strong> Internet death threats, threats that cited <strong>the</strong> Justices’ referenceto <strong>the</strong> decisions <strong>of</strong> foreign courts.The debate over <strong>the</strong> relevance <strong>of</strong> foreign and international law in manyways goes to <strong>the</strong> heart <strong>of</strong> <strong>the</strong> debate over jurisprudence: constitutionalinterpretation. Are judges bound by <strong>the</strong> four corners <strong>of</strong> <strong>the</strong> Constitution and<strong>the</strong> ”original intent” <strong>of</strong> <strong>the</strong> Constitution’s authors, or is <strong>the</strong> 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 <strong>of</strong> different ethnicity, race, religion, and values. It is no wonder that<strong>the</strong>re is not only no single <strong>American</strong> <strong>Jurisprudence</strong>, but that as divisions insociety become more prominent, <strong>the</strong> tenor <strong>of</strong> <strong>the</strong> jurisprudential debate hasintensified. Some <strong>of</strong> <strong>the</strong> disagreement over what courts do – should do or shouldnot be doing – has, as in <strong>the</strong> case <strong>of</strong> <strong>the</strong> threats to Justices Ginsburg andO’Connor, resulted in anti-judge sentiment. In <strong>the</strong> state <strong>of</strong> South Dakota, aballot measure that would eliminate judicial immunity and subject judges to
20Mira Gur-Arieliability for <strong>the</strong>ir rulings garnered over 40,000 signatures. This is but oneexample <strong>of</strong> popular outcries condemning what is perceived as an elitistjudiciary that has overstepped its authority.Does a Judge Need a <strong>Jurisprudence</strong>?It has been said that <strong>the</strong>ories do not decide cases, judges do. Althoughinterpretive method is <strong>of</strong>ten condemned as being hopelessly influenced byideology, <strong>the</strong> fact that judges strive to ground <strong>the</strong>ir jurisprudence on neutralinterpretive principles suggests <strong>the</strong>y are aware <strong>of</strong> <strong>the</strong> importance <strong>of</strong> a transparentand legitimate process.In recent years, legal scholars have attempted to establish empirically <strong>the</strong>influence <strong>of</strong> ideology on judicial decision-making. The publication Judicaturehas published a number <strong>of</strong> articles describing voting patterns among judgesappointed by Democratic and Republican presidents, noting trends andhighlighting examples <strong>of</strong> when presumed political ideology appears to influencerulings in certain classes <strong>of</strong> cases (among <strong>the</strong>m, cases reviewing environmentalregulations, labor rights, and criminal sentencing).A recent study published in <strong>the</strong> journal Law & Society Review examinedSupreme Court decisions in cases that involved conflicts among judicial circuits(cases in which <strong>the</strong> U.S. courts <strong>of</strong> appeals reached different conclusions regarding<strong>the</strong> same questions <strong>of</strong> law). The study sought to investigate ”<strong>the</strong> impact <strong>of</strong>jurisprudential 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 <strong>the</strong> desire to find legallysound, persuasive solutions to legal questions plays a significant role in SupremeCourt decision making.” ConclusionPerhaps <strong>the</strong> difficulty <strong>of</strong> articulating an <strong>American</strong> jurisprudence for <strong>the</strong>21 st century – a difficulty experienced in <strong>the</strong> 18 th , 19 th and 20 th centuries as well -- is due to <strong>the</strong> complexity <strong>of</strong> <strong>the</strong> decision making process in legal cases. Judges Law & Society Review, Vol. 40, No. 1 (2006). Linquist at 156-157
2 Pr<strong>of</strong>. Gordana Vukadinović, PhDFaculty <strong>of</strong> Law, Novi Sad, SerbiaCONTEPORARY AMERICAN JURISPRUDENCEAND SERBIAN THEORY OF LAW AT THEBEGINNING OF THE TWENTY-FIRST CENTURYAbstract: In <strong>the</strong>ories contemporary <strong>American</strong> jurisprudence, <strong>the</strong>re aremany dierent orientations. Numerous approaches, orientations and <strong>the</strong>oriesalso mark <strong>the</strong> Serbian <strong>the</strong>ory <strong>of</strong> law, such as natural <strong>the</strong>ory, sociological, integralapproach, etc. Fur<strong>the</strong>rmore, natural law <strong>the</strong>ory in <strong>the</strong> USA, as well as in Serbia,have emphasized <strong>the</strong> same stipulation regarding ”quality and quantity” <strong>of</strong> <strong>the</strong>law in order to establish <strong>the</strong> Rule <strong>of</strong> law. Then, <strong>the</strong>re are also some similarities incritical approaches to <strong>the</strong> law, but with dierences in <strong>the</strong>oretical-methodologicalbasis. Initiative and influences <strong>of</strong> <strong>American</strong> jurisprudence are also evident in<strong>the</strong> area <strong>of</strong> legal education and legal ethics.Key words: <strong>the</strong>ory <strong>of</strong> law, law, morality, natural <strong>the</strong>ory <strong>of</strong> law, legal ethicsIIf we perceive changes in <strong>the</strong>ory within a wider framework – <strong>the</strong>y have,alongside with <strong>the</strong> establishment <strong>of</strong> <strong>the</strong> constitutional foundations <strong>of</strong> <strong>the</strong> civil era,contributed to a new epochal picture <strong>of</strong> <strong>the</strong> world and <strong>the</strong> powerful development<strong>of</strong> legal awareness. These changes are related to <strong>the</strong> systematic creation <strong>of</strong> lawsand new legal institutions, as well as to <strong>the</strong> development <strong>of</strong> legal reflections asexpressed through main currents in German, French, Italian, and, since <strong>the</strong>second half <strong>of</strong> <strong>the</strong> 20 th century, Anglo-<strong>American</strong> legal thought. If we want toexamine a certain segment <strong>of</strong> this thinking and uncover <strong>the</strong> most distinguishingcharacteristics <strong>of</strong> contemporary <strong>American</strong> jurisprudence; that is to say, if we wantto know what <strong>the</strong> main approaches are, what influences it exerts or undergoes,and to research its ”encounter” with European and within it Serbian <strong>the</strong>oretical
Conteporary <strong>American</strong> <strong>Jurisprudence</strong> and Serbian Theory <strong>of</strong> Law... 23and philosophical thought – it is first necessary to trace <strong>the</strong> map <strong>of</strong> legal<strong>the</strong>ories, approaches, and currents that have marked contemporary <strong>American</strong>jurisprudence since <strong>the</strong> beginning <strong>of</strong> <strong>the</strong> 21 st century.The research we have been conducting for some time indicates <strong>the</strong>following main currents in <strong>American</strong> jurisprudence: natural <strong>the</strong>ory <strong>of</strong> law,<strong>American</strong> Legal Realism, Critical Legal Studies (in fur<strong>the</strong>r text CLS), Law andEconomics, Law and Literature, Communitarianism, and feminist jurisprudence.Since Antiquity and to <strong>the</strong> present, Natural <strong>the</strong>ory <strong>of</strong> law has been afixture in European as well as <strong>American</strong> legal philosophy. Its permanence canbe attributed to <strong>the</strong> law’s complex and hierarchical duality, whose content isethically perfect (ideal), and that finds expression through justice or <strong>the</strong> generalgood. The principles <strong>of</strong> <strong>the</strong> natural law are superior to those <strong>of</strong> <strong>the</strong> positivistlaw 1 . In <strong>American</strong> jurisprudence, we can find its complete conceptions inworks <strong>of</strong> John Finis and Lone Fuller.As many authors have stated, <strong>American</strong> Legal Realism has not been acoherent intellectual movement, a consistent law <strong>the</strong>ory. It more closelyresembles a standpoint than a clear system <strong>of</strong> principles; more an assembly <strong>of</strong><strong>of</strong>ten contradictory conceptions than a firm structure <strong>of</strong> methodological and<strong>the</strong>oretical conceptions 2 . The beginning <strong>of</strong> Legal Realism in America can betraced to 1930 when Karl Llewellyn, a law pr<strong>of</strong>essor at Columbia University,published an article entitled A Realistic <strong>Jurisprudence</strong> – <strong>the</strong> Next Step, and whenJustice Jerome Frank first used <strong>the</strong> term legal realism 3 in his book Law and <strong>the</strong>Modern Mind. Theoretical and methodological sources <strong>of</strong> <strong>American</strong> LegalRealism can also be found in Oliver Wendell Holmes’ pragmatism 4 as well as insociological jurisprudence, especially in <strong>the</strong> work <strong>of</strong> Roscoe Pound.1G. Vukadinović, R.Stepanov: Teorija prava (Theory <strong>of</strong> Law), Vol. I, Petrovaradin, 2001, pp.170-1872M.J. Horwitz: The Transformation <strong>of</strong> <strong>American</strong> Law, 1870-1960, Cambridge, Harvard,1977, pp. 169, etc.3K. Llewellyn: A Realistic <strong>Jurisprudence</strong> – The Next Step, Columbia Law Review, April 1930;J. Frank: Law and <strong>the</strong> Modern Mind, London, 19304Holmes is mostly referred to as one <strong>of</strong> <strong>the</strong> four ”fa<strong>the</strong>rs” <strong>of</strong> progressive legal thought. It isemphasized in literature that <strong>the</strong> development <strong>of</strong> <strong>American</strong> legal thought since 1870 tilltoday has had six phases. The first is <strong>the</strong> period from 1830 to <strong>the</strong> last decades <strong>of</strong> <strong>the</strong> 19 th centuryand is referred to as classical legal thought. The second is called progressive legal thought.The third is legal realism dominant during <strong>the</strong> thirties in <strong>the</strong> 20 th century. The fourth, from<strong>the</strong> fifties on, is marked by negation and opposition to <strong>the</strong> legal realism – <strong>the</strong> antirealist legal
24Gordana VukadinovićPhilosophical Realism provided a wider frame in which <strong>American</strong> LegalRealism was conceived and developed. With <strong>the</strong> passage <strong>of</strong> time, <strong>the</strong> fieldbecame richer in both its contents and <strong>the</strong> ”strength” <strong>of</strong> its personalities. Thiscurrent was a result <strong>of</strong> cultural crisis, a product <strong>of</strong> America’s search for itsintellectual and moral sources. Beginning as such, <strong>American</strong> Legal Realismreached its climax in <strong>the</strong> 1940’s with <strong>the</strong> works <strong>of</strong> Karl Llewellyn, Jerome Frank,Felix S. Cohen, William O. Douglas, Walter W. Cook, John Ch. Gray, HesselYntema and o<strong>the</strong>rs 5 . Among numerous authors from this line, some createdcomplete works on overall general law (e.g. Llewellyn, Frank, Cohen) while <strong>the</strong>o<strong>the</strong>rs concentrated on fragmentary supplements, developing and explainingcertain aspects <strong>of</strong> law. Despite all <strong>the</strong> philosophical dierences separating thiscurrent’s notable authors, Llewellyn managed to concisely ascribe nine qualitiesto Legal Realism: ”1) Realists perceive law as something changeable, and elements<strong>of</strong> this changeability are visible in judicial creation <strong>of</strong> law; 2) Law is a means forreaching goals, so in accordance with that each segment <strong>of</strong> law should be perceivedin light <strong>of</strong> its objective and consequences; 3) The society changes faster than <strong>the</strong>law; 4) Realists separate Kant’s Sein and Sollen. They think that research shouldbe separated as well. The separation is not constant but limited to <strong>the</strong> study <strong>of</strong><strong>the</strong> facts; 5) Realists do not have confidence in traditional notions and legalnorms. Norms are considered as generalized prediction <strong>of</strong> what <strong>the</strong> courts aregoing to do; 6) They think that formulated norms are not crucial for rulings <strong>of</strong>movement. The fifth is called legal processes or neutral principles <strong>of</strong> schools <strong>of</strong> legal thought. Thesixth, <strong>the</strong> current phase is marked by movements between legal realism and legal processes orneutral principles which include Economic Analysis <strong>of</strong> Law and Critical Legal Studies andamong most important representatives are Ronald Dworkin and John Rawls. D. Kieso:Legal Reasoning in <strong>the</strong> United States from 1870 to <strong>the</strong> present.5F. Cohen: Transcendental Nonsense and Functional Approach, Columbia Law Review,No. 6. June 1935, Vol. XXXV; W. Cook: Scientific Method and <strong>the</strong> Law, <strong>American</strong> BarAssociation Journal, 1927; W. Douglas: Stare Decisis, Columbia Law Review, Vol. 46,1949; J.Gray: The Nature and Sources <strong>of</strong> <strong>the</strong> Law, New York, 1938; J. Frank: Law and <strong>the</strong> ModernMind, London, 1930; K. Llewellyn: <strong>Jurisprudence</strong>, Realism, Theory in Practice, Chicago, 1962;H. Yntema: <strong>American</strong> Legal Realism in Retrospect, 14 Vand Law Review, 1960, 96.Works on <strong>American</strong> Legal Realism: G. Gasper: Juristicher Realismus und Politiche Theoriein Amerikanischen Rechtsdenken, Berlin, 1967; H. W. Jones: Law and Morality in <strong>the</strong>Perspective <strong>of</strong> 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 <strong>American</strong>o, Milano, 1962;W. Twining : Karl N. Llewellyn and <strong>the</strong> Realistic Movement, London, 1993
Conteporary <strong>American</strong> <strong>Jurisprudence</strong> and Serbian Theory <strong>of</strong> Law... 25<strong>the</strong> courts; a court ruling is a rationalization a priori; 7) Unlike traditional<strong>the</strong>orists, <strong>the</strong>y support <strong>the</strong> grouping <strong>of</strong> cases and situations to more constrictedcategories and classes; 8) They emphasize <strong>the</strong> importance <strong>of</strong> evaluation <strong>of</strong> everysegment <strong>of</strong> <strong>the</strong> law in relation to <strong>the</strong> consequences and <strong>the</strong>y conduct researcheson <strong>the</strong> consequences; 9) Each problem connected to <strong>the</strong> law has to be analyzedin connection with <strong>the</strong> previous points 6 .Certainly, <strong>American</strong> Legal Realism has contributed significantly to <strong>the</strong>study <strong>of</strong> <strong>the</strong> law by insisting on <strong>the</strong> eects that <strong>the</strong> rulings have in practice andputting an accent on <strong>the</strong> conduct <strong>of</strong> <strong>the</strong> judges while making decisions. In o<strong>the</strong>rwords, it focuses on <strong>the</strong> application <strong>of</strong> <strong>the</strong> law. However, even some <strong>of</strong> <strong>the</strong>representatives <strong>of</strong> Legal Realism have objections to it. For example, H. Yntemapoints out that <strong>American</strong> Legal Realism neglects <strong>the</strong> humanist side <strong>of</strong> <strong>the</strong> law,overlooks <strong>the</strong> law’s comparative and historical aspects, and places too muchemphasis on concrete current practice. In so doing, he highlights how thisapproach fails to distinguish <strong>the</strong> main from <strong>the</strong> ephemeral, and <strong>the</strong> relevantfrom <strong>the</strong> irrelevant. Never<strong>the</strong>less, its main weakness is <strong>the</strong> over-emphasis <strong>of</strong> <strong>the</strong>court’s role in creating laws, especially Gray’s and Frank’s notion that ”<strong>the</strong>judge has sovereign prerogative to chose a legal rule among alternatives that hewill apply in a certain case” 7 .When it comes to <strong>the</strong> critics in <strong>the</strong> United States, <strong>American</strong> Legal Realismhas suered <strong>the</strong> attacks <strong>of</strong> <strong>the</strong> antirealist movement. Since <strong>the</strong> 1950s, <strong>the</strong> CatholicAssociation for Philosophy and catholic universities have been attacking realistpragmatism by equating it with <strong>the</strong> nihilism and qualifying Holmes’ ideas astotalitarian, while equating <strong>the</strong> realistic Thomism <strong>the</strong>y advocate with democracy.Since <strong>American</strong> Legal Realism neglects <strong>the</strong> ethical component <strong>of</strong> law andits connection to <strong>the</strong> moral, <strong>the</strong> ideas <strong>of</strong> <strong>the</strong> ”realists” are incomplete and<strong>the</strong>refore subject to critiques. For that reason, Llewellyn and Frank add elements<strong>of</strong> <strong>the</strong> natural law to <strong>the</strong>ir conceptions. Those transformations indicate fur<strong>the</strong>rdevelopment <strong>of</strong> numerous new orientations and additional movements in<strong>American</strong> jurisprudence, such as, besides <strong>the</strong> 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 <strong>of</strong> <strong>the</strong> Law, its Character, Relation and Connection to <strong>the</strong> Creation <strong>of</strong><strong>the</strong> Law), doctoral <strong>the</strong>sis, Podgorica, 1994, pp. 101-103).7K. Čavoški: Uvod u pravo (Introduction to <strong>the</strong> Law), Vol. I, Belgrade, 1994, pp. 32
26Gordana VukadinovićThese two abovementioned approaches to <strong>the</strong> law were dominant in <strong>the</strong>United States in <strong>the</strong> 1970s. The first, CLS, embodied <strong>the</strong> intellectual criticism <strong>of</strong>academic elites, while <strong>the</strong> latter School <strong>of</strong> Economic Analysis was formed bylesser-known economists who approached <strong>the</strong> law in perspective <strong>of</strong> <strong>the</strong> costsand use (pr<strong>of</strong>it). It was only in 1980 when Ronald Regan was elected president<strong>of</strong> <strong>the</strong> USA that this school, known also as The Chicago Law School, started toinfluence political and legal issues and became a discipline at all <strong>the</strong> universitiesin <strong>the</strong> USA 8 .The foundations <strong>of</strong> <strong>the</strong> Law and Economics school can be found in <strong>the</strong>works <strong>of</strong> Ronald Coase and Guido Calabresi 9 , and its best developed ideas arethose <strong>of</strong> Richard Posner, its most important representative 10 . All those belongingto this movement support <strong>the</strong> application <strong>of</strong> market analytical principlestowards solving <strong>the</strong> social diiculties that aect postindustrial society. Recognizingthat <strong>the</strong>re is a tight connection between law and economy, <strong>the</strong>y emphasize thatlaw is based on <strong>the</strong> principles <strong>of</strong> economics, and – above all – on rationality andeiciency. Legal regulations should ensure <strong>the</strong> most eicient allocation <strong>of</strong>economic funds and resources, and with that society’s prosperity. Given <strong>the</strong> factthat <strong>the</strong>re are less goods or resources than needed to meet <strong>the</strong> demand, a legalsolution should facilitate that <strong>the</strong> goods are used so as to maximize benefit. 11Richard Posner wants to apply methods <strong>of</strong> economics to all <strong>the</strong> aspects <strong>of</strong><strong>the</strong> law. His starting point is <strong>the</strong> fact that ”<strong>the</strong> presence <strong>of</strong> <strong>the</strong> economy in <strong>the</strong>law is <strong>the</strong> foundation <strong>of</strong> <strong>the</strong> positive <strong>the</strong>ory <strong>of</strong> this aspect <strong>of</strong> <strong>the</strong> law is <strong>the</strong> most8Economic Analysis has spread through Europe as well. Therefore a new subject wasintroduced at some universities in Germany – Economic Analysis9R. Coase: The Problem <strong>of</strong> Social Cost, Journal <strong>of</strong> Law and Economics, 3, 1960; G. Calbresi:Some Thoughts on Risk Distribution in <strong>the</strong> Law <strong>of</strong> Torts, Yale Law Journal, 70, 1961; TheCosts <strong>of</strong> Accidents, A Legal and Economic Analysis, New Haven – London, 197010R. Posner; Economic Analysis <strong>of</strong> Law, Boston – Toronto, 1972; The Economics <strong>of</strong> Justice,Harvard, 1983. There is vast literature on this school. A symposium was held in 1980 on <strong>the</strong>subject: Efficiency as a Legal Concern, H<strong>of</strong>stra Law Review, 8, 1980; L.A. Kornhauser: L’analyseeconomique du droit, Revue de Synthèse, 1985; P Bechrens: Askekte einer őkonomicherTheorie des Rechts, Rech<strong>the</strong>orie, 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 <strong>of</strong> Economic Analysis <strong>of</strong> <strong>the</strong> Law), Pregled, Sarajevo, No. 6-7,1987. A more detailed list <strong>of</strong> literature in A. Jovanović: Uvod u ekonomsku analizu prava(The Introduction to <strong>the</strong> Economic Analysis <strong>of</strong> <strong>the</strong> Law), Belgrade, 1998; V. Vodinelić: Građanskopravo, uvodne teme (Civil Law, Introductory Topics) Belgrade, 1991, pp. 141-14411V. Vodinelić : op.cit., pp. 142
Conteporary <strong>American</strong> <strong>Jurisprudence</strong> and Serbian Theory <strong>of</strong> Law... 27promising”. Seeking to increase social wealth and maximize <strong>the</strong> gross domesticproduct, Posner argues that <strong>the</strong> law’s purpose must be <strong>the</strong> maximum increase <strong>of</strong><strong>the</strong> wealth, and not <strong>the</strong> support for <strong>the</strong> state <strong>of</strong> prosperity. 12 In his work TheProblematic <strong>of</strong> Moral and Legal Theory 13 , he rejects <strong>the</strong> role <strong>of</strong> moral <strong>the</strong>ory inlegal research and advocates a pragmatism that resembles that which OliverWendell Holms espoused at <strong>the</strong> beginning <strong>of</strong> <strong>the</strong> century.Posner also believes that certain economic notions and principles are typical<strong>of</strong> <strong>the</strong> economic analysis <strong>of</strong> <strong>the</strong> law. First, he contends that any analytical startingpoint must recognize that resources are rare and limited because we live in <strong>the</strong>world <strong>of</strong> scarce resources (e.g. capital, labor, money, land, and o<strong>the</strong>r natural goods,life, health, time, etc.) Second, individuals make decisions that are in <strong>the</strong>ir personalinterest and <strong>the</strong>y strive to maximize <strong>the</strong>ir benefit. 14 ”People are systematicallybehaving rationally, meaning that <strong>the</strong>y look for <strong>the</strong> best connection between rareresources and <strong>the</strong> goals <strong>the</strong>y want to achieve.” That means that <strong>the</strong>y try to make <strong>the</strong>realization <strong>of</strong> this maximum goal possible, by making <strong>the</strong> right decision based on<strong>the</strong> given resources. On <strong>the</strong> o<strong>the</strong>r hand, rational behavior means that <strong>the</strong> goal isachieved with minimal resources and costs. Therefore, rational behavior isillustrated by <strong>the</strong> ”maximization <strong>of</strong> <strong>the</strong> results/eects (for given costs – resources)”or minimization <strong>of</strong> <strong>the</strong> costs (for <strong>the</strong> given goal)” 15 . Third, <strong>the</strong> subject matter <strong>of</strong> <strong>the</strong>economic analysis revolves around individual decisions, because <strong>the</strong> behavior <strong>of</strong>groups, organizations, and even nation-states can be observed through <strong>the</strong>decisions made by individuals. This approach is extremely important from <strong>the</strong>point <strong>of</strong> view <strong>of</strong> political, corporate, and familial decision-making. Fourth,economics is a science <strong>of</strong> rational choice starting with <strong>the</strong> limited resourcescondition and <strong>the</strong> assumption that man rationally maximizes his objectives.Therefore, <strong>the</strong> task <strong>of</strong> economics is to examine <strong>the</strong> consequences <strong>of</strong> decisions,regarding <strong>the</strong> scarce resources selected in order to achieve a goal. Fifth, <strong>the</strong> basicinstruments <strong>of</strong> economic analysis are supply and demand. ”Supply is formed basedon <strong>the</strong> relation between <strong>the</strong> costs <strong>of</strong> production <strong>of</strong> <strong>the</strong> goods and its price. Demandis established based on <strong>the</strong> relation <strong>of</strong> <strong>the</strong> utility a consumer gains from use <strong>of</strong> <strong>the</strong>product and its price. The interaction between <strong>the</strong> supply and demand forms12Z. Grebo: op.cit., pp. 46613A. Posner: The Problematic <strong>of</strong> Moral and Legal Theory, Harvard, 200214Utility is defined as a sense <strong>of</strong> satisfaction that a certain individual gains from an economicactivity he undertook, that is from <strong>the</strong> decision one made. (A. Jovanović : op.cit., pp. 18)15Ibid.
28Gordana Vukadinovićdetermines <strong>the</strong> price and <strong>the</strong> quantity <strong>of</strong> <strong>the</strong> goods on <strong>the</strong> market.” Sixth, eiciencymeans that <strong>the</strong> resources are used where <strong>the</strong>y have <strong>the</strong> maximum value. Thisdefinition <strong>of</strong> eiciency broadly includes all individual decisions on <strong>the</strong> use <strong>of</strong> <strong>the</strong>resources with which individuals seek to maximize <strong>the</strong>ir own benefit. When itcomes to <strong>the</strong> legal system, economic <strong>the</strong>ory considers <strong>the</strong> eects <strong>of</strong> legal rules interms <strong>of</strong> <strong>the</strong> eicient allocation <strong>of</strong> <strong>the</strong> resources, and not in terms <strong>of</strong> ethics.If we try to approach <strong>the</strong> School <strong>of</strong> Economic Analysis at a conceptuallevel, it can be reduced to <strong>the</strong> following four postulations: behaviorism,normative and descriptive approach, and evolutionism. 16Alternatively, <strong>the</strong> Critical Legal Studies movement was founded in 1977at a conference at <strong>the</strong> University <strong>of</strong> Wisconsin-Madison with <strong>the</strong> goal <strong>of</strong>critically questioning legal phenomena 17 . The Movement progressed 18 in ashort period. Not only did <strong>the</strong> number <strong>of</strong> members increase 19 , but <strong>the</strong>irphilosophical, <strong>the</strong>oretical and methodological sources became more diverse and<strong>the</strong> area <strong>of</strong> research broader 20 . That is why it is nearly impossible to define itscommon traits.The reasons for CLS’ influence and popularity partly stem from <strong>the</strong>specificity <strong>of</strong> <strong>American</strong> culture and <strong>the</strong> national prestige <strong>of</strong> its exclusive ”centers”– i.e. Harvard and Stanford Universities – but to a large extent also from <strong>the</strong>intellectual ”fashion” or popularity <strong>of</strong> certain <strong>the</strong>oretical currents and approaches.Still, CLS is undoubtedly a turning point compared to <strong>the</strong> previouslyaccepted ideas – especially those <strong>of</strong> legal realists – because <strong>the</strong> movementperceives law as a multitude <strong>of</strong> social rules or, as one <strong>of</strong> its most importantrepresentatives has more precisely stated, CLS is ”a new way <strong>of</strong> interpretationand application <strong>of</strong> <strong>the</strong> law” 21 . Its adherents believe that <strong>the</strong> 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 <strong>the</strong> origins <strong>of</strong> <strong>the</strong> Movement some twenty years before whenmost <strong>of</strong> <strong>the</strong> authors, that is founders <strong>of</strong> <strong>the</strong> movement, were already politically engaged in<strong>the</strong> fight for human rights and against <strong>the</strong> war in Vietnam.18The first European meeting, where <strong>the</strong> name Critical Legal Studies (abbr. CLS), was heldin March 1981 in London.19In <strong>the</strong> Bibliography <strong>of</strong> CLS from 1984, 150 academic authors are mentioned. D. Kennedyand A. Klare: Bibliography <strong>of</strong> Critical Legal Studies, 94 Yale Law Journal, 461, 1984.20<strong>Jurisprudence</strong>, 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 <strong>American</strong> <strong>Jurisprudence</strong> and Serbian Theory <strong>of</strong> Law... 29ensure realization <strong>of</strong> group, party, or class interests. In <strong>the</strong> view <strong>of</strong> its advocates,<strong>the</strong> rich and <strong>the</strong> powerful use law as an instrument <strong>of</strong> force in order to maintain<strong>the</strong>ir position in <strong>the</strong> social hierarchy. CLS’ fundamental stance is that <strong>the</strong> law isa political instrument; it is not neutral, let alone beyond values. Many members<strong>of</strong> this movement advocate a change in <strong>the</strong> hierarchical structure that favorsdomination in <strong>the</strong> modern world. There is a faith in <strong>the</strong> possibility and need for<strong>the</strong> radical and discontinued change 22 .Critical Legal Studies is mostly associated to Roberto Mungabeira Ungerand Duncan Kennedy, who is called <strong>the</strong> forefa<strong>the</strong>r <strong>of</strong> CLS, but also linked toRobert Gordon and Catharine MacKinnon 23 . All <strong>of</strong> <strong>the</strong>se authors stand for <strong>the</strong>critical approach to <strong>the</strong> law but adopt dierent practical, <strong>the</strong>oretical, andmethodological starting points (i.e. <strong>American</strong> Legal Realism, Marxism, feminismand post-structuralism).If, as A. Kaufman used to say, we continue to overcome <strong>the</strong> ”diiculty <strong>of</strong> <strong>the</strong>generalization” regarding <strong>the</strong> CLS <strong>the</strong>n it is necessary to point to its critical attitudetowards <strong>the</strong> School <strong>of</strong> Economic Analysis and empirical legal positivism. On <strong>the</strong>o<strong>the</strong>r hand, CLS is connected to <strong>the</strong> feminism, or more precisely, <strong>the</strong>re is a feministapproach 24 to <strong>the</strong> law within CLS, that is mostly interested in researching <strong>the</strong> roleand importance <strong>of</strong> sexes in <strong>the</strong> law and in <strong>the</strong> human law in general.If we look at <strong>the</strong> totality <strong>of</strong> CLS, <strong>the</strong> movement itself contains enoughelements that could be seriously criticized. Realists freed <strong>the</strong> law from <strong>the</strong> pastin order to make an eicient instrument – politics. CLS on <strong>the</strong> o<strong>the</strong>r 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 <strong>of</strong> 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 <strong>of</strong> Law, New York, 1982; M. Horwitz: The Transformation <strong>of</strong> <strong>American</strong> Law1870-1960, Cambridge, 1977; M. Jay: Dialectical imagination: A History <strong>of</strong> <strong>the</strong> FrankfurtSchool and <strong>the</strong> Institute <strong>of</strong> Social Research 1923 – 1950, Boston, 1973; D. Kairys: The Politics<strong>of</strong> 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 <strong>of</strong>Ideology and Law, London, 1979; E. Thompson: Wigs and Hunters – <strong>the</strong> Origin <strong>of</strong> 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 <strong>the</strong> International law see : H. Charlesworth: The Feminist Methods in InternationalLaw, <strong>American</strong> Journal <strong>of</strong> International Law, Vol. 93, April 1999, No. 2, pp. 370-394
30Gordana Vukadinović<strong>the</strong> question <strong>of</strong> what <strong>the</strong> law should be like. The only goal <strong>of</strong> <strong>the</strong> critique is <strong>the</strong>critique itself.Never<strong>the</strong>less, CLS’ most important advocate, Roberto Mugabeira Unger,has made <strong>the</strong> most consistent eort in trying to build a positive <strong>the</strong>ory for <strong>the</strong>change <strong>of</strong> existing society. First, he criticizes liberal doctrine in order to reachano<strong>the</strong>r, as he says, alternative doctrine called personality <strong>the</strong>ory. Unger deemsthis <strong>the</strong> foundation for <strong>the</strong> definition <strong>of</strong> social ideal. Above all, he wants to”establish a <strong>the</strong>ory <strong>of</strong> human emancipation as well as a <strong>the</strong>ory <strong>of</strong> law based on <strong>the</strong>idea <strong>of</strong> a man, similar to <strong>the</strong> one <strong>of</strong> G. Radbruh” 25 , and to <strong>the</strong> one J.-J. Rousseau 26made, but with dierent bases, long before him. In spite <strong>of</strong> critiques concerning <strong>the</strong>individualistic conception <strong>of</strong> personality, he should be recognized because hemanaged, starting with a critique <strong>of</strong> <strong>the</strong> liberalism, to set up an organization <strong>of</strong><strong>the</strong> society that would exchange <strong>the</strong> liberal state and its existing legal system.With Unger, at <strong>the</strong> end, all <strong>the</strong> previous presentations are nothing but asummary review <strong>of</strong> widespread movement 27 that continues to exist in America.Marked by eclectism, CLS has kept its negative orientation to <strong>the</strong> law and<strong>American</strong> authors within fragmentary approaches to <strong>the</strong> law refer to it asacademic nihilism.In addition to <strong>the</strong> already mentioned approaches, <strong>the</strong>re is ano<strong>the</strong>r withimportant members in America – Law and Literature, advocated by R.A. Posner 28 .He compares law to <strong>the</strong> forms and structures <strong>of</strong> literal works. Using <strong>the</strong> terminologyand methodology <strong>of</strong> literary <strong>the</strong>ory, this movement gives a possibility to understand<strong>the</strong> juristic discourse unrelated to dogmatism. It never<strong>the</strong>less goes beyondDworkin’s question as to whe<strong>the</strong>r law can be interpreted equivalently with literature.25A. Kaufman: Pravo i razumevanje prava (Law and Understanding <strong>of</strong> <strong>the</strong> Law), Belgrade,1998, pp. 293.26For Rousseau natural rights to freedom and equality express <strong>the</strong> basic attributes <strong>of</strong> humannature. G. Vukadinović: Žan-Žak Ruso i prirodno pravo (Jean-Jacques Rousseau and NaturalLaw), 3 rd edition, Petrovaradin, 2005.27Even at <strong>the</strong> last symposium in <strong>the</strong> USA, dedicated to Methods in International Law, <strong>the</strong>importance <strong>of</strong> CLS was pointed out. The movement researched what <strong>the</strong> law consists <strong>of</strong>, or<strong>the</strong> relevance <strong>of</strong> <strong>the</strong> law to politics, focusing on contradictions, hypocrisy and falseinternational legal discours. A group <strong>of</strong> authors around CLS, that <strong>of</strong>ten referred to itself asto a New Stream emphasized <strong>the</strong> importance <strong>of</strong> culture for <strong>the</strong> development <strong>of</strong> law, and<strong>of</strong>fered a critique <strong>of</strong> <strong>the</strong> progress <strong>of</strong> <strong>the</strong> law in confrontation with state sovereignity(<strong>American</strong> Journal <strong>of</strong> International Law, April 1999, Vol. 93, No. 2, pp. 294)28R. A. Posner: Law and Literature, Harvard, 1988.
Conteporary <strong>American</strong> <strong>Jurisprudence</strong> and Serbian Theory <strong>of</strong> Law... 31In addition to <strong>the</strong> previously mentioned streams, Posner also includesfeminism, comunitarianism and multiculturalism in contemporary <strong>American</strong>jurisprudence 29 .IIIn our <strong>the</strong>ory <strong>of</strong> law after having been dominated for nearly half acentury by <strong>the</strong> almost exclusive conception that <strong>the</strong> law was <strong>the</strong> will <strong>of</strong> <strong>the</strong>ruling class, and that <strong>the</strong> state was <strong>the</strong> organization with <strong>the</strong> monopoly on physicalviolence, pluralism is beginning to replace this view in <strong>the</strong> comprehension <strong>of</strong><strong>the</strong> law. Besides that, a new attitude has been ”breaking through” during <strong>the</strong> lasttwo decades – an attitude that believes that values such as human dignity,justice, freedom, tolerance are <strong>the</strong> criteria for both <strong>the</strong> foundation <strong>of</strong> <strong>the</strong> lawand compulsory legal norms 30 .Values as attributes <strong>of</strong> <strong>the</strong> notion <strong>of</strong> <strong>the</strong> law can be found in such authorswho, ra<strong>the</strong>r than advocate natural law <strong>the</strong>ory, support integralism. ”Law is not aplain norm but expresses a specific social process for which a certain type <strong>of</strong>social relations, values and norms are typical”. In o<strong>the</strong>r words, ”law is a realitywhose purpose is to be at <strong>the</strong> service <strong>of</strong> <strong>the</strong> society, its order, its peace and itsmaintenance. While basic values are: legal safety, and legal eiciency, orpreservation <strong>of</strong> 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 <strong>the</strong>re has been ”a renaissance <strong>of</strong> <strong>the</strong> idea <strong>of</strong> <strong>the</strong> naturallaw”, and that our and <strong>American</strong> <strong>the</strong>ories are getting closer .A complete, original and developed conception <strong>of</strong> natural law can befound in <strong>the</strong> work <strong>of</strong> pr<strong>of</strong>. Slobodan Perović 32 , founder and main representative29R. Posner: The Problems <strong>of</strong> <strong>Jurisprudence</strong>, Harvard, 1993, pp. 393 etc.30In contemporary philosophy <strong>of</strong> law, in <strong>the</strong> world a certain jusnaturalism appears not onlyin a political sense <strong>of</strong> human law, but more in a legal sense <strong>of</strong> faith in a function and naturalfunctioning <strong>of</strong> law and lawyers. (R. Sève: Avant-Propos, Archives de philosophie du droit,1988, t. 33, 21). Relation between <strong>the</strong> justice and law ant <strong>the</strong> role <strong>of</strong> justice in law andthrough <strong>the</strong> law are particularly considered by Ch. Perelman, M. Villey, J. Rawls , R. Nozik,F. A. Hayek, G. H<strong>of</strong>fe, and o<strong>the</strong>rs.31S. Blagojević: Pravo i stvarnost (Law and Reality), Belgrade, 1995.32S. Perović: Pravno-filoz<strong>of</strong>ske rasprave (Legal and philosophical discussions), Belgrade, 1995.
32Gordana Vukadinović<strong>of</strong> <strong>the</strong> Kopaonik School <strong>of</strong> natural law 33 . The Kopaonik School <strong>of</strong> Civil Lawgrew into <strong>the</strong> School <strong>of</strong> Natural Law. The Kopaonik School, especially during itsperiod <strong>of</strong> isolation from world heritage and general legal culture, has not onlybeen ”a scientific but a cultural success that cannot be compared to any o<strong>the</strong>r in<strong>the</strong> world”. Works printed in volumes <strong>of</strong> a publication Pravni život (Legal life)are pro<strong>of</strong> <strong>of</strong> <strong>the</strong> most serious scientific and expert critique <strong>of</strong> <strong>the</strong> law and <strong>the</strong>state during an extremely diicult totalitarian and authoritarian period. In thatwork, we can see that two critically oriented approaches – CLS in America and<strong>the</strong> Kopaonik School have certain similarities despite <strong>the</strong>ir dierent <strong>the</strong>oreticaland methodological foundations.The first conclusion that strikes us is that natural <strong>the</strong>ory <strong>of</strong> <strong>the</strong> law inboth <strong>the</strong> United States and Serbia puts an emphasis on <strong>the</strong> same demandsregarding ”<strong>the</strong> quality and <strong>the</strong> quantity <strong>of</strong> <strong>the</strong> law” 34 . L. Fuller starts with <strong>the</strong>law that one can respect, which has a minimum <strong>of</strong> morality. Unless legal normsdo not contain a minimum <strong>of</strong> morality, <strong>the</strong>y cannot be eicient and <strong>the</strong>refore<strong>the</strong>y cannot be called legal at all. Fuller vividly describes <strong>the</strong> most obvious waysfor <strong>the</strong> legal system to end in failure or a catastrophe. They are: first <strong>of</strong> all 1) <strong>the</strong>situation where rules are not established and each case is solved ad hoc; <strong>the</strong>n, 2)if legal rules are not published and are not available for <strong>the</strong> use <strong>of</strong> those who areexpected to obey <strong>the</strong>m; or 3) if retroactive action is misused, that does not onlyprevent <strong>the</strong> eect <strong>of</strong> <strong>the</strong> norm in <strong>the</strong> future but also endangers <strong>the</strong> integrity <strong>of</strong> <strong>the</strong>rules, <strong>the</strong> fact that <strong>the</strong>y are prospective in eects; or 4) rules are expressed inincomprehensible terms; 5) rules contradict one ano<strong>the</strong>r; 6) passing <strong>of</strong> <strong>the</strong> rulesthat demand impossible behavior; 7) frequent changes <strong>of</strong> <strong>the</strong> rules that result in<strong>the</strong> incapability <strong>of</strong> <strong>the</strong> subject to act according to <strong>the</strong>m; and at <strong>the</strong> end 8) failureto synchronize published rules and <strong>the</strong>ir application. 35 In o<strong>the</strong>r words, Fullerholds that <strong>the</strong> existence <strong>of</strong> any <strong>of</strong> <strong>the</strong>se 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 <strong>of</strong>, is being created at <strong>the</strong> moment when he has alreadyacted according to ano<strong>the</strong>r rule, is incomprehensible, contradictory with33B.S. Marković: Poruka učesnicima savetovanja, (Message to <strong>the</strong> participants <strong>of</strong> <strong>the</strong>consultation), Pravni život ( Legal life), 1995, No. 1-2, pp. 1934S. Perović: Pravno-filoz<strong>of</strong>ske rasprave (Legal and philosophical discussions), Belgrade, 1995.35L.L. Fuller: Moralnost prava (Morality <strong>of</strong> Law), Podgorica, 1999, pp. 42 etc.
Conteporary <strong>American</strong> <strong>Jurisprudence</strong> and Serbian Theory <strong>of</strong> Law... 33ano<strong>the</strong>r rule from <strong>the</strong> same system, requests something impossible, or which isbeing changed from minute to minute 36 .Most authors in our literature agree on <strong>the</strong> fact that one <strong>of</strong> <strong>the</strong> keyreasons for legal ineiciency is <strong>the</strong> great degree <strong>of</strong> incoherence between socialreality and law, ”in <strong>the</strong> sense <strong>of</strong> necessary dose <strong>of</strong> legitimacy <strong>of</strong> <strong>the</strong> law, andthrough a variety <strong>of</strong> 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, <strong>the</strong> law is not an omnipotent instrument 38 . O<strong>the</strong>r flawsin <strong>the</strong> law can be added: hasty solutions, taking <strong>the</strong> solution <strong>of</strong> <strong>the</strong> ”o<strong>the</strong>rs” thatdoes not correspond to <strong>the</strong> reality, <strong>the</strong> <strong>of</strong>ten equivocal language <strong>of</strong> <strong>the</strong> law andits complicated messages with multiple possibilities <strong>of</strong> interpretation 39 . All <strong>the</strong>seflaws lead to o<strong>the</strong>r legal flaws and it becomes enormous, disharmonic, subjectto change, and <strong>the</strong>refore diicult if not impossible to apply at all 40 .Both our and <strong>American</strong> philosophical thoughts give solutions to <strong>the</strong>same questions in order to achieve a realization <strong>of</strong> <strong>the</strong> legal state, that is to say<strong>the</strong> Rule <strong>of</strong> law. At <strong>the</strong>ir core, all <strong>of</strong> <strong>the</strong>se discussions have <strong>the</strong> basic problem,which is according to Fuller ”<strong>the</strong> morality <strong>of</strong> <strong>the</strong> law”, <strong>the</strong> question <strong>of</strong> <strong>the</strong>relation <strong>of</strong> <strong>the</strong> law to moral values.On <strong>the</strong> o<strong>the</strong>r hand, <strong>the</strong> ”critical approach” to law is in both spirit andname very similar to CLS. In our country <strong>the</strong> Kopaonik School <strong>of</strong> Natural Law,was developed on <strong>the</strong> basis <strong>of</strong> <strong>the</strong> natural law and has been ga<strong>the</strong>ring at itsannual December meetings around 2000 lawyers, in <strong>the</strong> volumes <strong>of</strong> <strong>the</strong> reviewPravni život (Legal life), and in about 4000 works, a combination <strong>of</strong> <strong>the</strong>ory andpractice. Additionally it oers a severe and thorough critique <strong>of</strong> <strong>the</strong> existing lawand visions <strong>of</strong> possible solutions.O<strong>the</strong>r than <strong>the</strong> previously mentioned similarities, one could <strong>the</strong>n askwhat <strong>the</strong> influences <strong>of</strong> Anglo-<strong>American</strong> jurisprudence 41 are on our <strong>the</strong>oreticalattitudes in <strong>the</strong> area <strong>of</strong> university education 42 . The influence <strong>of</strong> <strong>American</strong><strong>the</strong>ory can be observed in <strong>the</strong> area <strong>of</strong> legal ethics concerning educational issues.36Op.cit., pp. 43 etc.37S. Perović: Pravno-filoz<strong>of</strong>ske 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 <strong>of</strong> practical reception, above all <strong>the</strong> practice incontractual law.
34Gordana VukadinovićAt <strong>the</strong> initiative <strong>of</strong> <strong>the</strong> <strong>American</strong> lawyer’s association (Bar) Legal ethics hasbeen introduced as an optional subject in <strong>the</strong> programs at our Faculties <strong>of</strong> Law(Schools <strong>of</strong> Law) 43 . Despite causing some program, literary, and organizationaldiiculties, <strong>the</strong> subject has attracted greater numbers <strong>of</strong> students in <strong>the</strong> past fouryears, in large part because <strong>of</strong> its new method (e.g. use <strong>of</strong> <strong>the</strong> case study),current topics, and problems. Over <strong>the</strong> past four years, <strong>the</strong> group has increasedfrom 40 to 300 students, with participants attending lectures in legal ethics. Itsconnection to practice and some <strong>of</strong> <strong>the</strong> most eminent legal associations andexperts, namely <strong>the</strong> Lawyers’ Association <strong>of</strong> Vojvodina, has additionally improved<strong>the</strong> quality <strong>of</strong> <strong>the</strong> program and influenced <strong>the</strong> number <strong>of</strong> students.When it comes to educational programs and research works, we wouldlike to point out that individual research in <strong>the</strong> area <strong>of</strong> <strong>American</strong> jurisprudence<strong>the</strong> post-graduate studies in <strong>the</strong>ory <strong>of</strong> law started more than a decade ago. Lateron, <strong>the</strong>y grew into a single coherent and integral research task. In that perspective,<strong>the</strong> concrete results are two finished master <strong>the</strong>ses while a third is being preparedat this moment. A doctoral <strong>the</strong>sis is also being prepared on <strong>the</strong> iusnatural <strong>the</strong>oryin America. Moreover we have presented <strong>the</strong> main developmental streams in<strong>American</strong> jurisprudence in a legal <strong>the</strong>ory textbook 44 for first year students <strong>of</strong>Faculty <strong>of</strong> Law. A monograph, entitled Legal Thought <strong>of</strong> <strong>the</strong> 20 th <strong>Century</strong> 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 <strong>of</strong> that. Of course, ”<strong>the</strong> list” <strong>of</strong>influences does not end <strong>the</strong>re. We could also talk about o<strong>the</strong>r spheres <strong>of</strong> influence,but when it comes to <strong>the</strong> areas <strong>of</strong> <strong>the</strong>ory and legal philosophy, we have done alot to bridge our experiences and consider <strong>the</strong>se eorts to be a small part <strong>of</strong> 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 <strong>of</strong> Law), Vol. 2, Petrovaradin, 200645R. Stepanov, G. Vukadinović: Pravna misao XX veka (Legal Thought <strong>of</strong> <strong>the</strong> 20 th <strong>Century</strong>),Petrovaradin, 2000
3 Pr<strong>of</strong>. Agneš Kartag-Odri, PhDFaculty <strong>of</strong> Law, Novi Sad, SerbiaNEW PERSPECTIVES IN AMERICANLEGAL THEORYAbstract: The author’s intention is to identify <strong>the</strong> concepts that havestructured feminist legal <strong>the</strong>ory in <strong>the</strong> late 20 th century in <strong>the</strong> USA. Her eort isto trace <strong>the</strong> variety <strong>of</strong> ways in which <strong>the</strong>se concepts have been transformed,critiqued and appropriated. At its results, <strong>the</strong>re are some ’key words’ in legalfeminism that are becoming a part <strong>of</strong> scientific debates and legal terminology.Since <strong>the</strong>se terms are finding <strong>the</strong>ir place in Serbian legal and political thinking,<strong>the</strong> article starts with defining basic terms and naming <strong>the</strong> disciplines. Feministlegal <strong>the</strong>ory is expressed by a triangular model: women–legal <strong>the</strong>ory–law reforms.Since feminist <strong>the</strong>ory is not monolithic, and it is not constructed as a relativelyunitary genre, <strong>the</strong> central part <strong>of</strong> <strong>the</strong> article is devoted to liberal, radical, culturaland dierence feminism.The conclusion contains some possibilities <strong>of</strong> how to create some attachmentto legal feminism in order to ensure <strong>the</strong> visibility <strong>of</strong> relevant feminist topics, whichmay result in law reforms, new laws, mechanisms and institutional changes for<strong>the</strong> improvement <strong>of</strong> women’s human rights.Key words: feminist legal <strong>the</strong>ory, feminist jurisprudence, dierencefeminisms, women’s human rights”Like people and schools <strong>of</strong> criticism,ideas and <strong>the</strong>ories travel – from person toperson, from situation to situation, from oneperiod to ano<strong>the</strong>r, and as <strong>the</strong>ory travels, soit is transformed by its new uses, its newposition in a new time and place.” 11Said, E.: The world, <strong>the</strong> Text and <strong>the</strong> Critic (London: Vintage) 1983:226
36Agneš Kartag-OdriI IntroductionThe aim <strong>of</strong> this paper is to identify <strong>the</strong> concepts that have structured legalthinking in <strong>the</strong> period since <strong>the</strong> second half <strong>of</strong> <strong>the</strong> 20 th century, indicating <strong>the</strong>irprovenance in ”travelling <strong>the</strong>ory” in <strong>the</strong> USA. On <strong>the</strong>ir way <strong>the</strong>se ideas anddiscourses meet with o<strong>the</strong>r traditions <strong>of</strong> thought and practice, producing pluralforms, which in turn circulate within transformed <strong>the</strong>ory. Since most culturesare (as a consequence <strong>of</strong> globalization), interwoven, none are single or pure. On<strong>the</strong> contrary: <strong>the</strong>y are ra<strong>the</strong>r heterogeneous and non-monolithic. 2 No longer is itpossible to speak about a singular legal <strong>the</strong>ory, nor has this been a one-way process.Legal feminism has also travelled a long way (since liberal feministsdemand <strong>the</strong> 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 <strong>of</strong> potential that is capable<strong>of</strong> producing; transformations <strong>of</strong> reforms in <strong>the</strong> legal system and policy.Feminist legal <strong>the</strong>ory and feminist politics <strong>of</strong> <strong>the</strong> 1990’s in <strong>the</strong> USA have afresh set <strong>of</strong> priorities, with an emphasis on women’s human rights, with arenaissance <strong>of</strong> feminist <strong>the</strong>ory in law and in academic knowledge. These newlyrecognized ideas might end in law reforms for <strong>the</strong> improvement <strong>of</strong> women’sposition and <strong>of</strong> <strong>the</strong>ir human rights. The tendency is to reconceptualize <strong>the</strong>knowledge itself, which academic feminism reflects in a new institutional practice.On its way <strong>of</strong> travelling, <strong>the</strong> altered understanding about gender hasemerged in a number <strong>of</strong> disciplines. Feminist <strong>the</strong>ory 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 <strong>the</strong> legal system and institutions.Contemporary legal feminists (western and non-western, especially thosewho are seeking accession to <strong>the</strong> EU) ask some fundamental questions aboutgender and human rights using <strong>the</strong> 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 <strong>the</strong>ories <strong>of</strong> human rights, since rights have a2Said, E.: Culture and Imperialism (London: Chatto and Vindus) 1993: XXIX
New Perspectives in <strong>American</strong> Legal Theory 37crucial place not only in modern jurisprudence and political thought, but alsoin campaigning for gender equality. One <strong>of</strong> <strong>the</strong> reasons for this is that bothfeminism and human rights have grown out <strong>of</strong> similar and specific culturalhistories. Because <strong>of</strong> this connection, feminist legal <strong>the</strong>ory might provide auseful basis for critical appraisal <strong>of</strong> <strong>the</strong> modern culture <strong>of</strong> human rights.In current debates about <strong>the</strong> human rights <strong>of</strong> women, feminist legal<strong>the</strong>ory has a strong, reconstructive and normative voice: it engages not only inanalysis and critique <strong>of</strong> <strong>the</strong> current law, but also in reformist arguments abouthow law and institutions might be o<strong>the</strong>rwise.Our starting point is that a coherent school <strong>of</strong> thought needs to beestablished around a concrete object <strong>of</strong> study. In a case <strong>of</strong> legal feminism, itwould be a figure <strong>of</strong> a woman. Feminist <strong>the</strong>orists <strong>of</strong> law not only study her legalposition, but also oer her legal help, especially when she is in <strong>the</strong> position <strong>of</strong> <strong>the</strong>victim. Within this formulation, legal feminists seek a <strong>the</strong>oretical model thatwill provide <strong>the</strong>m with suicient normative base, suggesting progressivemovement in a global context.Better legal <strong>the</strong>ory will make law reforms to meet <strong>the</strong> needs <strong>of</strong> women.Therefore, we shall have in mind <strong>the</strong> following triangular model: women–legal<strong>the</strong>ory–law reforms. This model, created by feminist legal <strong>the</strong>orists, is a schemethat could bring into relation feminism, legal <strong>the</strong>ory and practice, producingchanges and reforms in law both on <strong>the</strong> national and international level.The Republic <strong>of</strong> Serbia is in <strong>the</strong> process <strong>of</strong> adopting new constitution, anew law on gender equality, and an anti-discriminatory law. High hopes are setfor <strong>the</strong> time when <strong>the</strong>y come into force. These drafts already reflect <strong>the</strong>importance <strong>of</strong> including gender perspectives, gender sensitive language, andprinciples <strong>of</strong> non-discrimination on <strong>the</strong> basis <strong>of</strong> race, ethnicity, gender andsexual ailiation. They also contain ideas for (re)construction <strong>of</strong> <strong>the</strong> rights inways responsive to legal feminist critique in order to better a woman’s position.To do this, one also needs <strong>the</strong> <strong>the</strong>oretical knowledge <strong>of</strong> legal feminists and <strong>the</strong>irmodified application to its own legal, socio-economic, cultural and politicalcontext. These drafts contain <strong>the</strong> above-mentioned ideas about <strong>the</strong> intimaterelationship between <strong>the</strong> general human rights observance in Serbia and <strong>the</strong>status women enjoy in <strong>the</strong> state – not only because respect for human rightsimplies <strong>the</strong> rule <strong>of</strong> law and a well-established and independent judiciary. It alsoopens <strong>the</strong> universal question <strong>of</strong> access to power and decision – making it <strong>the</strong>socio-economic and political sphere. In all <strong>the</strong>se areas, women continue to facediscrimination, despite <strong>the</strong> promulgation <strong>of</strong> domestic and international
38Agneš Kartag-Odristandards that espouse equality. Therefore, it is crucial for <strong>the</strong> new constitutionand new laws (on gender equality, anti-discrimination, etc.) to be solid andclear guarantees <strong>of</strong> <strong>the</strong> equality <strong>of</strong> women and men and a reliable guide for <strong>the</strong>activities <strong>of</strong> legislators to keep in mind <strong>the</strong> basic idea <strong>of</strong> feminist legal <strong>the</strong>orists.II A Need for Legal Feminism and <strong>the</strong> Uses <strong>of</strong> LawIn order to avoid terminological misunderstandings and conflicts, it isimportant to start with defining <strong>the</strong> notions <strong>of</strong> <strong>the</strong> basic terms and naming <strong>the</strong>disciplines that will be used in this paper. It is well known that <strong>the</strong>ory and sciencedier from practice or activity. Law as a ”good reason for action” also consists –as its integral part – <strong>of</strong> practice and <strong>the</strong>ory or scholarship (with <strong>the</strong> latter dividinginto normative legal <strong>the</strong>ory, commonly known as jurisprudence or legal <strong>the</strong>ory)and empirical legal science (which subdivides into sociology <strong>of</strong> law, psychology<strong>of</strong> law, etc.). 3Normative legal science is a discipline that interprets and systematizeslegal standards (values, norms, principles, etc.) with a view <strong>of</strong> facilitating <strong>the</strong>irapplication in legal practice. In Continental Europe, legal doctrine has been mademainly in academies, by law pr<strong>of</strong>essors, while in <strong>the</strong> Anglo-<strong>American</strong> world it ismostly a creation <strong>of</strong> judges. Legal scholarship can be seen as a bridge betweennormative and empirical legal <strong>the</strong>ory, a necessary connection between politicalideals and political action. We will use and apply this classification also in <strong>the</strong>case <strong>of</strong> feminist legal <strong>the</strong>ory as an academic discipline and a school <strong>of</strong> thought.Never<strong>the</strong>less, before doing so, we have to answer a preliminary question: what isfeminism and is <strong>the</strong>re a minimum content to it?In legal and political thinking, few topics have stirred a storm such asfeminism. The movement spread all over <strong>the</strong> world challenging previously stablevalues and power relationships and render anxious changes. 4 Historically, asseen later, <strong>the</strong>re have been many feminisms grounded and defined dierently.Our preliminary definition <strong>of</strong> feminism incorporates <strong>the</strong> following: a doctrine<strong>of</strong> equal rights <strong>of</strong> women and an ideology <strong>of</strong> social transformation aiming to3”<strong>Jurisprudence</strong> is <strong>of</strong>ten referred to as ’<strong>the</strong>’ science <strong>of</strong> law, ’<strong>the</strong>’ <strong>the</strong>ory <strong>of</strong> law.” Scoular, J.:”Feminist <strong>Jurisprudence</strong>”, in: Jackson, S. – Jones, J. (ed.): Contemporary Feminist Theories(New York University Press) 1998:684Monori, G.: ”Feminist <strong>Jurisprudence</strong> in <strong>the</strong> 21st century”, u Andrássy. Gy. – Visegrády, A.:Jog és jogászok a 21. század küszöbén, (Pécs: JATE) 2004:56
New Perspectives in <strong>American</strong> Legal Theory 39create a world for women beyond simple social equality, 5 including <strong>the</strong> necessaryreforms in <strong>the</strong> legal system.However, a couple <strong>of</strong> indices seem to be <strong>the</strong> irreducible minimums (oraspects) which constitute <strong>the</strong> imperative <strong>of</strong> feminism. Minimally, <strong>the</strong> term implies<strong>the</strong> ”identification <strong>of</strong> women as systematically oppressed”. 6 (This is because<strong>the</strong>re are so many clear examples <strong>of</strong> <strong>the</strong> continuation <strong>of</strong> power structures thatovertly work against women) This feature leads us to <strong>the</strong> second aspect whichstresses that ”so much <strong>of</strong> what feminist scholars and activists do now, isnecessarily strategic and contingent.” 7 The third minimal content that has to bepresent is <strong>the</strong> feminists’ commitment to change and a refusal to accept <strong>the</strong>circumstances which continue to operate against women.These aspects, among o<strong>the</strong>rs, that constitute a force and a field <strong>of</strong> activitywithin which feminists pursue <strong>the</strong>ir 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 <strong>the</strong> academynor will it be able to enter a dialectal relationship with o<strong>the</strong>r sciences or <strong>the</strong>oriesas an equivalent partner.Feminist <strong>the</strong>oreticians <strong>of</strong>ten attack abstract universal <strong>the</strong>ories on <strong>the</strong>social world, including law. Yet, many have attempted to oer a feminist version <strong>of</strong>jurisprudence or a <strong>the</strong>ory as a scientific and objective truth, or to construct anentire legal <strong>the</strong>ory <strong>of</strong> women’s oppression, valorizing gender dierences. It isimportant to stress out that <strong>the</strong>re is a dierence between ”feminist legal scholars”and ”legal feminists”. Feminist <strong>the</strong>oreticians have also tried to find a model thatcould bring into relation legal <strong>the</strong>ory with practice, focusing on law reforms.Who are feminist legal scholars? The term suggests that <strong>the</strong>y are ”morethan feminists working in law” with <strong>the</strong> commitment to <strong>the</strong>ir feminism, and<strong>the</strong>ir ”work is constituted in a form that suggests a school <strong>of</strong> thought”. 8 Feministscholarship is a looser formulation than legal feminism. It might connotate amuch broader range <strong>of</strong> 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 <strong>of</strong> Feminist Theory, (London: Arnold)2002:937Bottomley, A.: ”Shock to Thought – An Encounter (<strong>of</strong> a Third Kind) with Legal Feminism”,Feminist Legal Studies , 00/2004:328Naffine, N.: ”In Praise <strong>of</strong> Legal Feminism”, Legal Studies 22/1, 2002:809Bottomley, A.: op. cit. p. 35
40Agneš Kartag-OdriOn <strong>the</strong> o<strong>the</strong>r hand, according to some <strong>the</strong>oreticians, 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 <strong>the</strong> centre <strong>of</strong> legal feminism. It suggests a series <strong>of</strong> moves from gender toharm to reform (and from general <strong>the</strong>ory to specific example to proposal forchange). Therefore, feminist work is presented by <strong>the</strong> formulation: placing womenin <strong>the</strong> centre <strong>of</strong> an exploration <strong>of</strong> <strong>the</strong> gendered content <strong>of</strong> law and consequentlyseeking a strategy for change. In short, we can conclude that <strong>the</strong> general purpose<strong>of</strong> legal feminism is revealing harm to women, <strong>of</strong>ten caused by law. This requiresthat women as objects <strong>of</strong> study become visible. In this article our concern will bethis particular notion <strong>of</strong> legal feminism – while we have to keep in mind all <strong>the</strong>relativity and <strong>the</strong> diiculties that occur in <strong>the</strong> process <strong>of</strong> naming our disciplines anddisciplining <strong>the</strong> diicult, awkward and uneven features <strong>of</strong> feminist legal <strong>the</strong>ory.But it was necessary to be done for recognition – inclusion <strong>of</strong> <strong>the</strong> discipline into <strong>the</strong>academy at a particular level, as a school <strong>of</strong> thought, as a body <strong>of</strong> knowledge thatcan be presented within terms that <strong>the</strong> academy recognizes as ”legal <strong>the</strong>ory”. 11III The Role <strong>of</strong> Law in Constituting <strong>the</strong> Social Meaning <strong>of</strong> GenderCentral to <strong>the</strong> feminist approach is <strong>the</strong> ra<strong>the</strong>r sharp distinction betweensex and gender. In short, in Anglophone feminist <strong>the</strong>ory sex was understood asa bodily or biological category, and gender as <strong>the</strong> socially constructed meaning<strong>of</strong> sex. 12 This distinction was adapted to dierentiate <strong>the</strong> socio-cultural meanings<strong>of</strong> ”masculinity/femininity” from <strong>the</strong> base <strong>of</strong> biological sex dierences <strong>of</strong>”male/female”. According to some feminists, 13 women’s biological structureaects not only <strong>the</strong>ir psychic identity but also <strong>the</strong>ir place in gender hierarchy. Itis <strong>the</strong> legal system’s reinforcement <strong>of</strong> <strong>the</strong>se sexualized (dominant and subordinate)10ibid. p. 1211There might be certain linguistic, terminological, and technical difficulties as a consequence<strong>of</strong> translating <strong>the</strong>se terms from English into o<strong>the</strong>r languages. It is likely that outside <strong>the</strong>English-speaking countries, <strong>the</strong> terminus technicus such as ”feminist scholarship” will notbe popular, and it will presumably be replaced by <strong>the</strong> term feminist jurisprudence, feministlegal <strong>the</strong>ory 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 <strong>Jurisprudence</strong>, p. 65
New Perspectives in <strong>American</strong> Legal Theory 41positions that form <strong>the</strong> central focus <strong>of</strong> radical perspectives <strong>of</strong> law. Though thisdistinction very soon gained its critics, 14 it played an important role in shifting<strong>the</strong> political and intellectual focus to <strong>the</strong> role <strong>of</strong> law in constituting <strong>the</strong> socialmeanings <strong>of</strong> gender. The ”law and gender” approach presented <strong>the</strong> framework<strong>of</strong> sex/gender division as a general category for critical legal analysis, andopened up <strong>the</strong> possibility that <strong>the</strong> law’s contribution to <strong>the</strong> sexing or gendering<strong>of</strong> its subject might interact with o<strong>the</strong>r social forces, constituting a multiplefemale subject position. It assumed not only a powerful and dynamic role <strong>of</strong> lawin <strong>the</strong> constitution <strong>of</strong> gender, but also a wide ranging and potentially radical lawreform agenda. Fur<strong>the</strong>rmore, it opened up <strong>the</strong> possibility <strong>of</strong> incorporating sexualorientation in <strong>the</strong> critical analysis <strong>of</strong> <strong>the</strong> law’s constitution <strong>of</strong> gender, promisingfinally to explode <strong>the</strong> myth <strong>of</strong> sex/gender as exclusively ’a woman problem’.Contemporary feminist legal <strong>the</strong>ory is constructed out <strong>of</strong> a combination <strong>of</strong>analytic and political-ethical claims. Analytically, <strong>the</strong> claim is that sex/gender is oneimportant structure <strong>of</strong> social dierentiation and <strong>the</strong>refore it might have influence inshaping <strong>the</strong> law. Politically and ethically, feminist legal <strong>the</strong>ory starts out from <strong>the</strong>assumption that <strong>the</strong> ways in which sex/gender has shaped <strong>the</strong> world, includingthrough <strong>the</strong> law, have been unjust, consisting also in domination, oppression anddiscrimination. It is well known that legal sex dierentiation on <strong>the</strong> whole is adisadvantage to feminist legal <strong>the</strong>ory as it is not constructed as a relatively unitarygenre. Therefore, it is important to generalize among <strong>the</strong>m, showing its truevariety. The following part shows <strong>the</strong> strength <strong>of</strong> <strong>the</strong> feminist work in law and <strong>the</strong>attempts to pull all <strong>the</strong>se heritages toge<strong>the</strong>r. It will be recognized that feminists havestruggled with a number <strong>of</strong> issues surrounding <strong>the</strong> study <strong>of</strong> women.IV Dierent Versions <strong>of</strong> Feminist (Legal) TheoryCompulsory feminist <strong>the</strong>ory is extremely diverse. A significant movementwithin feminism towards <strong>the</strong>orizing multiplied this variety, 15 but <strong>the</strong> commitment14The concept <strong>of</strong> gender has been criticized on <strong>the</strong> grounds that <strong>the</strong> gendering <strong>of</strong> people,actions and things within culture is always implicated in differences o<strong>the</strong>r than those <strong>of</strong> sex.There is a powerful case that masculinity and femininity are constructed not alongside race,class, ethnicity and nationality, but in and through <strong>the</strong>se and o<strong>the</strong>r distinctions, and that itis misleading to privilege sex in accounts <strong>of</strong> <strong>the</strong> social construction <strong>of</strong> masculinity andfemininity. Andermah, S. – Lovell, T. – Wolkowitz, C.: A Glossary <strong>of</strong> Feminist Theory, p. 10315This process includes, among o<strong>the</strong>rs, psychoanalytic or post-structuralist <strong>the</strong>ory andjurisprudence.
42Agneš Kartag-Odrito eliminate <strong>the</strong> subordination <strong>of</strong> women unified <strong>the</strong> diverse strands <strong>of</strong> feminist<strong>the</strong>ory. 16 However, this agreement soon dissolved into radically dierent accounts<strong>of</strong> that subordination and <strong>of</strong> <strong>the</strong> measures required to eliminate it.It is crucial to emphasize that distinctions between feminisms are nothard or fast. On <strong>the</strong> contrary: <strong>the</strong> lines cross and recross. 17 Feminism(s) createda rich source <strong>of</strong> social, legal or cultural <strong>the</strong>ory and practice, which has had amajor impact on law and culture. Because <strong>of</strong> <strong>the</strong>se processes, we have to realizethat <strong>the</strong>se are models ra<strong>the</strong>r than detailed taxonomies: some writers fall betweenseveral <strong>of</strong> <strong>the</strong> classifications. The categories are useful both in understanding<strong>the</strong> development <strong>of</strong> feminist thought and in seeing how dierent (political)orientation have led feminist legal scholars to take up opposing positionsconcerning <strong>the</strong> deployment <strong>of</strong> legal rights as a framework <strong>of</strong> analysis <strong>of</strong> politicaland legislative strategy.In this part, we shall focus on some basic feminist criticism <strong>of</strong> <strong>the</strong> waymainstream (political) <strong>the</strong>ories attend, or fail to attend, to <strong>the</strong> interest and concerns<strong>of</strong> women, discussing liberal, radical, cultural and dierence feminism.1 Liberal Feminism – The Feminism <strong>of</strong> EqualityLiberalism has become <strong>the</strong> dominant political expression <strong>of</strong> progressivethought in <strong>the</strong> modern age, but it encompasses a range <strong>of</strong> doctrines. The generalidea could be that liberalism centres on core ideas <strong>of</strong> autonomy, <strong>of</strong> universalrights, <strong>of</strong> equal citizenship, and <strong>of</strong> democracy, but exactly what <strong>the</strong>se ideasamount to has varied over <strong>the</strong> decades.Liberal feminism has most <strong>of</strong>ten been characterized as feminism <strong>of</strong>equality, 18 sharing an ”egalitarian plateau”, or a commitment to <strong>the</strong> idea that allmembers <strong>of</strong> <strong>the</strong> community should be treated as equals. 19 Liberal feminism hasbeen particularly associated with <strong>the</strong> ideas <strong>of</strong> formal equality and <strong>of</strong> equality <strong>of</strong>opportunity, although contemporary liberal <strong>the</strong>ories such as that <strong>of</strong> Ronald16Jaggar, A.: Feminist Politics and Human Nature (New York: Rowman and Allanheld)1983:517Andermarh, S. – Lovell, T. – Wolkowitz, C.: A Glossary <strong>of</strong> Feminist Theory (London:Arnold) 2002:22218ibid. p.4819Kymlicka, W.: Contemporary Political Philosophy, An Introduction (Oxford UniversityPress) :376
New Perspectives in <strong>American</strong> Legal Theory 43Dworkin also subscribe to stronger principles <strong>of</strong> equality, such as equality <strong>of</strong>resources or equality <strong>of</strong> concern and respect. 20It is important to give a short analysis <strong>of</strong> some <strong>of</strong> <strong>the</strong> arguments made byfeminist critics <strong>of</strong> liberalism. An initial stage <strong>of</strong> feminist criticism <strong>of</strong> law is <strong>of</strong>tenassociated with <strong>the</strong> identification <strong>of</strong> sexual equality with equal treatment, rejectingany notion that <strong>the</strong> law should tolerate or recognize intrinsic dierences betweenwomen and men. 21 The strategy taken over by liberal feminists is to demand <strong>the</strong>law to fulfill <strong>the</strong> liberal claims for its objectivity and principled basis. They haveworked for reform <strong>of</strong> <strong>the</strong> law, dismantling legal barriers to women being treatedlike men in <strong>the</strong> public sphere. The assumption is that <strong>the</strong> disadvantages sueredby women can be compartmentalized and redressed by a simple requirement <strong>of</strong>equal treatment. This approach adopts <strong>the</strong> vocabulary, epistemology and political<strong>the</strong>ory <strong>of</strong> <strong>the</strong> 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 <strong>of</strong> 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 <strong>the</strong> distribution <strong>of</strong> goods is structured along gender lines.” 23 It assumes a”world <strong>of</strong> autonomous individuals starting a race or making free choices [which]has no cutting edge against <strong>the</strong> fact that men and women are simply runningdierent races.” 24 The language <strong>of</strong> ”equal rights” and ”equal opportunities” tacitlyreinforces <strong>the</strong> basic organization <strong>of</strong> society. 25The subsequent general feminist criticism <strong>of</strong> liberal <strong>the</strong>ory, and a recurring<strong>the</strong>me in feminist legal scholarship, is <strong>the</strong> analysis <strong>of</strong> <strong>the</strong> distinction betweenpublic and private spheres. This dichotomy assumes <strong>the</strong> public sphere as asphere <strong>of</strong> rationality, order and political authority in which political and legal20Dworkin, R.: Sovereign Virtue: The Theory and Practice <strong>of</strong> Equality (Harvard UniversityPress) 2000:1; 6521Lacey, N.: ”Feminist Legal Theory and <strong>the</strong> Rights <strong>of</strong> 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 <strong>of</strong> Women – National and International Perspectives (University <strong>of</strong>Pennsylvania Press) 1994:63-6423Lacey, N.: ”Legislation Against Sex Discrimination – Questions from a Feminist Perspective”,Journal <strong>of</strong> Law and Sociology, 14/1984:411, 41524ibid. p. 42025Dalton, C.: ”Where We Stand: Observation on <strong>the</strong> Situation <strong>of</strong> Feminist Legal Thought”,Berkeley Women’s Law Journal, 3/1987-88:1, 5
44Agneš Kartag-Odriactivity take place, and <strong>the</strong> private sphere as a ”subjective” one in which regulationis not appropriate. Domestic and family life is typically regarded as <strong>the</strong> center <strong>of</strong> <strong>the</strong>private world 26 . In western society, women are relegated to <strong>the</strong> privacy <strong>of</strong> homeand family. The public sphere (<strong>of</strong> <strong>the</strong> workplace, law, economics and politics, andintellectual and cultural life) is regarded as <strong>the</strong> province <strong>of</strong> men. This phenomenonhas been explained as a matter <strong>of</strong> nature, convenience, or individual choice. Onefeminist answer to <strong>the</strong>se claims is that <strong>the</strong> public/private distinction in fact operatesboth to obscure and to legitimize men’s domination <strong>of</strong> women. The public/privatedichotomy is gendered: it is a ”metaphor for <strong>the</strong> social patterning <strong>of</strong> gender, adescription <strong>of</strong> sociological practice, and a category grounded in experience.” 27 It isalso a normative distinction, since greater significance and power is attached to <strong>the</strong>public, male world. The assignment <strong>of</strong> women to <strong>the</strong> domestic sphere entrenches<strong>the</strong>ir inequality with men, for women are regarded as dependent on men forsubsistence. Moreover, <strong>the</strong> privacy <strong>of</strong> domestic life makes women’s concernsinvisible and ensures preservation <strong>of</strong> <strong>the</strong> status quo.The feminist concern with <strong>the</strong> public/private dichotomy in (western) legalthought looks at <strong>the</strong> way that <strong>the</strong> law has been used to exclude women from <strong>the</strong>public sphere – from pr<strong>of</strong>essions, from <strong>the</strong> vote, etc. Analyzing <strong>the</strong> distinctionin this sense can be particularly useful in <strong>the</strong> area <strong>of</strong> human rights law.Why is <strong>the</strong> lack <strong>of</strong> regulation <strong>of</strong> particular areas <strong>of</strong> social life significant forwomen? Some feminist legal scholars argue that ”<strong>the</strong> absence <strong>of</strong> law devalueswomen and <strong>the</strong>ir functions: women are simply not important enough to meritlegal regulation”. 28 However, it is important also to recognize that a deliberatepolicy <strong>of</strong> non-intervention by <strong>the</strong> state does not signify non-control or neutrality. 29The regulation <strong>of</strong> areas such as employment, taxation, social security, and crimehas a significant impact on <strong>the</strong> private sphere and reinforces a particular sort <strong>of</strong>family unit – a nuclear family in which <strong>the</strong>re is a division <strong>of</strong> labour between26The distinction between public and private spheres is drawn by <strong>the</strong>orists in a variety <strong>of</strong>ways. For example, it can refer to <strong>the</strong> distinction between politics and economic and sociallife or between state and society. Carol Pateman discusses some <strong>of</strong> <strong>the</strong> complexities <strong>of</strong> <strong>the</strong>distinction in ”Feminist Critiques <strong>of</strong> <strong>the</strong> 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 <strong>the</strong> Public and <strong>the</strong> 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 <strong>the</strong> Role <strong>of</strong>Law” in Politics <strong>of</strong> Law, ed. Kairys, D. (NY: Pan<strong>the</strong>on Books) 1982:12229O’Donovan, K.: Sexual Division in Law (London: Weidenfeld and Nicolson) 1986:7
New Perspectives in <strong>American</strong> Legal Theory 45men and women. 30 The lack <strong>of</strong> direct intervention by <strong>the</strong> state in <strong>the</strong> name <strong>of</strong>protection <strong>of</strong> privacy can thus disguise <strong>the</strong> inequality and domination exercisedin <strong>the</strong> private sphere. 31 In western domestic legal systems, <strong>the</strong> distinction betweenpublic and private speaks for <strong>the</strong> sexual violence on which patriarchy is based: itcreates a space into which <strong>the</strong> ordinary protection <strong>of</strong> law against violence will notbe allowed to penetrate. The most all-encompassing harm against women tendsto occur right within <strong>the</strong> inner sanctum <strong>of</strong> <strong>the</strong> private realm: within <strong>the</strong> family.Therefore, in western legal systems <strong>the</strong> non- -regulation <strong>of</strong> <strong>the</strong> private spherelegitimates self-regulation, which inevitably transforms into male dominance.Consequently, feminists have questioned both <strong>the</strong> commitment <strong>of</strong> liberalismto gender-neutrality in law and legal analysis. In a world where sex/genderappears to be a basic axis <strong>of</strong> social dierentiation (although mediated througho<strong>the</strong>r variables such as class, race, age, ethnicity, etc.), <strong>the</strong> question is whe<strong>the</strong>rlegal subjects can generally be constructed as gender-neutral, and whe<strong>the</strong>r thiscan be formulated in gender-neutral language. In relation to rights, this alsoraises <strong>the</strong> question <strong>of</strong> whe<strong>the</strong>r a gender-neutral set <strong>of</strong> universal human rightsmight not need to be replaced or supplemented in certain areas by special rightsfor women or members <strong>of</strong> o<strong>the</strong>r groups. 322 Radical Feminism – The Exclusively Feminist ConceptionRadical feminism has been an influential and intellectually powerfulstrand in contemporary feminist legal <strong>the</strong>ory. It is <strong>of</strong>ten claimed to be <strong>the</strong> mostautonomous and distinctive conception <strong>of</strong> feminism in that it is exclusively afeminist <strong>the</strong>ory. Originating in North America, it was born out <strong>of</strong> dissatisfactionwith radical left-wing politics and gave <strong>the</strong> ”second wave” <strong>of</strong> <strong>the</strong> women’smovements a cutting edge in <strong>the</strong> late 1960s and early 1970s. 3330ibid. p.14-1531Charlesworth, H.: What are Women’s International Human Rights, p. 7032In this context, <strong>the</strong> UN Convention on <strong>the</strong> Elimination <strong>of</strong> All Forms <strong>of</strong> DiscriminationAgainst Women (CEDAW) (New York, 18 Dec. 1979, in force as <strong>of</strong> 3 Sept. 1981, 1249 UNTS13) is <strong>of</strong> particular interest, carefully positioned as it is between a universal conception <strong>of</strong>human rights and a woman-centred political focus.33”Second -wave feminism” was commonly used to refer to women’s liberation movementfrom <strong>the</strong> late 1960’s chiefly in North America and Europe. ”First-wave feminism” culminatedin a number <strong>of</strong> gains for women including <strong>the</strong> right to vote in <strong>the</strong> late 19th and early 20 thcentury. Andermahr, S. – Lovell, T., – Wolkowitz, C.: A Glossary <strong>of</strong> Feminist Theory (London:
46Agneš Kartag-OdriAt <strong>the</strong> same time, it is diicult to set out any unifying features <strong>of</strong> radicalfeminism. At <strong>the</strong> risk <strong>of</strong> stereotyping, we could say that radical feminists viewsexual dierence as a factor bearing a certain priority in social life: <strong>the</strong>y 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 <strong>the</strong> 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 <strong>of</strong> <strong>the</strong>ir sexuality. 36Radical perspectives on <strong>the</strong> law are anti<strong>the</strong>tical to liberal notions in thatinequality ra<strong>the</strong>r than equality between individuals is assumed. The fact thatwomen are not equal is seen not only as a question <strong>of</strong> dierence but also as amatter <strong>of</strong> unequal distribution <strong>of</strong> power: ”Gender... is a matter <strong>of</strong> dominance,not dierence... The dierence is that men have power and women do not.” 37Radical <strong>the</strong>ories focus on <strong>the</strong> central issue <strong>of</strong> power, being less concernedwith <strong>the</strong> narrowness <strong>of</strong> legal doctrine and its inability to recognize dierences. Theproblem is ”...not that dierences are not valued; <strong>the</strong> problem is that <strong>the</strong>y aredefined by power.” 38 Law reinforces, and legitimizes this objectification: ”Law isnot neutral (as it claims to be) vis-à- vis <strong>the</strong> 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 <strong>of</strong> inequality forwhich <strong>the</strong> central question is always ”whe<strong>the</strong>r <strong>the</strong> policy or practice in questionintegrally contributes to <strong>the</strong> maintenance <strong>of</strong> 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 <strong>of</strong> <strong>the</strong> State (Cambridge, MA: HarvardUniversity Press) 1989:12435MacKinnon, C.: ”Feminism, Marxism, Method and <strong>the</strong> State”, Journal <strong>of</strong> Women in Cultureand Society 3/1982:51536MacKinnon, C.: Toward a Feminist Theory <strong>of</strong> <strong>the</strong> State, p. IX37ibid.38ibid. p. 839Cornell, D.: Beyond Accommodation: Ethical Feminism, Deconstruction and <strong>the</strong> Law(London: Routlege) 1991:121
New Perspectives in <strong>American</strong> Legal Theory 47because <strong>of</strong> gender status.” 40 Some <strong>of</strong> <strong>the</strong> critics <strong>of</strong> this <strong>the</strong>ory 41 stress thatMacKinnon’s approach is not always easily applied because many <strong>of</strong> <strong>the</strong>relationships <strong>of</strong> subordination sanctioned by <strong>the</strong> law are so deeply embeddedthat <strong>the</strong>y appear quite natural. It involves looking ”for that which we have beentrained not to see... [identifying] <strong>the</strong> invisible.” 42 If <strong>the</strong> issue <strong>of</strong> inequality isredescribed as one <strong>of</strong> domination and subordination, sex discrimination laws thatsimply promise equal treatment appear <strong>of</strong> limited utility. Catharine MacKinnonhas worked ra<strong>the</strong>r for an expansion <strong>of</strong> <strong>the</strong> domain <strong>of</strong> <strong>the</strong> law to cover traditionallylegally unrecognized harms <strong>of</strong> particular concern to women such as sexualharassment and pornography. She argues that <strong>the</strong> feminist project in law is tolegitimize <strong>the</strong> real injuries that women suer in order to make <strong>the</strong>m unacceptable.This is a way, though a slow one, to transform gender relations. UsingMacKinnon’s analysis, o<strong>the</strong>r feminist lawyers have described discriminations at<strong>the</strong> workplace and o<strong>the</strong>r institutions where practices are more compatible withculturally defined male life partners than female ones. 43Some <strong>of</strong> <strong>the</strong> ideas <strong>of</strong> radical feminism, <strong>the</strong>refore, might be identified in<strong>the</strong> following: women are oppressed as women, and <strong>the</strong>ir oppressors are men,and male oppression has primacy over all o<strong>the</strong>r oppressions. In this way, radicalfeminism was responsible for uncovering <strong>the</strong> extent <strong>of</strong> violence against women,sexual harassment, 44 and <strong>the</strong> role <strong>of</strong> law in maintaining pornography as ”aninstitution <strong>of</strong> gender inequality... [which] like rape... fuses <strong>the</strong> eroticization <strong>of</strong>domination and submission with <strong>the</strong> social construction <strong>of</strong> male and female.” 45Like liberal feminism, radical feminist thought has been subject to apersuasive critique. One <strong>of</strong> <strong>the</strong> points <strong>of</strong> criticism has been <strong>the</strong> relatively limitedsubstantive focus. Most radical feminist lawyers focus on a very particular set <strong>of</strong>40MacKinnon, C.: Feminism Unmodified, p. 341Charlesworth, H.: ”What are Women’s International Human Rights?” in: Cook, R. (ed.)Human Rights <strong>of</strong> Women (University <strong>of</strong> Pennsylvania) 1999:6742MacKinnon, C.: Sexual Harassment <strong>of</strong> Working Women (New Haven: Yale UniversityPress) 197943Littleton, A., C.: Equality and Feminist Legal Theory, University <strong>of</strong> Pittsburgh Law Review,48/1987:104344Monori, G.: Feminist <strong>Jurisprudence</strong> in <strong>the</strong> 21st <strong>Century</strong> 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 <strong>of</strong> critique has been <strong>the</strong> status <strong>of</strong> radical feminism as <strong>the</strong> socalledgrand <strong>the</strong>ory. More pluralistic feminists have objected to radical feminism’smonolithic <strong>the</strong>ory <strong>of</strong> ’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 <strong>of</strong> radical feminism, cultural feminism is a label thathas been applied to a form which puts forward <strong>the</strong> existence <strong>of</strong> women’s culture,and which privileges culture in its analyses. 48 Like o<strong>the</strong>r early second-wavefeminisms, (like liberal, radical, or Marxist) cultural feminism shared <strong>the</strong>overwhelming consensus that <strong>the</strong> dierences in nature between sexes were <strong>of</strong>small significance, but were magnified through ideological cultivation. 49 In o<strong>the</strong>rwords, <strong>the</strong> dierences in question are held to be cultural and psychic ra<strong>the</strong>r thannatural and inevitable. The essence <strong>of</strong> this form <strong>of</strong> feminist jurisprudence is <strong>the</strong>identification <strong>of</strong> a distinctive ”woman’s voice” in <strong>the</strong> legal context and a reevaluation<strong>of</strong> <strong>the</strong> contribution it can make to legal doctrine. The work <strong>of</strong> <strong>the</strong>child-psychologist Carol Gilligan has had a particular influence on <strong>the</strong>development <strong>of</strong> cultural feminism. 50 She notes <strong>the</strong> disparity between women’sexperience and <strong>the</strong> representation <strong>of</strong> human development contained inpsychological literature. The usual interpretation <strong>of</strong> this phenomenon was thatit indicated problems in women’s psychological development. Gilligan turns thisanalysis upside down by arguing that <strong>the</strong> failure <strong>of</strong> women to fit existing models<strong>of</strong> human growth suggested a limitation in <strong>the</strong> notion <strong>of</strong> <strong>the</strong> human condition.The hypo<strong>the</strong>sis drawn from Gilligan’s research by feminist legal scholars in <strong>the</strong>context <strong>of</strong> national legal systems is that just as traditional psychological <strong>the</strong>orieshave privileged <strong>the</strong> male perspective and marginalized women’s voices, so lawalso privileges a male view <strong>of</strong> <strong>the</strong> universe. Many feminists have pointed out that46Lacey, N.: Feminist Legal Theory and <strong>the</strong> Rights <strong>of</strong> Women, in: Knop, K. (ed.) Genderand Human Rights (Oxford University Press) 2004:2447ibid.48Segal, L.: Is <strong>the</strong> Future Female? Troubled Thoughts on Contemporary Feminism (London:Viraga) 198749Andermahr, S. et al:A Glossary <strong>of</strong> Feminist Theory, p. 4850Gilligan, C.: In a Different Voice: Psychological Theory and Women’s Development(Cambridge, MA: Harvard University Press) 1982
New Perspectives in <strong>American</strong> Legal Theory 49law is part <strong>of</strong> <strong>the</strong> structure <strong>of</strong> male domination. Its hierarchical organization, itsadversarial format, and its aim <strong>of</strong> an abstract resolution <strong>of</strong> competing rightsmake <strong>the</strong> law an intensely patriarchal institution. The law represents a verylimited aspect <strong>of</strong> human experience. The language and imagery <strong>of</strong> <strong>the</strong> 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, <strong>the</strong> area <strong>of</strong> women. 51Concerning legal reasoning, Gilligan also attempted to explain why women’smoral voice was devalued in contemporary moral <strong>the</strong>ory, including law. 52 Under<strong>the</strong> standard ethical scheme, she found that rights were assumed to be <strong>the</strong> normand that any deviation was ascribed lesser value. This coincided with <strong>the</strong> discoverythat women were more inclined to have an ethical outlook that valued care asopposed to rights. Thus in system <strong>of</strong> moral reasoning women’s voice wassystematically devalued. Gilligan concluded that our ethical systems <strong>of</strong> justice mustdevelop to take in <strong>the</strong> excluded feminine ethics <strong>of</strong> care. 53 Her study suggests thatmen and women see matters such as justice and equality dierently; <strong>the</strong>refore, a<strong>the</strong>ory that seems appropriate for one group might not be for <strong>the</strong> o<strong>the</strong>r. Accordingto <strong>the</strong> female view, <strong>the</strong> world (including <strong>the</strong> state) is not a ’hierarchy ladder’ wherehuman interactions are seen as individuals competing for positions. 54 Quite <strong>the</strong>contrary: according to <strong>the</strong> female view, <strong>the</strong> world/state is a web <strong>of</strong> relationships.Therefore, <strong>the</strong>y are not concerned only with climbing ladders, but also withkeeping <strong>the</strong> web intact and with balancing everyone on it. This ”view from <strong>the</strong>web” produces a morality with emphasis on responsibilities ra<strong>the</strong>r than rights.Assessing <strong>the</strong> dierences between feminine and masculine modes <strong>of</strong>reasoning in legal systems is not without problems. 55 However, <strong>the</strong> value <strong>of</strong>51Charlesworth, H.: ”What are ’Women’s International Human Rights’?” in: Cook, R. (ed)Human Rights <strong>of</strong> Women, National and International Perspectives (Philadelphia: University<strong>of</strong> Pennsylvania Press) 1994:6652Scoular, J.: ”Feminist <strong>Jurisprudence</strong>” 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 <strong>of</strong> <strong>the</strong> ladder, by <strong>the</strong> ladder and for <strong>the</strong>ladder.” Karts, K.: ”Women’s Constitution”, Duke Law Journal 1984:46155Gilligan’s work left unanswered <strong>the</strong> question <strong>of</strong> <strong>the</strong> cause <strong>of</strong> <strong>the</strong> difference between genderedmodes <strong>of</strong> reasoning. Catharine MacKinnon has questioned <strong>the</strong> au<strong>the</strong>nticity <strong>of</strong> femininevoice. The feminine – argues MacKinnon – is defined by a patriarchal culture: ”For women
50Agneš Kartag-Odricultural feminist approaches is that <strong>the</strong>y highlight <strong>the</strong> almost comprehensiveexclusion <strong>of</strong> women’s experiences from <strong>the</strong> development <strong>of</strong> law and test itsclaim <strong>of</strong> neutrality and objectivity. Never<strong>the</strong>less, what is prominent is that in anapparently more open and flexible system, women and <strong>the</strong>ir experiences arestill quite broadly excluded.4 Dierence Feminism – as <strong>the</strong> Dominant Approach withinFeminist Legal TheoryThe criticism <strong>of</strong> <strong>the</strong> main genres <strong>of</strong> political feminism has, as its consequence,<strong>the</strong> emergence <strong>of</strong> a somewhat dierent set <strong>of</strong> models for feminist legal<strong>the</strong>ory which can be grouped toge<strong>the</strong>r under <strong>the</strong> label ”dierence feminism”.Dierence feminism moves beyond standard rule <strong>of</strong> law values such as formalequality. Like radical feminism, it criticizes liberal feminism as being limited by itsessentially comparative standard (i.e. <strong>the</strong> strategy <strong>of</strong> ”assimilation <strong>of</strong> women to astandard set by and for me”). 56 Therefore, it has shifted towards a focus not only onlaw’s reflection <strong>of</strong> ’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 <strong>of</strong> <strong>the</strong> following<strong>the</strong>mes:1) The substance <strong>of</strong> law reflects a male point <strong>of</strong> view;2) The legal subject is constituted as male, while women will find<strong>the</strong>mselves excluded, and silenced; 573) The methods <strong>of</strong> law are gendered, to <strong>the</strong> disadvantage <strong>of</strong> women; 58to affirm difference, when difference means dominance, as it does with gender, means toaffirm <strong>the</strong> qualities and characteristic <strong>of</strong> 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 <strong>the</strong> Rights <strong>of</strong> Women” in: Knop, K. (ed.) Genderand Human Rights (Oxford University Press) 2004:2657ibid.58There is a link here with <strong>the</strong> influential work <strong>of</strong> <strong>the</strong> above-mentioned psychologist CarolGilligan, which identified two distinctive methods <strong>of</strong> analysis in moral reasoning. The firstone called ’an ethic <strong>of</strong> rights’ is very much law-like. By contrast, an ’ethic <strong>of</strong> care’ analysesmoral problems seeking consensual solutions. These two ethics are gendered: women tendto adopt <strong>the</strong> ethic <strong>of</strong> care, while men more <strong>of</strong>ten reason in terms <strong>of</strong> rights. Gilligan, C.: In aDifferent Voice: Psychological Theory and Women’s Development (Cambridge, MA: HarvardUniversity Press) 1982
New Perspectives in <strong>American</strong> Legal Theory 514) Like o<strong>the</strong>r feminists, dierence feminists insist that <strong>the</strong> key focus <strong>of</strong> legaljurisprudence should be, beside legal doctrine and law, how law is interpretedand enforced by legal actors;5) Dierence feminists have analyzed <strong>the</strong> substance <strong>of</strong> legal rules and <strong>the</strong>conceptual elements out <strong>of</strong> which those rules are constructed in terms <strong>of</strong> binarieslike <strong>the</strong> afore mentioned public/private distinction that supports <strong>the</strong> diiculty <strong>of</strong>getting domestic violence or sexual harassment taken seriously as legal issues. 59Consequently, <strong>the</strong> following conclusion can be drawn. As we have previouslypointed out, feminist legal <strong>the</strong>ory is not monolithic, and <strong>the</strong>re are dierent viewsamong dierent versions <strong>of</strong> feminism. Feminist legal <strong>the</strong>orists, despite <strong>the</strong>dierences in schools <strong>of</strong> thought, are united in <strong>the</strong> following basic beliefs.1) Most <strong>of</strong> <strong>the</strong>m have in common that <strong>the</strong>ir analysis focuses on what iscommonly referred to as ”revision” – a deconstruction <strong>of</strong> <strong>the</strong> existing principlesand structures <strong>of</strong> thought and a reconstruction <strong>of</strong> how <strong>the</strong>y might look ifconsidered from <strong>the</strong> perspective <strong>of</strong> women’s experience. 602) This point <strong>of</strong> agreement is <strong>the</strong> criticism <strong>of</strong> <strong>the</strong> public/private division.Related to <strong>the</strong> aforementioned dichotomies/distinction between reason andemotion, mind and body, objective–subjective, universal–particular, and public––private – <strong>the</strong> former element is associated with <strong>the</strong> male and considered superior.Feminists have examined <strong>the</strong>se categories and criticized <strong>the</strong> distinction as notbeing in accordance with women’s experience or attitude toward <strong>the</strong> world. 61 In59Binary division is a feature <strong>of</strong> western thought: male – female; subject – object; public –private; form –substance; mind – body; active – passive; reason – emotion. Feminists ingeneral have asserted that <strong>the</strong>se dichotomies are both hierarchized and sexualized: man isassociated with <strong>the</strong> first half <strong>of</strong> each pair, and that half has been valued over and above <strong>the</strong>o<strong>the</strong>r. However, strategic responses to this analysis differ as between radical and liberalfeminists. Radical feminists accept <strong>the</strong> sexualization <strong>of</strong> <strong>the</strong> divisions, but seek to reverse <strong>the</strong>valuation, arguing for <strong>the</strong> greater recognition <strong>of</strong> <strong>the</strong> emotive, <strong>the</strong> affective, and <strong>the</strong> femininein social practice. Liberals, on <strong>the</strong> o<strong>the</strong>r hand, <strong>of</strong>ten accept <strong>the</strong> hierarchical ordering, butseek to reverse <strong>the</strong> sexualization <strong>of</strong> <strong>the</strong> dichotomies, arguing that women are every bit ascapable <strong>of</strong> reason, as entitled to inhabit <strong>the</strong> public sphere, as capable <strong>of</strong> activity and intellectualpower and objectivity, as are men. Olsen, F.: ”Feminism and Critical Legal Theory” inInternational Journal <strong>of</strong> <strong>the</strong> Sociology <strong>of</strong> Law, 8/1990:19960Irons, J., C.: A Feminist Look at R. Dworkin’s Theory <strong>of</strong> Equality, Murdoch UniversityElectronic Journal <strong>of</strong> Law, Vol. 1 No. 1/1993:2, www.murdoch.edu.au/elaw/issues/v1n1/iorns113.html61Lloyd, G.: ”The Man <strong>of</strong> Reason: Male and Female” in: Western Philosophy (Minneapolis:University <strong>of</strong> Minnesota Press) 1984
52Agneš Kartag-Odrithis respect, feminist legal <strong>the</strong>ory considers that such issues are not separableei<strong>the</strong>r from each o<strong>the</strong>r or from political or moral issues. Therefore, it is importantto enable women with or without families to participate fully in <strong>the</strong> public sphere,at <strong>the</strong> same time improving <strong>the</strong>ir conditions and status in <strong>the</strong> private whileattempting simultaneously to modify and/or break down <strong>the</strong> barriers between<strong>the</strong> public and private. 62 It is also agreed that <strong>the</strong> private sphere should be mademore public, although to diering extents and in dierent ways, depending on <strong>the</strong>versions <strong>of</strong> feminism. 633) Feminist legal <strong>the</strong>orists are also united in <strong>the</strong>ir basic belief that societyis patriarchal; shaped by and dominated by men. Feminist jurisprudence, <strong>the</strong>n,provides an analysis and critique <strong>of</strong> women’s position in patriarchal society andexamines <strong>the</strong> nature and extent <strong>of</strong> women’s subordination. It explores <strong>the</strong> role<strong>of</strong> law in maintaining and perpetuating patriarchy. Feminist legal <strong>the</strong>oryexplores <strong>the</strong> <strong>the</strong>oretical issues about <strong>the</strong> interaction between law and gender,and applies <strong>the</strong> feminist analysis and perspective to concrete dierent areas <strong>of</strong>law, (for example: family and criminal law, human rights etc.) with a visiontoward eectuating law reforms.Having pointed out <strong>the</strong> main ideas that constituted feminist legal <strong>the</strong>ory,it is also necessary to overview/identify <strong>the</strong> main axes <strong>of</strong> dierentiations betweenfeminist legal <strong>the</strong>ory. Therefore, <strong>the</strong> main points <strong>of</strong> distinction anddierentiation between feminist <strong>the</strong>ories follow.The first has to do with <strong>the</strong> underlying <strong>the</strong>ories <strong>of</strong> sexual dierence. 64MacKinnon’s feminism has a specific view <strong>of</strong> sex dierences. The origins andmaintenance <strong>of</strong> sex dierence lie in domination grounded in <strong>the</strong> abuse <strong>of</strong> <strong>the</strong>sexual power and <strong>the</strong> exercise <strong>of</strong> <strong>the</strong> sexual dierence. This in turn implies that<strong>the</strong> kinds <strong>of</strong> issues that feminist legal <strong>the</strong>ory should focus on are ra<strong>the</strong>rdistinctive: pornography, sexual abuse, violence, and abortion.62In addition to arguing for conditions enabling participation in <strong>the</strong> public sphere, a minimumfeminist position is that a political <strong>the</strong>ory or jurisprudence must not define women functionallyor relegate <strong>the</strong>m to <strong>the</strong> private sphere <strong>of</strong> <strong>the</strong> family. Okin, S. M.: Justice, Gender and <strong>the</strong>Family (Basic) 198963Jaggar, A.: Feminist Politics and Human Nature, 1983:357. Also: On liberals’ sharp separationbetween <strong>the</strong> (female) domestic world and <strong>the</strong> (male) public world see Kymlicka, W.:Contemporary Political Philosophy, An Introduction (Oxford University Press), 2002:39064In <strong>the</strong> work <strong>of</strong> MacKinnon, one could find a structural, material <strong>the</strong>ory <strong>of</strong> women’soppression – analogous to <strong>the</strong> <strong>the</strong>ory <strong>of</strong> class difference to be found in Marxism. MacKinnon,C.: Feminism Unmodified, p.48
New Perspectives in <strong>American</strong> Legal Theory 53The o<strong>the</strong>r approach is more eclectic but is unified within <strong>the</strong> problem <strong>of</strong>identity that is structurally gendered. It has consequences for <strong>the</strong> status <strong>of</strong>women 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 <strong>of</strong> <strong>the</strong> feminine. 66The subsequent moment <strong>of</strong> dierentiation between feminist <strong>the</strong>ories has todo with <strong>the</strong> degree to which <strong>the</strong>y exhibit substantive or methodologicalcontinuities with o<strong>the</strong>r legal and social <strong>the</strong>ories. On one view, feminist legal<strong>the</strong>ory is not so much an autonomous <strong>the</strong>oretical or methodological approach,but ra<strong>the</strong>r a genre that places special issues on <strong>the</strong> agenda <strong>of</strong> legal <strong>the</strong>ory inorder to illuminate sex/gender issues. In this view ”law is seen both a forcewithin and a product <strong>of</strong> <strong>the</strong> social construction <strong>of</strong> reality”. 67 Therefore, feministlegal <strong>the</strong>ory is conceptualized as an interpretative approach, which seeks to getbeyond <strong>the</strong> surface level <strong>of</strong> legal doctrines – and which sees traditionaljurisprudence as ideological and as an apology for <strong>the</strong> status quo.Radical and cultural feminisms, on <strong>the</strong> o<strong>the</strong>r hand, insist more upon <strong>the</strong>autonomy <strong>of</strong> feminist legal <strong>the</strong>ory on <strong>the</strong> level <strong>of</strong> method.V Why is Feminist Legal Theory Important to Serbia?Regardless <strong>of</strong> how important and necessary it is for this region to incorporate<strong>the</strong> <strong>the</strong>oretical knowledge ”from <strong>the</strong> West” (including legal feminism), <strong>the</strong> factis that in <strong>the</strong> Serbian reality <strong>of</strong> <strong>the</strong> 1990’s, feminism <strong>of</strong>ten became an issue withnegative social connotation. It was also a pretext for <strong>the</strong> initiation <strong>of</strong> <strong>the</strong> ”newpatriarchy” and as its result ”anti-feminism became an act <strong>of</strong> patriotism.” 68The changes <strong>of</strong> <strong>the</strong> 90’s brought a drastic halt to many benefits, de legeequalities women enjoyed in <strong>the</strong> communist era. 69 In <strong>the</strong> war-tormented countries65Cornell, D.: The Imaginary Domain, 199566Lacey, N.: Feminist Legal Theory and <strong>the</strong> Rights <strong>of</strong> Women, p. 1867ibid. p. 1968Blagojević, M.: ”Misogyny: Invisible causes, painful consequences”, in: Blagojević. M. (ed.)Mapping <strong>the</strong> Misogyny in Serbia: Discourses and Practice (Belgrade: AŽIN) 2000:67469The enjoyment <strong>of</strong> great social, benefits, those concerning employment, health care etc. wasalso <strong>the</strong> characteristic feature <strong>of</strong> most <strong>of</strong> <strong>the</strong> countries in ECE Europe. Regulska, J.: GenderIntegration <strong>of</strong> Europe: ”New Boundaries <strong>of</strong> Exclusion”, in Jähnert, G. et al. (ed.): Gender in
54Agneš Kartag-Odri<strong>of</strong> <strong>the</strong> former Yugoslavia, negative trends toward women’s rights rocketed todramatic dimensions. Women not only lost <strong>the</strong>ir gains from <strong>the</strong> communist times,but were also additionally exposed to tremendous ideological and armed pressurefrom conservative, nationalistic and religious forces. There was also a strongrenewal <strong>of</strong> <strong>the</strong> influence <strong>of</strong> <strong>the</strong> church on political life, <strong>the</strong> weakening <strong>of</strong> <strong>the</strong> rule <strong>of</strong>law, explosion <strong>of</strong> massive unemployment, collapse <strong>of</strong> <strong>the</strong> welfare state, and growingviolence against all weaker members <strong>of</strong> <strong>the</strong> society – women, children, seniorcitizens and minorities <strong>of</strong> all kinds. The main feature <strong>of</strong> <strong>the</strong> society was retraditionalisation,burdened by deeply rooted patriarchal values. 70 Discrimination,marginalization, violence etc. might be seen as some kind <strong>of</strong> ”revenge” for <strong>the</strong>(forced) ideological equality that existed within <strong>the</strong> framework <strong>of</strong> communism.The new wave <strong>of</strong> anti-feminism was partly <strong>the</strong> result <strong>of</strong> failing to ensuretrue equality <strong>of</strong> men and women, both in public and in private spheres, through<strong>the</strong> institutionalization <strong>of</strong> equality. The diiculties <strong>of</strong> feminism spreading widelyoriginate also from <strong>the</strong> fact that women mostly focus <strong>the</strong>ir energy on individualand not on collective strategies <strong>of</strong> resistance – and <strong>the</strong>se two strategies are <strong>of</strong>tenmutually exclusive.The very idea <strong>of</strong> spreading/teaching/applying feminist <strong>the</strong>ories, as wehave seen in <strong>the</strong> previous parts, is <strong>the</strong> possibility to connect feminist <strong>the</strong>oriesand knowledge with practice and activism, to open new spirals <strong>of</strong> <strong>the</strong>oreticalcontemplations <strong>of</strong> feminist thought and understand its social context. At<strong>the</strong> turn <strong>of</strong> <strong>the</strong> 21 st century, it became obvious that <strong>the</strong> establishment <strong>of</strong>institutionalized equality, regulated by various legal provisions demonstratedseveral weaknesses. Some examples <strong>of</strong> <strong>the</strong>se weaknesses are:- <strong>the</strong> process <strong>of</strong> establishing gender equality is a slow one;- <strong>the</strong>re are forms <strong>of</strong> ”subtle discriminations” (alongside with anti-discriminatoryregulations);- <strong>the</strong> acceptance <strong>of</strong> women into certain fields or institutions regularlycorresponds within <strong>the</strong> diminishing <strong>of</strong> <strong>the</strong> significance <strong>of</strong> such institutions;- institutions <strong>the</strong>mselves are in <strong>the</strong> process <strong>of</strong> intense transformation,<strong>the</strong>refore 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 <strong>of</strong> Hull, The Ne<strong>the</strong>rlands) 2002: 293-32270...”Re-traditionalisation... prompts nostalgic feelings towards <strong>the</strong> traditional patriarchalorder, feelings, which have been growing stronger in <strong>the</strong> chaos <strong>of</strong> ’transition’.” Blagojević, M.:op. cit. p. 674
New Perspectives in <strong>American</strong> Legal Theory 55<strong>the</strong> problem <strong>of</strong> (gender) equality in its entirety, but in fact represents itsdecreasing segment. In transitional countries, such as Serbia, where <strong>the</strong>institutions have become more or less disintegrated and <strong>of</strong>ten emptyfacades, this problem is more obvious.Feminist scholars stress that <strong>the</strong> legal/constitutional order on genderequality and anti-discrimination will remain just a principled proclamation unless<strong>the</strong>re are certain accompanying mechanisms (such as committees, boards,councils, national action plans, statutes, ombudsmen etc.) within <strong>the</strong> systeminstitutions such as Parliament, government, and local administrations forachieving gender equality. They are <strong>the</strong> only ones able to contribute to eecting<strong>the</strong> equal rights <strong>of</strong> women and men. 71VI In Lieu <strong>of</strong> ConclusionOur intention was to focus on some possibilities <strong>of</strong> how to createattachments to feminist issues and legal feminism in order to ensure <strong>the</strong> visibility71After <strong>the</strong> change <strong>of</strong> 5 th October 2000 (i.e. <strong>the</strong> fall <strong>of</strong> <strong>the</strong> Milosevich regime) <strong>the</strong> followingbodies for gender equality were established: in 2002 in <strong>the</strong> Assembly <strong>of</strong> Vojvodina, followedby 2003 in <strong>the</strong> National Assembly <strong>of</strong> <strong>the</strong> Republic <strong>of</strong> Serbia, bodies <strong>of</strong> <strong>the</strong> executivegovernment (in 2002 <strong>the</strong> Provincial Secretariat for Labour, Employment and Gender Equality,in 2003 <strong>the</strong> Council for Gender Equality <strong>of</strong> <strong>the</strong> Government <strong>of</strong> <strong>the</strong> Republic <strong>of</strong> Serbia, in2004 <strong>the</strong> Provincial Institute for Gender Equality). Significant legislative changes occurredconcerning Family Law (adopted in 2005), Law on Labour (2005), as well as in <strong>the</strong> CriminalCode <strong>of</strong> 2003 (with <strong>the</strong> introduction <strong>of</strong> <strong>the</strong> Criminal Act <strong>of</strong> Domestic Violence in Article118a. The same criminal act remained in <strong>the</strong> newly adopted Criminal Code <strong>of</strong> 2005). In<strong>the</strong> field <strong>of</strong> monitoring <strong>the</strong> implementation <strong>of</strong> <strong>the</strong> policy <strong>of</strong> gender equality and equalopportunities for women and men, positive changes were made by <strong>the</strong> establishment <strong>of</strong>bodies for monitoring <strong>the</strong> achievement <strong>of</strong> women’s human rights, i.e. by <strong>the</strong> appointment<strong>of</strong> <strong>the</strong> Deputy Ombudsman for Gender Equality (Decision on <strong>the</strong> Provincial Ombudsman<strong>of</strong> 2002) and <strong>the</strong> adoption <strong>of</strong> <strong>the</strong> Law on <strong>the</strong> People’s Advocate (2005) by which, though notexplicitly stated, <strong>the</strong>re is a possibility for one <strong>of</strong> <strong>the</strong> deputies to deal with gender equality.Recognizing <strong>the</strong> necessity for <strong>the</strong> existence <strong>of</strong> a legal framework that will enable <strong>the</strong>consistent implementation <strong>of</strong> gender equality in all segments <strong>of</strong> public and private life, in2004 <strong>the</strong> Assembly <strong>of</strong> <strong>the</strong> Autonomous Province <strong>of</strong> Vojvodina adopted <strong>the</strong> Declaration andDecision on Gender Equality. These documents represent <strong>the</strong> first legal acts adopted on <strong>the</strong>territory <strong>of</strong> <strong>the</strong> State Union <strong>of</strong> Serbia and Montenegro explicitly regulating <strong>the</strong> issue <strong>of</strong> genderequality in fields within <strong>the</strong> competence <strong>of</strong> <strong>the</strong> province.
56Agneš Kartag-Odri<strong>of</strong> relevant feminist topics, which may result in new institutions, mechanismsand law reforms for <strong>the</strong> betterment <strong>of</strong> a woman’s position. It can be concludedthat <strong>the</strong>re is no doubt about <strong>the</strong> prospect that <strong>the</strong> ideas set by legal feminists (bymeans <strong>of</strong> suggesting, oering reforms, criticizing <strong>the</strong> 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 <strong>of</strong> <strong>the</strong> key feminist epistemologicalstrategies is conceptualization: nei<strong>the</strong>r knowledge nor abstract <strong>the</strong>ory existsoutside a spatial and chronological context. Co-opting Western <strong>the</strong>ories, basedon <strong>the</strong> experience <strong>of</strong> capitalist society, brought up both <strong>the</strong> possibility <strong>of</strong> improvedunderstanding and that <strong>of</strong> deception. First, <strong>the</strong>re might be a danger <strong>of</strong>identifying ourselves too easily and casually accepting explanations, conceptionsand definitions. Secondly, <strong>the</strong>re is also <strong>the</strong> danger <strong>of</strong> confusing a plausibleappearance with interpreting <strong>the</strong> dierent social phenomena, using inadequateexplanations. This is exactly why contextualization is essential for understandingdierences and various mechanisms that, even in modern ”global civilisation”,determine <strong>the</strong> precise and locally specific relation between men and women.Conversely, <strong>the</strong> import <strong>of</strong> <strong>the</strong>se ”foreign goods”, and ”travelling <strong>the</strong>ories”,might have multiple eects: <strong>the</strong>y foster <strong>the</strong> development <strong>of</strong> new identities, bringnew values and lead to an adaptation <strong>of</strong> dierent norms and behaviours. Whateects <strong>the</strong>se trans-boundary interactions and confrontation will produce in <strong>the</strong>long run remains to be seen. We can only hope that ”travelling <strong>the</strong>ories” willkeep aecting women’s organizing and result in an increased level <strong>of</strong> women’sactivism focusing on <strong>the</strong> gender equality policy issue. Will state institutions(including legislators) and academic curriculums concerning women/genderstudies become more gender- sensitive and involved? Alternatively, will <strong>the</strong>irsensitivity be short-lived and will patriarchy and re-traditionalization againreconstruct <strong>the</strong> hierarchical relation between men and women?As a final point, <strong>the</strong> following dilemma remains open: is <strong>the</strong>re a ”two waystreet” or a ”bridging discourse” between <strong>the</strong> ideas <strong>of</strong> <strong>American</strong> feminist legalthinking and <strong>the</strong> achievement in non-western, transitory societies focusing ongender dimension? By presenting <strong>the</strong> liberal, radical, cultural and dierence legalfeminisms, we could also question <strong>the</strong> extent to which development in <strong>the</strong>transitory states succeeds to put a reverse impact on <strong>the</strong> content and evolutionon western feminist legal <strong>the</strong>ories.
IIWhat is Law?1 Pr<strong>of</strong>. D.Sc. Duško VrbanFaculty <strong>of</strong> Law, Osijek, CroatiaEconomic Analysis <strong>of</strong> Law2 Pr<strong>of</strong>. Milorad Žižić, PhDDean <strong>of</strong> Faculty <strong>of</strong> Law, Priština, SerbiaBiorational and Social Determination <strong>of</strong> <strong>the</strong> Process<strong>of</strong> Material Origin <strong>of</strong> Law3 Pr<strong>of</strong>. Miroslav A. Živković, PhDPolice Academy, Belgrad, SerbiaContribution <strong>of</strong> <strong>American</strong> Legal Theory in Defining<strong>the</strong> Concept <strong>of</strong> Law4 Biljana Knežević, LL.MNovi Sad, SerbiaRonald Dworkin’s Natural Law5 Sanja Đurđić, LL.M, AssistantFaculty <strong>of</strong> Accommodation Business, Novi Sad, SerbiaLiberal Theory <strong>of</strong> Justice <strong>of</strong> John Rawls6 Pr<strong>of</strong>. Branko TucakovNovi SadJerome Frank’s Legal Realism7 Pr<strong>of</strong>. Miloš Marjanović, PhDFaculty <strong>of</strong> Law, Novi Sad, SerbiaRoscoe Pound’s Sociological <strong>Jurisprudence</strong> from<strong>the</strong> European Continental Perspective
1 Pr<strong>of</strong>. D.Sc. Duško VrbanFaculty <strong>of</strong> Law, Osijek, CroatiaECONOMIC ANALYSIS OF LAWAbstract: Economic analysis <strong>of</strong> law developed within post-war ChicagoSchool <strong>of</strong> Economists poses <strong>the</strong> fundamental challenge no only to <strong>the</strong> traditional<strong>American</strong> jurisprudence, but to <strong>the</strong> customary European concept <strong>of</strong> legal systemand its autonomy as well. Although it can be seen as a continuation <strong>of</strong> <strong>the</strong>utilitarian search for a better and more efficient society, from Bentham onwards,its roots could be discovered in philosophical pragmatism and in <strong>the</strong> concept <strong>of</strong>”indeterminacy” common to legal realists from <strong>the</strong> mid-20 th century. Its aims aretw<strong>of</strong>old: firstly to propose a new kind <strong>of</strong> legal technique based on <strong>the</strong> concept <strong>of</strong>efficiency and maximization <strong>of</strong> wealth, and secondly, to <strong>of</strong>fer a new and freshexplanatory <strong>the</strong>ory <strong>of</strong> optimal legal, especially judicial behavior. It is argued that,essentially, this approach fails to take into consideration <strong>the</strong> non-economicfactors such as altruism, common good and, particularly, <strong>the</strong> principle <strong>of</strong>supremacy <strong>of</strong> individual rights and <strong>of</strong> <strong>the</strong> rule <strong>of</strong> law. In <strong>the</strong> European context,its straight application would be discordant with <strong>the</strong> predominance <strong>of</strong> statutelaw and <strong>the</strong> position <strong>of</strong> judiciary which is subordinated to <strong>the</strong> recognized sources<strong>of</strong> law outside <strong>of</strong> it.Key words: economic analysis <strong>of</strong> law, indeterminacy, individual rights,Chicago School <strong>of</strong> LawBefore we address <strong>the</strong> main <strong>the</strong>me <strong>of</strong> this paper – <strong>the</strong> economic analysis<strong>of</strong> law in <strong>American</strong> jurisprudence, it would be useful to point out some <strong>of</strong> <strong>the</strong>characteristics <strong>of</strong> <strong>the</strong> legal thought on both sides <strong>of</strong> <strong>the</strong> Atlantic, and <strong>the</strong>difficulties and perspective, arising in this context <strong>of</strong> <strong>the</strong> meeting <strong>of</strong> two legalcultures.It should be mentioned that in spite <strong>of</strong> <strong>the</strong> still widespread opinion about<strong>the</strong> incongruence <strong>of</strong> <strong>the</strong> two legal systems, Anglo-<strong>American</strong> Common law andEuropean continental legal tradition (which is based on <strong>the</strong> Roman law and on<strong>the</strong> supremacy <strong>of</strong> legislature as <strong>the</strong> source), today <strong>the</strong>re is a growing realization
60Duško Vrbanthat <strong>the</strong> differences between <strong>the</strong>se two systems are ra<strong>the</strong>r relative. In fact, <strong>the</strong>lawyers on <strong>the</strong> Continent are becoming more and more aware <strong>of</strong> <strong>the</strong> need for<strong>the</strong> judges to create law and <strong>of</strong> <strong>the</strong> advantages that this brings. This change isobvious in <strong>the</strong> problem area <strong>of</strong> constitutional administration <strong>of</strong> justice, in <strong>the</strong>protection <strong>of</strong> human rights and in some especially dynamic areas such ascommercial law and international administration <strong>of</strong> justice. In connection withthis, <strong>the</strong> former (ra<strong>the</strong>r naïve) belief in <strong>the</strong> omnipotence and ”rationality” <strong>of</strong> <strong>the</strong>lawgiver, who could issue general acts that would change <strong>the</strong> world and make<strong>the</strong> legal system just and transparent, as it was believed by <strong>the</strong> composers <strong>of</strong> <strong>the</strong>French Napoleon’s Code (Civil Code, 1804) is gradually fading away. Today itis realized that even <strong>the</strong> best legislative technique has its faults and that it alwayslags behind <strong>the</strong> real life, which can never be completely envisaged and bound by<strong>the</strong> chains <strong>of</strong> paragraphs <strong>of</strong> civil and o<strong>the</strong>r codes. Already <strong>the</strong> respectableSavigny in <strong>the</strong> early 19 th century in Germany warned against <strong>the</strong> dangers thataccompany <strong>the</strong> craze for complex codification, which is not preceded by properpreparations, thorough study <strong>of</strong> particular institutes and an insight into <strong>the</strong>case-law, i.e. into national culture.We could ironically observe that in <strong>the</strong> same way as once <strong>the</strong> Europeanliterature and science, with great curiosity but also with a sense <strong>of</strong> domination,were discovering new and unknown worlds, including America (Rousseau’snoble savage), <strong>the</strong> contemporary <strong>American</strong> lawyer, could point at some dogmas<strong>of</strong> European jurisprudence as outdated and unsuitable for <strong>the</strong> dynamic era <strong>of</strong>globalization. One <strong>of</strong> <strong>the</strong> lessons that could be acquired from <strong>the</strong> <strong>American</strong> <strong>the</strong>oryand practice is that about <strong>the</strong> usefulness <strong>of</strong> judges’ discretion in <strong>the</strong> creationand implementation <strong>of</strong> law, as well as <strong>the</strong> testing <strong>of</strong> <strong>the</strong> efficiency <strong>of</strong> legalregulation. Efficiency or, respectively, usefulness <strong>of</strong> legal decisions are questionablenot only in <strong>the</strong> criminal law but mostly in determining compensations fordamages and in considering just solutions in commercial transactions. Preciselythis seems to be <strong>the</strong> area in which <strong>the</strong> economic analysis <strong>of</strong> law provides itsmost interesting contribution.Closer contacts <strong>of</strong> law with <strong>the</strong> economic way <strong>of</strong> thinking started alreadyin <strong>the</strong> 18 th century, when Jeremy Bentham and later John S. Mill, represent <strong>the</strong><strong>the</strong>sis about <strong>the</strong> greatest happiness <strong>of</strong> <strong>the</strong> largest number <strong>of</strong> people as <strong>the</strong> aim<strong>of</strong> law and politics. The issue here was primarily a kind <strong>of</strong> moral (practical)philosophy that especially addressed <strong>the</strong> purpose <strong>of</strong> punishing. The economicanalysis <strong>of</strong> law, which wants to replace <strong>the</strong> traditional legal dogmatism with anew way <strong>of</strong> thinking, represents a slightly different point <strong>of</strong> view. Never<strong>the</strong>less,
Economic Analysis <strong>of</strong> Law 61according to some observations this direction, too, represents only a sequence<strong>of</strong> <strong>the</strong> classic English utilitarianism. Utilitarianism is not a formal analysis <strong>of</strong>law – which is, e.g., found in Austin – but a prescriptive model used as <strong>the</strong>instruction for solving social problems and stimulating progress. Contemporaryeconomism in <strong>the</strong> law also follows similar motives; starting from <strong>the</strong> enlargement<strong>of</strong> social wealth, it suggests ways for <strong>the</strong> maximization <strong>of</strong> pr<strong>of</strong>it or compensationfor damage that would take care about costs, reducing <strong>the</strong>m to <strong>the</strong> smallestpossible measure. Here, ethical dimension <strong>of</strong> law is not visible, or it is implicitlyincluded in <strong>the</strong> premises <strong>of</strong> liberalism (<strong>the</strong> greater <strong>the</strong> freedom <strong>of</strong> trade andentrepreneurship, <strong>the</strong> greater <strong>the</strong> social wealth).In America, law and economy meet more intensively especially in <strong>the</strong>1960’s and 1970’s, when in <strong>the</strong> framework <strong>of</strong> <strong>the</strong> Department <strong>of</strong> Economics at<strong>the</strong> University in Chicago, <strong>the</strong> so-called ”Chicago School” was founded. Inaddition to developing <strong>the</strong> economic model <strong>of</strong> efficiency, <strong>the</strong> works <strong>of</strong> GaryBecker, Ronald Coase, Guido Calabresi, Henry Manne and Richard Posner alsodeal with law, indicating <strong>the</strong> ignored rationality <strong>of</strong> <strong>the</strong> tradition <strong>of</strong> judge-madelaw (Common Law), whereby <strong>the</strong>y also wanted to emphasize <strong>the</strong> aversion (presentalready in <strong>the</strong> works <strong>of</strong> Holmes and legal realists) to legalism (Statute Law) andnormative formalism (European jurisprudence). Among authors who write inthis spirit, especially distinguished is <strong>the</strong> figure <strong>of</strong> Richard Posner, a judge and ateacher, who is most meritorious for <strong>the</strong> promotion <strong>of</strong> <strong>the</strong> ideas about <strong>the</strong>economic analysis <strong>of</strong> law.It should be noted that <strong>the</strong>re are, in fact, two Chicago Schools: one, whichdeveloped already before <strong>the</strong> World War II, and <strong>the</strong> o<strong>the</strong>r, which developedafter World War II and which pays more attention to methodological questions.Members <strong>of</strong> <strong>the</strong> first school (Douglas, Knight, Schultz, Viner), have tried torevitalize <strong>the</strong> economic thought by bringing back trust into <strong>the</strong> power <strong>of</strong> marketpowers, as opposed to state interventionism that had been introduced through<strong>the</strong> New Deal reforms. In this sense, <strong>the</strong>se <strong>the</strong>ories were consistent with <strong>the</strong>assumptions <strong>of</strong> Adam Smith from 1776 (<strong>the</strong> invisible hand), as well as with <strong>the</strong>ideas <strong>of</strong> English liberal economists from <strong>the</strong> Viennese School, Hayek and vonMises, who opposed <strong>the</strong> Keynesian logic <strong>of</strong> inciting demands. In that perspective,especially distinguished is <strong>the</strong> contribution <strong>of</strong> Milton Friedman, who after <strong>the</strong>war became <strong>the</strong> coryphaeus <strong>of</strong> neo-liberalism and <strong>the</strong> most translated <strong>American</strong>economic writer.The o<strong>the</strong>r school, <strong>the</strong> postwar school <strong>of</strong> Chicago economists, has paidmuch attention to methodological issues <strong>of</strong> maximizing <strong>the</strong> usefulness and
62Duško Vrbanreducing costs as <strong>the</strong> efficiency <strong>of</strong> operations in <strong>the</strong> field <strong>of</strong> production, exchange<strong>of</strong> goods and services, and especially in <strong>the</strong> compensation <strong>of</strong> losses (Kaldor-Hicksefficiency). The starting point <strong>of</strong> <strong>the</strong>se models is <strong>the</strong> so called ”Paret’s optimum”,according to which <strong>the</strong>re is a balance in <strong>the</strong> distribution <strong>of</strong> goods if any sort<strong>of</strong> change would put one <strong>of</strong> <strong>the</strong> protagonists into inferior position. Chicago<strong>the</strong>oreticians have also taken into consideration <strong>the</strong> legally induced changes in<strong>the</strong> economic position <strong>of</strong> <strong>the</strong> parties, for example in determining compensationsfor damages, and <strong>the</strong>y have tried to set up a rational rule for such cases (Coase’s<strong>the</strong>orem). In this connection, <strong>the</strong>re was <strong>the</strong> issue <strong>of</strong> justification <strong>of</strong> a priori legalregulations for such cases. As it is known, legal constructions about establishingresponsibility most <strong>of</strong>ten range from <strong>the</strong> principle <strong>of</strong> blame (in most cases it isnegligence), presumed culpability (<strong>the</strong> burden <strong>of</strong> pro<strong>of</strong> is on <strong>the</strong> accused), toobjective liability, when <strong>the</strong> guilt does not need to be proven (strict liability).Thus <strong>the</strong> conclusion was reached that, in principle, market mechanisms <strong>of</strong>compensation are more efficient than <strong>the</strong> legal regulations, that passing judgmentsin <strong>the</strong> tradition <strong>of</strong> Common Law is more efficient than legal regulations <strong>of</strong>responsibility, and that, according to this, courts should bear in mind that <strong>the</strong>risk should be, at least partially, put to <strong>the</strong> party that can reduce or avoid damage,paying more attention to costs.An important novelty in this reasoning is that it takes account <strong>of</strong> operatingcosts (transaction costs). These are <strong>the</strong> costs that result from <strong>the</strong> aspiration tobuy or sell something; in addition to seeking information, <strong>the</strong> parties need toreach an agreement (ex ante costs) and <strong>the</strong>n <strong>the</strong>y must make efforts to fulfillcontractual obligations (ex post costs). It should be mentioned that this idea doesnot come from <strong>the</strong> Chicago School, but is <strong>the</strong> result <strong>of</strong> an older contribution <strong>of</strong>neo-institutionalists (Commons, Coase, Barnard), who have indicated <strong>the</strong> limitedrationality <strong>of</strong> economic agencies, which are <strong>of</strong>ten exposed to unexpected costs,already because <strong>of</strong> <strong>the</strong> conflict <strong>of</strong> interest among <strong>the</strong>m.In addition to compensation for damages, some economists were alsopreoccupied with <strong>the</strong> economic aspect <strong>of</strong> non-market behaviors. So Gary Beckertried to calculate <strong>the</strong> social cost <strong>of</strong> crime and point at economic motives inmarriages and divorces, bringing up children, dividing household chores, andhe even analyzed alcoholism and drug addiction. This expansion <strong>of</strong> <strong>the</strong> economicapproach on spheres outside <strong>of</strong> traditional economy, was described by someauthors as ”economic imperialism”, which indirectly testifies about <strong>the</strong> spirit <strong>of</strong><strong>American</strong> society, reflected already in <strong>the</strong> philosophy <strong>of</strong> pragmatism. However,some o<strong>the</strong>r authors have taken <strong>the</strong> opposite direction, considering economy
Economic Analysis <strong>of</strong> Law 63through institutions such as ownership and right (Alchian, Demsetz). This hasinitiated <strong>the</strong> affirmation <strong>of</strong> neo-institutionalism in economy, which confronts<strong>the</strong> formalism and individualism <strong>of</strong> <strong>the</strong> neoclassicists.In <strong>the</strong> 1970’s, <strong>the</strong> Chicago School <strong>of</strong> Law and Economy won a respectableposition, not only among economists but also in <strong>the</strong> circles <strong>of</strong> lawyers, boththose with academic and practical orientation. Many have put great hopes intothis new approach, in <strong>the</strong> conviction that it opens new perspectives, both in <strong>the</strong><strong>the</strong>ory <strong>of</strong> law and in <strong>the</strong> legal practical reasoning, which finally had to be put onsound and rational foundations. Some specialized periodicals have beenfounded in this domain, such as <strong>the</strong> Journal <strong>of</strong> Law and Economics and Journal<strong>of</strong> Research in Law and Economics, and <strong>the</strong> protagonists <strong>of</strong> this orientation havegradually been given more noticed positions in o<strong>the</strong>r renowned publications aswell. The rapidly grown popularity <strong>of</strong> <strong>the</strong> economic approach to law, even if ithas contributed to <strong>the</strong> abandoning <strong>of</strong> <strong>the</strong> older normativism <strong>of</strong> Langdell’s type,still has not completely expelled o<strong>the</strong>r courses, such as <strong>the</strong> already mentionedneo-institutional school and that which is closer to <strong>the</strong> domain <strong>of</strong> sociologicalapproach – critical legal studies.In an attempt to summarize this exposition, we could ask ourselves whichare <strong>the</strong> key starting points and ideas <strong>of</strong> <strong>the</strong> Chicago School <strong>of</strong> Law and Economy,that have contributed to its exceptional popularity across <strong>the</strong> Atlantic? This topicwould require a more detailed analysis, which should take into consideration<strong>the</strong> specific features <strong>of</strong> <strong>American</strong> law, as well as <strong>the</strong> differences between <strong>the</strong>European and <strong>the</strong> <strong>American</strong> way <strong>of</strong> thinking. As a result <strong>of</strong> a summary view <strong>of</strong><strong>the</strong> important characteristics <strong>of</strong> this approach, it can be primarily concludedthat this school, as well as some o<strong>the</strong>r courses, that deal with law and economy,is based on a certain dualism; on <strong>the</strong> one hand, it aspires to explain <strong>the</strong> senseand operations <strong>of</strong> legal institutions, and on <strong>the</strong> o<strong>the</strong>r hand, it establishes itself asa prescriptive method that develops into a specific legal technique. We can thusspeak about two dimensions <strong>of</strong> <strong>the</strong> economic analyses <strong>of</strong> law: about <strong>the</strong> positivedimension, i.e. that which describes and envisages, and about <strong>the</strong> normativedimension, which prescribes.The emphasis <strong>of</strong> this <strong>the</strong>ory is certainly on <strong>the</strong> concept <strong>of</strong> efficiency,which is understood as maximizing <strong>the</strong> wealth as measured in money. With thisas well as with o<strong>the</strong>r instruments, such as <strong>the</strong> marginal usefulness, <strong>the</strong> Chicagoauthors continue <strong>the</strong> neo-classical analysis, including in it <strong>the</strong> analysis <strong>of</strong>operating and contracting costs. This way <strong>of</strong> thinking, which holds that <strong>the</strong> aim<strong>of</strong> law is implicitly consisted in its contribution to <strong>the</strong> enlargement <strong>of</strong> wealth, is
64Duško Vrbanoutlined highly individualistically and abstractly, as is <strong>the</strong> case with o<strong>the</strong>r models<strong>of</strong> homo oeconomicus. In this way, <strong>the</strong> law is considered instrumentally, as one<strong>of</strong> <strong>the</strong> institutional systems <strong>of</strong> <strong>the</strong> society, which is in <strong>the</strong> same competitivearena as <strong>the</strong> market, contracting and choosing political preferences, i.e. it isconsidered as one <strong>of</strong> <strong>the</strong> mechanisms that should serve for <strong>the</strong> settlement <strong>of</strong>disputes with real or hypo<strong>the</strong>tical market value.In spite <strong>of</strong> <strong>the</strong> illusion <strong>of</strong> rationality, such approach also leads to hardlyacceptable conclusions, which can be shown on two examples quoted by Posneras <strong>the</strong> illustration <strong>of</strong> <strong>the</strong> efficient view <strong>of</strong> <strong>the</strong> law. Thus, in <strong>the</strong> absence <strong>of</strong> legalobligation to rescue a drowning swimmer he sees <strong>the</strong> rational approach, becauseif it were different, good swimmers would avoid rescuing o<strong>the</strong>rs if it didn’t bring<strong>the</strong>m any material gain. Since <strong>the</strong>y – in spite <strong>of</strong> all this – still continue savingpeople from drowning, <strong>the</strong>y receive rewards in <strong>the</strong> form <strong>of</strong> money as well aspublic acknowledgment for <strong>the</strong>ir altruism. The second example is even moredrastic. Posner was, namely, working hard trying to organize <strong>the</strong> adoption <strong>of</strong>children like an auction, following <strong>the</strong> principle <strong>of</strong> supply and demand, wherebyvarious positive effects would be achieved – although he himself admits that thisis hardly conceivable. In this way, <strong>the</strong> adopters could more easily get a desiredchild, and <strong>the</strong> biological parents would receive a compensation, which wouldbring <strong>the</strong>m a certain gain, and <strong>the</strong> children <strong>the</strong>mselves would come into <strong>the</strong>hands <strong>of</strong> <strong>the</strong> best bidders, i.e. into <strong>the</strong> hands <strong>of</strong> <strong>the</strong> adoptive parents, who wouldtake optimal care about <strong>the</strong>m.Many criticisms against <strong>the</strong> economic analysis <strong>of</strong> law comment on thisand on o<strong>the</strong>r insufficiencies <strong>of</strong> this approach. Maybe <strong>the</strong> most adequate critiquehas been consisted in <strong>the</strong> observation that rational actors, as conceived by legaleconomists, have little in common with real people. It is only a newer variant <strong>of</strong>homo oeconomicus as an abstract product <strong>of</strong> economic imagination. It shouldalso be added that it is nei<strong>the</strong>r realistic nor morally acceptable to evaluatedamages, and especially <strong>the</strong> human life, only in money, as this is being done by<strong>the</strong> economic analysis.The principal criticisms <strong>of</strong> <strong>the</strong> economic analyses <strong>of</strong> law, especially in <strong>the</strong>variant <strong>of</strong> <strong>the</strong> Chicago School, could be summarized in <strong>the</strong> following four items:1/ Except for efficiency measured in money, legal order also aspires to o<strong>the</strong>rvalues, among which a distinguished place belongs to fairness; 2/ In <strong>the</strong> tradition<strong>of</strong> <strong>the</strong> European and Western legal scientific paradigm lies <strong>the</strong> imperative <strong>of</strong>observing <strong>the</strong> law along with <strong>the</strong> limitation <strong>of</strong> powers, which is expressed by<strong>the</strong> syntagm ”law-based (legal) state” or ”rule <strong>of</strong> law”. In that perspective, <strong>the</strong>
Economic Analysis <strong>of</strong> Law 65administration <strong>of</strong> justice and legal decision-making in general are limitedby normative boundaries, which guarantees legal security and execution <strong>of</strong>democratically chosen goals <strong>of</strong> legislature. Introduction <strong>of</strong> o<strong>the</strong>r criteria, suchas for example efficiency, <strong>the</strong>se normative premises can be put in question. 3/ Justas a refined economic analysis shows, economic factors are not independentfrom <strong>the</strong> social and especially not from <strong>the</strong> legal context. Namely, <strong>the</strong> costs andprices are directly dependent on <strong>the</strong> limitations <strong>of</strong> ownership and on o<strong>the</strong>rinstitutional limitations. 4/ For most people, abstract augmentation <strong>of</strong> wealthor, respectively, quantitative relations <strong>of</strong> distribution, have a lesser importancethan <strong>the</strong> access to <strong>the</strong> goods itself. In o<strong>the</strong>r words, for <strong>the</strong> majority <strong>of</strong> socialprotagonists <strong>the</strong> question how to distribute social goods, both public and private,is much more important than <strong>the</strong> aspiration towards <strong>the</strong> mere enlargement <strong>of</strong>benefits as measured with money.It would <strong>the</strong>refore be more adequate to speak about <strong>the</strong> interdependenceor <strong>the</strong> interaction <strong>of</strong> <strong>the</strong> socially-cultural context and economic calculations,just as this is don by <strong>the</strong> institutional and neo-institutional school. Never<strong>the</strong>less,some merits <strong>of</strong> <strong>the</strong> Chicago School can not be denied; it has contributed to abetter insight into <strong>the</strong> rationality <strong>of</strong> both legislature and court decision-makingin those fields <strong>of</strong> law that are <strong>the</strong> closest to economy. These are disputes aboutdamages (tort law), protection <strong>of</strong> property rights, and <strong>the</strong> Law <strong>of</strong> Obligationsand Commercial Law.LITERATURE1. J. D. Hanson / Melissa R. Hart: Law and Economics, in: Dennis Patterson(ed.): A companion to Philosophy <strong>of</strong> Law and Legal Theory, Malden (MA)etc., 2003, 311-3312. J. W. Harris: Utilitarianism and <strong>the</strong> Economic Analysis <strong>of</strong> 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 <strong>of</strong> Western Legal Theory, Oxford, 20034. Kregar, J. / Šimonović I.: Teorijski temelji ekonomske analize prava (TheoreticalFoundations <strong>of</strong> <strong>the</strong> Economic Analysis <strong>of</strong> Law), Zbornik Pravnog fakulteta uZagrebu (Collected Papers <strong>of</strong> <strong>the</strong> Faculty <strong>of</strong> 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 <strong>the</strong> Law: From Posner toPost-Modernism, Princeton (N. J.), 19977. R. A. Posner: Economic Analysis <strong>of</strong> Law, Boston /Toronto/London, 19928. W. E. Scheuerman: Die stille Revolution im amerikanischen Recht (SilentRevolution in <strong>American</strong> Law, in: H. Brunkhorst /P. Niesen (ed.): Das Rechtder Republik (The Law <strong>of</strong> <strong>the</strong> Republic), Suhrkamp, 1999, 209-231.
2 Pr<strong>of</strong>. Milorad Žižić, PhDDean <strong>of</strong> Faculty <strong>of</strong> Law, Priština 1BIORATIONAL AND SOCIAL DETERMINATIONOF THE PROCESS OF MATERIAL ORIGIN OF LAWAbstract: The author is trying, in a certain degree, to recognize <strong>the</strong>problem <strong>of</strong> material au<strong>the</strong>nticity <strong>of</strong> law through an integral projection, byfacing its biorational and social guidelines. He points out <strong>the</strong> possibility <strong>of</strong> tripleform <strong>of</strong> material au<strong>the</strong>nticity and essence <strong>of</strong> law.He also stresses that a problem <strong>of</strong> <strong>the</strong> essence <strong>of</strong> law, in a certain degree,can be approached in a threefold way, i.e. he emphasizes a triplelayer essence <strong>of</strong>law, pointing to its normative, social and value aspect.Key words: sources <strong>of</strong> law, definition <strong>of</strong> law, normative, social and valueaspects <strong>of</strong> law, <strong>the</strong> essence <strong>of</strong> lawThe process <strong>of</strong> material origin <strong>of</strong> law 2 , which takes or may take threeaspects or directions, in our view, originates or may originate from a particular1Pr<strong>of</strong>. Dr Milorad Žižić is a full-time pr<strong>of</strong>essor at Law Faculty <strong>of</strong> Priština Universitycurrently situated in Kosovska Mitrovica. Pr<strong>of</strong>. Dr Milorad Žižić is <strong>the</strong> dean <strong>of</strong> this faculty.2Our perception <strong>of</strong> material origin <strong>of</strong> law in <strong>the</strong> first aspect i.e. law as social production(reality), desirous production is partly opposite to dogmatic and normative <strong>the</strong>ory <strong>of</strong> law’cleansed’ from social and o<strong>the</strong>r factors. Partly it is similar to sociology and legal approaches(<strong>of</strong> Digi, Spasojevic, and o<strong>the</strong>rs). Opposition to dogmatic and normative approaches exists,in our opinion, due to extreme exclusion <strong>of</strong> such approaches when it comes to sociological,psychological and o<strong>the</strong>r factors, which we think well determine origin and essence <strong>of</strong> law.Similarity to such approaches lies in <strong>the</strong> fact that we, after all, point to <strong>the</strong> normative aspect<strong>of</strong> law, but unlike <strong>the</strong>m, as an aspect <strong>of</strong> threefold essence <strong>of</strong> law, which is incompletewithout social and valuable dimension. Similarity <strong>of</strong> our approach to sociology approachesto law, as well as legal sociology, legal economy, is partly present.The fact that <strong>the</strong> basis <strong>of</strong>origin <strong>of</strong> this aspect <strong>of</strong> law originates <strong>the</strong> process <strong>of</strong> its creation is determined out <strong>of</strong> socialreality (production). The difference from previous approaches lies <strong>the</strong> 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 <strong>of</strong> differentmatters stemmed from <strong>the</strong> state <strong>of</strong> need <strong>of</strong> <strong>the</strong> given time and space, conditionedby ei<strong>the</strong>r specific or general development <strong>of</strong> <strong>the</strong> society and justified by determinedideas (<strong>the</strong> reflection <strong>of</strong> objective development <strong>of</strong> <strong>the</strong> society).The first aspect <strong>of</strong> <strong>the</strong> process <strong>of</strong> material origin <strong>of</strong> law is evolutionaryadaptable to social reality and its need for legal regulation <strong>of</strong> social relations. Itcreates a norm, which is being (more or less) realized through <strong>the</strong> technicalutterance and form which we call a norm, i.e. positive law. Desirous notions onlegal regulation which are expressed through legal and technical form <strong>of</strong> <strong>the</strong>positiv norm, are desirous aspirations <strong>of</strong> <strong>the</strong> creator <strong>of</strong> <strong>the</strong> positive norm,positive law, i.e <strong>the</strong> reality which expects such regulation.This positive law percieved through this aspect <strong>of</strong> <strong>the</strong> process <strong>of</strong> materialorigin <strong>of</strong> 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 interaction<strong>of</strong> social relations and structure determines <strong>the</strong> need for adequte legal regulation<strong>of</strong> numerous and various social realtions. Instinct <strong>of</strong> self-preservation, uniting,identity, existence, orientation, power, existential security, economic pr<strong>of</strong>it, and soon, is expressed through <strong>the</strong> economic base and superstructure, where satisfaction<strong>of</strong> wishes and interests is being fulfilled.Satisfaction <strong>of</strong> wishes and interests requires <strong>the</strong> need for adequate protection<strong>of</strong> regulation, especially legal regulation. Clashes <strong>of</strong> interests and polarization insocial production (reality) results in various conflicts, which determine <strong>the</strong> needfor existence <strong>of</strong> organized force and adequate machinery for implementation <strong>of</strong>that force aimed at resolving conflicts and protection <strong>of</strong> interests. Dependingon <strong>the</strong> power forces and sequence <strong>of</strong> social assumptions and events which effect<strong>the</strong> building and organizing <strong>of</strong> <strong>the</strong> machinery for implementation <strong>of</strong> organizeddetermined interaction, normative and valuable aspect <strong>of</strong> essence <strong>of</strong> law, and we discuss itin this work. However, what is, after all, different from o<strong>the</strong>r approaches to law in ourapproach is <strong>the</strong> given model, coceptual construction, which, out <strong>of</strong> biorational and socialconflict and interaction, syn<strong>the</strong>sizes and absorbs or leaves open possibilies <strong>of</strong> absorbing <strong>of</strong>numerous causes or factors with different role and significance, and which are seen as’sources’ <strong>of</strong> law by many authors. Such is <strong>the</strong> case with our approach to material origin <strong>of</strong>law, as well as <strong>the</strong> second and <strong>the</strong> third aspect <strong>of</strong> origin <strong>of</strong> law. Here we emphasize that under<strong>the</strong> term ’origin <strong>of</strong> law’ we exclusively mean material origin <strong>of</strong> law. Formal origin <strong>of</strong> law(general legal act) is not <strong>the</strong> subject <strong>of</strong> this work.
Biorational and Social Determination <strong>of</strong> <strong>the</strong> Process... 69force (which should be <strong>the</strong> most intense in such social reality) will depend on<strong>the</strong> building <strong>of</strong> legal regulation <strong>of</strong> social relations.Thus determined social reality causes desirous production <strong>of</strong> legalregulation, which, within <strong>the</strong> intelllectual and creative process <strong>of</strong> origin <strong>of</strong> law,is altoge<strong>the</strong>r created and designed, and technically realized in <strong>the</strong> positive norm.When we go from our basis <strong>of</strong> material origin <strong>of</strong> law filled with biorationaland social contents through this aspect and finally come to <strong>the</strong> positive norm(<strong>of</strong> <strong>the</strong> positive law), in our opinion, <strong>the</strong> first phase <strong>of</strong> <strong>the</strong> <strong>the</strong> origin <strong>of</strong> law,well-known as <strong>the</strong> material origin <strong>of</strong> law <strong>of</strong> <strong>the</strong> first aspect, is finished. From <strong>the</strong>moment <strong>the</strong> legal act which contains <strong>the</strong> legal norm comes into effect (if it isgenaral legal act, i.e. general legal norm), <strong>the</strong> new phase begins – <strong>the</strong> phase <strong>of</strong>formal and legal origin <strong>of</strong> <strong>the</strong> civil law system. We will not discuss this sort <strong>of</strong>origin as <strong>the</strong> superstructure upon <strong>the</strong> above mentioned material law.One <strong>of</strong> <strong>the</strong> important features <strong>of</strong> <strong>the</strong> first aspect <strong>of</strong> <strong>the</strong> process <strong>of</strong> materialorigin <strong>of</strong> law, in our view, is <strong>the</strong> existence <strong>of</strong> 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 <strong>the</strong> o<strong>the</strong>r hand.Since this aspect <strong>of</strong> origin <strong>of</strong> law originates positive law <strong>the</strong> way wedefined it, analytical and syn<strong>the</strong>tic focus is being aimed at <strong>the</strong> above mentionedsocial reality (production), at its significant and special features, i.e. at <strong>the</strong>collective and various relations within it, which are <strong>the</strong> most importantdeterminators <strong>of</strong> <strong>the</strong> given reality. Therefore, our starting point and idea,generated as <strong>the</strong> product <strong>of</strong> facing <strong>the</strong> biorational and social determinators, isbeing dirtected through <strong>the</strong> first aspect <strong>of</strong> <strong>the</strong> origin <strong>of</strong> law i.e. through perception,creation in accordance with <strong>the</strong> given reality, on one hand, and throughcontribution <strong>of</strong> <strong>the</strong> important modification <strong>of</strong> <strong>the</strong> social reality, on <strong>the</strong> o<strong>the</strong>rhand. A special sociology dimension <strong>of</strong> law is reflected upon it.We are going to discuss some segments <strong>of</strong> such reality relevent to thisaspect <strong>of</strong> law later.The second aspect <strong>of</strong> <strong>the</strong> process <strong>of</strong> origin <strong>of</strong> law, in our view, followsano<strong>the</strong>r desirous evolutionary directions (unlike <strong>the</strong> first aspect), directions <strong>of</strong>rebellion (<strong>the</strong> state <strong>of</strong> not being adaptable to <strong>the</strong> given reality (production) andcreation <strong>of</strong> 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, <strong>the</strong>n thisaspect <strong>of</strong> <strong>the</strong> process <strong>of</strong> origin <strong>of</strong> law would also result in <strong>the</strong> 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 <strong>the</strong> o<strong>the</strong>r hand, so-called revolutionary positive law.This way ei<strong>the</strong>r more evolutionary positive law or revolutionary positivelaw, viewed through this aspect <strong>of</strong> <strong>the</strong> process <strong>of</strong> origin <strong>of</strong> law, we see andconceptually determine by <strong>the</strong> utterance: LAW AS DESIROUS PRODUCTIONAIMED AT OVERCOMING THE EXISTING FORM OF SOCIAL PRODUCTION(REALITY) AND ESTABLISHING THE NEW ONE.Social determination <strong>of</strong> this notion <strong>of</strong> law is partialy similar to laworiginating from <strong>the</strong> first aspect <strong>of</strong> <strong>the</strong> process <strong>of</strong> origin. Yet, here we havedifferent protection <strong>of</strong> desires and interests <strong>of</strong> <strong>the</strong> opposition forces which wantto oust <strong>the</strong> creator <strong>of</strong> law and change <strong>the</strong> government in order to impose <strong>the</strong>irown interests and use <strong>of</strong> force, which would provide <strong>the</strong>m with protection.Thus, two situations are possible.Talking <strong>of</strong> <strong>the</strong> first situation, we see such law as a desirous production <strong>of</strong><strong>the</strong> notions <strong>of</strong> legal regulation, which are evolutionary but rebellious against <strong>the</strong>existing social reality and situation, and which are, provided <strong>the</strong>y find socialsupport, expressed through legal and technical utterance <strong>of</strong> <strong>the</strong> positive norm.Then we see that law as more flexible, more evolutionary law which may besuitable to <strong>the</strong> creator <strong>of</strong> <strong>the</strong> law, as well as to opposition forces.Talking <strong>of</strong> <strong>the</strong> o<strong>the</strong>r situation (where opposition forces want to impose<strong>the</strong>ir interests and rule <strong>the</strong> process <strong>of</strong> creation and implementation <strong>of</strong> law) wesee that law also as a desirous production <strong>of</strong> <strong>the</strong> notions <strong>of</strong> legal regulation,which evolutionary but rebellious against <strong>the</strong> existing social reality and whichare, provided <strong>the</strong>y find social support, expressed through legal and technicalutterance <strong>of</strong> <strong>the</strong> positive norm in specific social conditions, which would suitour notion <strong>of</strong> revolutionary positive law. Thus, <strong>the</strong>re would be radical changesin social reality and law i.e. legal system.In both situations this perception <strong>of</strong> law comes from <strong>the</strong> second aspect <strong>of</strong><strong>the</strong> process <strong>of</strong> material origin <strong>of</strong> law. We see this law as a desirous production<strong>of</strong> legal regulation aimed at overcoming <strong>the</strong> given social reality (production)and establishing a new one.The analytical and syn<strong>the</strong>tic focus <strong>of</strong> reality (production) gives real socialdimension <strong>of</strong> law. The analytical and syn<strong>the</strong>tic focus <strong>of</strong> reality in its concretematter, <strong>the</strong> social, stimulative impuls and spark in biorational sphere, micro--universe <strong>of</strong> <strong>the</strong> man and his collective, may create, among o<strong>the</strong>r things, a desirousproduction <strong>of</strong> legal regulation aimed at overcoming <strong>the</strong> given social reality and
Biorational and Social Determination <strong>of</strong> <strong>the</strong> 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 <strong>of</strong> social relations, antagonism <strong>of</strong> pluralist interests,and situations <strong>of</strong> social crisis and alike, determine, among o<strong>the</strong>r things, socialdimension which determines <strong>the</strong> original process <strong>of</strong> law in this and <strong>the</strong> firstaspect <strong>of</strong> origin. As we said, we will discuss some o<strong>the</strong>r social factors whichdetermine <strong>the</strong> first and <strong>the</strong> second aspect <strong>of</strong> <strong>the</strong> process <strong>of</strong> material origin <strong>of</strong> lawlater.The third possible aspect <strong>of</strong> <strong>the</strong> process <strong>of</strong> material origin <strong>of</strong> law, as <strong>the</strong>previous two aspects, comes from <strong>the</strong> basis stemmed from clashes <strong>of</strong> differentbiorational and social components but follows a different desirous directionindependent <strong>of</strong> social reality, time and space. Therby desirous notions <strong>of</strong> legalregulation as universal, eternal, identical to natural laws are created, andautonomous survival, intuition, inspiration, discovery, metaphysical speculation<strong>of</strong> different range or simple reasoning determine <strong>the</strong> content, value and measures,given naturally or by God’s will or human mind. This aspect <strong>of</strong> <strong>the</strong> process <strong>of</strong>origin <strong>of</strong> 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 <strong>the</strong> utterance: LAW AS DESIROUSPRODUCTION INDEPENDENT OF SOCIAL REALITY, TIME AND SPACE.So this means that this aspect <strong>of</strong> <strong>the</strong> process <strong>of</strong> material origin <strong>of</strong> law results indesirous notions <strong>of</strong> legal regulation, based on subjective utterances and measures.That subjective utterances and measures as a reflection <strong>of</strong> desirous production<strong>of</strong> notions <strong>of</strong> legal regulations, as we mentioned with <strong>the</strong> first and <strong>the</strong> secondaspect <strong>of</strong> origin <strong>of</strong> law, might be objectified and embodied in <strong>the</strong> form <strong>of</strong> positivelegal norm.However, with this aspect <strong>of</strong> origin <strong>of</strong> natural law <strong>the</strong>se utterances andmeasures are intellectual utterances and measures, perhaps a norm, (but not in<strong>the</strong> aspect <strong>of</strong> positive norm unless positive law is incorporated) or simply arequest and alike. So that intellectual utterance <strong>of</strong> natural law, measure, norm,request and alike could appear as impulsive pressure on creative process <strong>of</strong>positive law, and as correction <strong>of</strong> positive law in certain segments and to acertain extent.What explains <strong>the</strong> need for such determination <strong>of</strong> law as natural, universaland alike? One reason lies in endless creativity <strong>of</strong> human mind and spirit, whichare one <strong>of</strong> <strong>the</strong> driving forces <strong>of</strong> human existence. Ano<strong>the</strong>r one, lies in <strong>the</strong> urge
72Milorad Žižićfor self-preservation, social interaction, identity, existence, orientation, power ando<strong>the</strong>r forms <strong>of</strong> satisfaction. The third one lies in human uncertainty, insecurity andcruel reality. The fourth lies in human imagination, faith and hope. The fifth liesin <strong>the</strong> possibility <strong>of</strong> <strong>the</strong> existence <strong>of</strong> ano<strong>the</strong>r force or natural determination.Those needs create certain significance <strong>of</strong> so-called natural law, aimedat creating desirous notions <strong>of</strong> legal regulation which would provide thiersatisfaction. This is especially related to <strong>the</strong> aspect <strong>of</strong> human rights and liberties,which are, in a way, in <strong>the</strong> foreground as <strong>the</strong> most vital framework <strong>of</strong> existentialsecurity and every democratic legal regime.Dualism <strong>of</strong> so-called natural and positive law, where <strong>the</strong> formal one isenternal, perfect or more perfect and <strong>the</strong> latter is imperfect, cruel, subject to <strong>the</strong>supeordinate, and whose implementation is reduced to organized measurableforce, varies from similarity on one hand, and complete distance and utmostpolarization on <strong>the</strong> o<strong>the</strong>r hand.Dualism <strong>of</strong> those two laws is evident when it comes to human rights andliberties. Positive law, through its nature and development, <strong>of</strong>ten shows certaincruelty or relative protection when it comes to human rights and liberties.Moreover, it may show such a degree <strong>of</strong> cruelty and violation <strong>of</strong> natural harmony<strong>of</strong> human rights and liberties that <strong>the</strong>y may simply be suspended or guaranteedonly to a certain extent, but <strong>the</strong> realization <strong>of</strong> such rights and liberties may bepractically unfeasable. So, <strong>the</strong> 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 <strong>the</strong> wider and more natural notion <strong>of</strong> 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 factor<strong>of</strong> <strong>the</strong> positive law, especially in situations <strong>of</strong> social crises. Experiences <strong>of</strong> <strong>the</strong>French bourgeois revolution confirm it, as well as revolution turning poiunt indevelopment <strong>of</strong> such human rights and liberties. Between supporting duaism<strong>of</strong> intellectual and positive law (legal rationalism) on one hand, and a bid toreconcile rational elements (<strong>of</strong> <strong>the</strong> intellect) and historical ones (<strong>of</strong> positive law),which make objective and legal idealism, on <strong>the</strong> o<strong>the</strong>r 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 o<strong>the</strong>r values, especially when it comes tohuman rights and liberties and <strong>the</strong>ir protection.No matter what aspect <strong>of</strong> origin <strong>of</strong> law we talk about, in our view, such lawis created essentially as a consequence <strong>of</strong> certain causative sequence <strong>of</strong> events.
Biorational and Social Determination <strong>of</strong> <strong>the</strong> Process... 73Each aspect <strong>of</strong> law contains essential features expressed through reason, cause,motivation, desire, purpose, action, sanction, interst and alike, among o<strong>the</strong>rthings. Law <strong>of</strong> any <strong>of</strong> <strong>the</strong> three aspects <strong>of</strong> origin is a phenomenon and meanswhich essentially directs human existence towards an aim mostly in co-existencewith o<strong>the</strong>r processes peculiar for o<strong>the</strong>r aspects <strong>of</strong> human existence. Each <strong>of</strong><strong>the</strong>m has its own way.We project <strong>the</strong> problem <strong>of</strong> comprehension <strong>of</strong> <strong>the</strong> essence <strong>of</strong> law, to acertain extent, from <strong>the</strong> basis created by biorational and social determination<strong>of</strong> law. Out <strong>of</strong> such projection we underline <strong>the</strong> threefold essence <strong>of</strong> law i.e:normative (aspect <strong>of</strong> order in a norm), social (aspect <strong>of</strong> action) and valuable(protection <strong>of</strong> certain values).This gives an antropological and legal view <strong>of</strong> integral projection <strong>of</strong>biorational and social determination <strong>of</strong> <strong>the</strong> process <strong>of</strong> material origin <strong>of</strong> law andessence <strong>of</strong> law, as a our own contribution to <strong>the</strong> <strong>the</strong>ory <strong>of</strong> law.
3 Pr<strong>of</strong>. Miroslav A. Živković, PhDPolice Academy, Belgrade, SerbiaCONTRIBUTION OF AMERICAN LEGAL THEORYIN DEFINING THE CONCEPT OF LAWAbstract: In <strong>the</strong> article <strong>the</strong> author underlined that <strong>American</strong> legal <strong>the</strong>oryinsists on <strong>the</strong> standpoint that general legal acts are being applied most <strong>of</strong>ten onlythrough individual acts and court decision. Therefore, <strong>the</strong> most relevant thingfor <strong>the</strong> citizens is <strong>the</strong> content <strong>of</strong> individual acts, that are <strong>of</strong>ten being passed on<strong>the</strong> basis <strong>of</strong> discretion authority. Therefore, bodies passing individual acts,especially <strong>the</strong> court, are to a great extent independent when determining whatlaw is in that particular case. Independence <strong>of</strong> applying bodies and especiallythat <strong>of</strong> <strong>the</strong> court results from <strong>the</strong> fact that particular legal decisions depend notonly on <strong>the</strong> content <strong>of</strong> law, in o<strong>the</strong>r words regulations, but also from logical,philosophical, political and moral suppositions, that is, understanding thosewho make those decisions.Key words: court decision applying bodies, <strong>American</strong> legal realism,discretion authority1. During <strong>the</strong> nineteenth century, and especially in its second half, legalpositivism dominated in Europe which by generalizing <strong>the</strong> European legalpractice defined law as a system <strong>of</strong> current laws and o<strong>the</strong>r regulations. Reductionismand formalism <strong>of</strong> such approach was criticised both in Europe and in <strong>the</strong> UnitedStates. Late in <strong>the</strong> 19 th century, at about <strong>the</strong> same time two schools <strong>of</strong> free lawappeared first in Germany, and <strong>the</strong>n in o<strong>the</strong>r places through Europe and arealist school in <strong>the</strong> United States <strong>of</strong> America. These schools widen <strong>the</strong> concept<strong>of</strong> law considering it to be unjustly reduced on law or in o<strong>the</strong>r words generallegal acts while <strong>the</strong> importance <strong>of</strong> individual legal acts and especially courtdecisions are being ignored. <strong>American</strong> law schools insist on <strong>the</strong> standpoint thatgeneral legal acts are being applied most <strong>of</strong>ten only through individual acts and
Contribution <strong>of</strong> <strong>American</strong> Legal Theory in Defining <strong>the</strong> Concept <strong>of</strong> Law 75court decision. Therefore, <strong>the</strong> most relevant thing for <strong>the</strong> citizens is <strong>the</strong> content<strong>of</strong> individual acts, that are <strong>of</strong>ten being passed on <strong>the</strong> basis <strong>of</strong> discretion authority.Even when this is not <strong>the</strong> case, quite a number <strong>of</strong> legal regulations are insufficientlydetermined, unclear, mutually contradictory or <strong>the</strong>re is a case <strong>of</strong> legal emptiness.Therefore, bodies passing individual acts, especially <strong>the</strong> court, are to a great extentindependent when determining what law is in that particular case. Independence<strong>of</strong> applying bodies and especially that <strong>of</strong> <strong>the</strong> court results from <strong>the</strong> fact thatparticular legal decisions depend not only on <strong>the</strong> content <strong>of</strong> law, in o<strong>the</strong>r wordsregulations, but also from logical, philosophical, political and moral suppositions,that is, understanding those who make those decisions.2. <strong>American</strong> Legal Realism – This school first appeared towards <strong>the</strong> end <strong>of</strong><strong>the</strong> 19 th century as a reaction to <strong>the</strong> school <strong>of</strong> legal positivism, which overstresses<strong>the</strong> importance <strong>of</strong> legal acts. 1 According to <strong>the</strong> school <strong>of</strong> law positivism, <strong>the</strong> lawis reduced to general legal acts (general norms), and its application to deducingconclusions out <strong>of</strong> general legal norms by means <strong>of</strong> formal logic. This schooloverestimates <strong>the</strong> importance <strong>of</strong> creating law by <strong>the</strong> legislator and underestimates<strong>the</strong> independence <strong>of</strong> courts <strong>of</strong> law and o<strong>the</strong>r organs that apply <strong>the</strong> law. Inviewpoint <strong>of</strong> <strong>the</strong> legal positivism, <strong>the</strong> organs <strong>of</strong> law application are construed in<strong>the</strong> same way as according to <strong>the</strong> school <strong>of</strong> conceptual jurisprudence.Legal realism has come into being as a reaction to overstressing <strong>the</strong>importance <strong>of</strong> state regulations and neglecting <strong>the</strong> creative character <strong>of</strong> judges’rulings as well as <strong>of</strong> <strong>the</strong> freedom <strong>of</strong> courts in interpreting legal regulations.Bearing in mind <strong>the</strong> freedom and creativity <strong>of</strong> <strong>the</strong> courts in interpreting lawsand o<strong>the</strong>r legal regulations, Benjamin Hoadly said at <strong>the</strong> beginning <strong>of</strong> <strong>the</strong> 18 thcentury: The one who has <strong>the</strong> absolute power <strong>of</strong> interpreting any written orspoken law is, indeed, practically <strong>the</strong> legislator, and not <strong>the</strong> person who firstwrote or pronounced it”. 2 The legal realism particularly criticizes <strong>the</strong>positivistic dogma on wholeness and consistency <strong>of</strong> <strong>the</strong> legal system. Regarding<strong>the</strong> fact that <strong>the</strong> legal system is full <strong>of</strong> incompleteness (blanks), inconsistencyand vagueness (ambiguities), <strong>the</strong> court <strong>of</strong> law enjoys a great independency inpronouncing court sentences.Judge and pr<strong>of</strong>essor Oliver Wendell Holmes was among <strong>the</strong> first toexpress doubt about <strong>the</strong> correctness <strong>of</strong>, at that time, dominant analytical and1See point ”<strong>American</strong> Realism” in: D. LLoyd’s Introduction to <strong>Jurisprudence</strong>, pp. 655-670.2B. Hoadly, Bishop <strong>of</strong> 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 <strong>the</strong> explanation <strong>of</strong> law, legal process and nature <strong>of</strong> legalthinking contrary to <strong>the</strong> prevailing inclination to absolutize and mix logic withmetaphysics. According to some thinking, Holms was not only a champion <strong>of</strong>pragmatism in law <strong>the</strong>ory, but was among <strong>the</strong> most prominent people whocontributed to <strong>the</strong> development <strong>of</strong> ”<strong>American</strong> pragmatist spirit”. 3By his explanation <strong>of</strong> social purpose and role <strong>of</strong> law, Holms is a predecessorto <strong>the</strong> functionalist <strong>the</strong>ory. He thinks that law is a means <strong>of</strong> achieving a socialgoal <strong>the</strong> governing force <strong>of</strong> 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 <strong>the</strong> <strong>the</strong>sis on <strong>the</strong> solidarity <strong>of</strong> differentinterests in a society is a false one, and argues laws are means <strong>of</strong> transferringunpleasant burdens from one class to ano<strong>the</strong>r. 4Regarding <strong>the</strong> definition <strong>of</strong> <strong>the</strong> concept <strong>of</strong> law, Holms advocates aconceptual division <strong>of</strong> law and morale. According to him, law is not even amoral minimum, let alone it being entirely based on morale. 5 The true nature<strong>of</strong> law can best be disclosed if it is perceived from <strong>the</strong> viewpoint <strong>of</strong> a bad,immoral person. Such person cares only about predictable, negativeconsequences, and to predict is not possible if it is based solely on <strong>the</strong>knowledge <strong>of</strong> law, but only by combining this knowledge with <strong>the</strong> knowledge <strong>of</strong>court practice. A bad man, says Holmes, does not care about <strong>the</strong> deductionsdrawn out <strong>of</strong> axioms or laws, but tries to learn or predict how a court <strong>of</strong> law inMassachusetts or New England will proceed in a concrete situation. Holmessays that he shares <strong>the</strong> ”bad” man’s opinion about <strong>the</strong> utmost importance <strong>of</strong>this question. ”The prophecies <strong>of</strong> what <strong>the</strong> courts will do in a fact, and nothingmore pretentious are, what I mean by <strong>the</strong> law”. 6The importance <strong>of</strong> a court decision comes from ambiguity and inconsistency<strong>of</strong> law, and <strong>the</strong> existence <strong>of</strong> legal gaps and specific features <strong>of</strong> <strong>the</strong> case to which anorm or norms apply. As Judge Holmes, <strong>the</strong> distinguished representative <strong>of</strong> <strong>the</strong>realist school, says, ”general provisions do not solve particular cases”, <strong>the</strong>reforejudges have ”<strong>the</strong> sovereign prerogative <strong>of</strong> choice”. Holmes disproves <strong>the</strong>3A. 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 <strong>of</strong> <strong>American</strong> Legal Theory in Defining <strong>the</strong> Concept <strong>of</strong> Law 77common viewpoint <strong>of</strong> different positivist schools that legal logic is <strong>the</strong> essence<strong>of</strong> law application process. In his opinion, ”<strong>the</strong> life <strong>of</strong> law is not logic, butexperience” 7 and <strong>the</strong>n he adds that, under a logical form <strong>the</strong>re lies a judgmenton <strong>the</strong> relative value and importance <strong>of</strong> juxtaposed legal bases, <strong>of</strong>ten aninarticulate and unaware judgment which really is a real root and nerve <strong>of</strong> <strong>the</strong>whole procedure. You can give a legal form to any conclusion. You can alwayspresume a stipulation <strong>of</strong> a contract. But, why do you presume it? Because <strong>of</strong> <strong>the</strong>belief that a community or a class acts in this way, or because <strong>of</strong> a political opinion,or, in short, because <strong>of</strong> your attitude on a matter which is not fit for a quantitativemeasuring and, <strong>the</strong>refore, not fit for making precise logical conclusions. 8According to Holmes, contrary to abstract and rigid law, a verdict i.e.judge is capable <strong>of</strong> seeing <strong>the</strong> specific features <strong>of</strong> a particular case, and to resolveand put in harmony <strong>the</strong> legal inconsistencies and <strong>the</strong> inconsistencies <strong>of</strong>individual and social values and interests. Therefore, it is <strong>the</strong> verdict thatrepresents <strong>the</strong> relevant and animate law.In his sociological explanation <strong>of</strong> law, similarly to Holmes and Cardozo,Jerome Frank starts from <strong>the</strong> conflict nature <strong>of</strong> social relations, and conflicts <strong>of</strong>economic, racial, and religious interests and attitudes. However, <strong>the</strong> influence<strong>of</strong> 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 <strong>of</strong>ten is <strong>of</strong> no importance. The effect <strong>of</strong> classaffiliation expresses in <strong>the</strong> cases when <strong>the</strong> parties belong to different classes andwhen, as a rule, <strong>the</strong> judge rules to <strong>the</strong> benefit <strong>of</strong> his peers, but such cases arerelatively rare. 9 Consequently, law shows its class character in one <strong>of</strong> its parts.Franck distinguishes two kinds <strong>of</strong> legislation: legislative (parliamentary)and court. However, nei<strong>the</strong>r <strong>the</strong> legislative nor <strong>the</strong> court decisions constitutelaw, ”law does not consist <strong>of</strong> norms, but <strong>of</strong> decisions”. In <strong>the</strong> process <strong>of</strong> courtcreation <strong>of</strong> law, <strong>the</strong> norms are a condition, a starting point and guidelines, <strong>the</strong>norms have a character <strong>of</strong> means and instruments a judge uses to make hisdecisions. Frank considers <strong>the</strong> personal convictions <strong>of</strong> <strong>the</strong> judge to be <strong>of</strong> moreimportance than <strong>the</strong> contents <strong>of</strong> legal norms. If a judge’s perception differsfrom <strong>the</strong> one, <strong>the</strong>y are obliged to take into consideration by a norm, he willproceed according to <strong>the</strong>ir own opinion by observing <strong>the</strong> 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 <strong>the</strong>y enable his decision to get a formal logic basis in a legal norm. Themajority <strong>of</strong> judges are not aware <strong>of</strong> <strong>the</strong> true nature <strong>of</strong> this psychological process.Due to that fact, <strong>the</strong> court decisions cannot be predicted in advance. Themost important determinant <strong>of</strong> a court decision is <strong>the</strong> psychological traits <strong>of</strong> <strong>the</strong>judge. Frank proves this by presenting numerous statistical data, concludingthat <strong>the</strong> administering <strong>of</strong> justice in a particular case depends primarily on <strong>the</strong>judge who gets to rule and not on <strong>the</strong> contents <strong>of</strong> legal norms. Hiding behindlegal norms is an ideological procedure, and in that sense, law is a form <strong>of</strong>ideology. Moreover, <strong>the</strong>re exist elements <strong>of</strong> residues <strong>of</strong> magic and magical beliefin <strong>the</strong> summon <strong>of</strong> holly words, and <strong>the</strong> summon <strong>of</strong> legal norms comes from <strong>the</strong>belief that <strong>the</strong> words, all in <strong>the</strong>mselves, produce <strong>the</strong> effect accredited to <strong>the</strong>m. Inreality, law as a technical and ideological mechanism secures <strong>the</strong> stability <strong>of</strong>order on <strong>the</strong> one hand, and makes possible <strong>the</strong> arbitrariness <strong>of</strong> state decisions,which is sometimes needed whereas, in some o<strong>the</strong>r cases, it is not needed but istolerable, on <strong>the</strong> o<strong>the</strong>r.Although some representatives <strong>of</strong> <strong>American</strong> realism use <strong>the</strong> judges’behavior concept in <strong>the</strong>ir definitions <strong>of</strong> law, <strong>the</strong>ir understanding should not beconstrued as anti-normative because <strong>the</strong> behavior <strong>of</strong> a judge is reduced to <strong>the</strong>decision, i.e. to <strong>the</strong> norm he passes. Consequently, <strong>the</strong> difference between <strong>the</strong>sociological and positivist school here is primarily terminological because realismalso considers norms i.e. <strong>the</strong> court decisions pronounced by <strong>the</strong> courts to be apresumption <strong>of</strong> law. The basic difference between various schools <strong>of</strong> positivismand realism lies in <strong>the</strong> fact that <strong>the</strong> realistic orientation stresses <strong>the</strong> importance<strong>of</strong> <strong>the</strong> application <strong>of</strong> law and single act <strong>of</strong> law. Law becomes concrete and relevantto <strong>the</strong> opposing parties only in <strong>the</strong> process <strong>of</strong> application. Therefore, in givingits definition <strong>of</strong> law, realism highlights <strong>the</strong> act <strong>of</strong> law application, primarily <strong>the</strong>court decision, instead <strong>of</strong> <strong>the</strong> law and o<strong>the</strong>r regulations. The shifting <strong>of</strong> <strong>the</strong>point <strong>of</strong> law gravity from <strong>the</strong> general to <strong>the</strong> single act <strong>of</strong> law (primarily <strong>the</strong> courtdecision) is conditioned by <strong>the</strong> usage <strong>of</strong> sociological method by <strong>the</strong> realisticschool. Contrary to <strong>the</strong> positivism which underlines that a single act <strong>of</strong> lawshould be passed in accordance with a higher legal act in <strong>the</strong> spirit <strong>of</strong> logic <strong>of</strong> legalsystem hierarchy, <strong>the</strong> actual matter <strong>of</strong> fact notwithstanding, <strong>the</strong> realistic schoolgives <strong>the</strong> definition <strong>of</strong> law primarily having in mind <strong>the</strong> actual relations in <strong>the</strong>application <strong>of</strong> law i.e. <strong>the</strong> real relationship between <strong>the</strong> verdict and <strong>the</strong> law.3. Economic analysis <strong>of</strong> law – In <strong>the</strong> last few decades, two more <strong>the</strong>oreticalorientations (schools) <strong>of</strong> thought have singled out in <strong>the</strong> world. They are
Contribution <strong>of</strong> <strong>American</strong> Legal Theory in Defining <strong>the</strong> Concept <strong>of</strong> Law 79<strong>the</strong>oretical and ideological counterparts: economic analysis <strong>of</strong> law (Law andEconomics), and critical legal studies.R. Coase and R. Posner are <strong>the</strong> most prominent <strong>the</strong>orists <strong>of</strong> economicanalysis <strong>of</strong> law <strong>the</strong> origin <strong>of</strong> which is in <strong>the</strong> USA, (Chicago for <strong>the</strong> most part)and <strong>the</strong> UK, and <strong>the</strong> grounds in <strong>the</strong> tradition <strong>of</strong> classical liberalism. 10According to liberalist point <strong>of</strong> view, economic approach to social and politicalphilosophy is <strong>the</strong> most effective way <strong>of</strong> solving social problems. In view <strong>of</strong> <strong>the</strong>school <strong>of</strong> economic analysis, law must be designed based on economicprinciples due to <strong>the</strong> fact that it regulates social relations and contributes t<strong>of</strong>inding solutions to social problems. Posner thinks that along with traditional,private law, which is already imbued with implicit, economic logic, <strong>the</strong> entirelegal system should be permeated with <strong>the</strong> logic <strong>of</strong> efficacy and perfectcompetitiveness. 11 However, those who criticize <strong>the</strong> views <strong>of</strong> this school pointout <strong>the</strong> fact that, in <strong>the</strong> matter <strong>of</strong> many issues, <strong>the</strong> logic <strong>of</strong> economics divergeswith respect to <strong>the</strong> logic <strong>of</strong> law <strong>the</strong> essence <strong>of</strong> which is reciprocity and fairness.As a mechanism <strong>of</strong> regulation, law is not exclusively in <strong>the</strong> service <strong>of</strong>economics, but also politics, morale and society <strong>the</strong> goals <strong>of</strong> which are notstrictly economic.According to <strong>the</strong> school <strong>of</strong> economic analysis, true economic effectivenessshould be <strong>the</strong> supreme arbiter in formulating law as well as in its application.To say that here <strong>the</strong> idea <strong>of</strong> justice being <strong>the</strong> essence <strong>of</strong> law is replaced by <strong>the</strong>idea <strong>of</strong> economic effectiveness is not an overstatement here. In addition, sincebusiness circles, that have <strong>the</strong> economic power at <strong>the</strong>ir disposal, are thoseprimarily interested in <strong>the</strong> latter, <strong>the</strong> whole <strong>the</strong>ory is, de facto, a rationalization<strong>of</strong> <strong>the</strong>ir interests. Due to its reduction and banality, <strong>the</strong> true school <strong>of</strong> economicanalysis is similar to <strong>the</strong> <strong>the</strong>ory <strong>of</strong> power as <strong>the</strong> basis and essence <strong>of</strong> law. Only,instead <strong>of</strong> physical power, <strong>the</strong> economic effectiveness, which is also a form <strong>of</strong>oppression, is posted here.The school pays particular attention to <strong>the</strong> analysis <strong>of</strong> <strong>the</strong> state <strong>of</strong> welfareand its law. According to <strong>the</strong> views <strong>of</strong> this school, shared by President RonaldReagan, any redistribution <strong>of</strong> pr<strong>of</strong>it in a society o<strong>the</strong>r than <strong>the</strong> ones realizedthru <strong>the</strong> mechanism <strong>of</strong> 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 <strong>of</strong> Law”, in: D. LLoyd’s Introduction to <strong>Jurisprudence</strong>,pp. 374-379.11R. Posner, Economics Analysis <strong>of</strong> Law, 3rd ed., Boston-Toronto, 1972, pp. 29-40.
80Miroslav A. Živkovićremarks that <strong>the</strong>re still is some excuse for redistribution and tax. Without <strong>the</strong>m,<strong>the</strong> misery would rise which gives way to criminal and this, in turn, endangerseconomic effectiveness. Misery in itself obviously is not <strong>the</strong> problem here, it isharmful only to <strong>the</strong> degree in which it endangers <strong>the</strong> rich by way <strong>of</strong> crime. Thisschool advocates rationalization <strong>of</strong> legal regulations which would reduce <strong>the</strong>costs (especially in court proceedings) and create regulations corresponding to<strong>the</strong> agreement that would anyhow be achieved by <strong>the</strong> parties were <strong>the</strong>re nostate-law procedures. In simple terms, <strong>the</strong>re exists a request to create a legalsituation that would exist if <strong>the</strong>re were no law and its protection. Law should becreated according to <strong>the</strong> principle <strong>of</strong> lawlessness i.e. <strong>of</strong> <strong>the</strong> right <strong>of</strong> <strong>the</strong> morepowerful. In this way, <strong>the</strong> request for economic effectiveness is, in <strong>the</strong> end,reduced to <strong>the</strong> policy <strong>of</strong> power (economic power). In a somewhat more moderatefashion, Cose states that <strong>the</strong> opposing parties, being interlinked by externaleffect, will always find an effective solution, if <strong>the</strong>y can negotiate free <strong>of</strong> charge,no matter which one <strong>of</strong> <strong>the</strong>m is legally liable for <strong>the</strong> inflicted damage (Coase’sTheoreme). This presumption will seldom be feasible. It is based on <strong>the</strong> vision<strong>of</strong> a calculated and cooperative homo economicus. However, in reality <strong>the</strong>re are<strong>of</strong>ten different psychological impediments and irrational motives which makeany agreement impossible. The institution <strong>of</strong> legal process has been built onthat very experience which is a thousand years old. It is costly, <strong>the</strong> fact whichparticularly annoys Coase, but as a legal institution, it is necessary.The school <strong>of</strong> economic analysis obviously is a rationalization <strong>of</strong>extremely conservative ideological attitudes. In this sense, it does not have anygrounds in <strong>the</strong> classic liberalism onto which it only verbally reclines. Liberalismdoes not assume that human rights and liberties may reduce to <strong>the</strong> right <strong>of</strong>ownership and economic competition (efficiency). Law must be not just anexpression <strong>of</strong>, but also a limitation <strong>of</strong> <strong>the</strong>se, as well as <strong>of</strong> o<strong>the</strong>r, indisputablyinevitable social values. In law, effectiveness is only one <strong>of</strong> several critical valuessuch as freedom, peace, security, justice, human dignity and truth. Lawexpresses limits and separates <strong>the</strong>se values. It cannot be reduced to one or more<strong>of</strong> <strong>the</strong>se values.More moderate representatives <strong>of</strong> <strong>the</strong> school <strong>of</strong> 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 <strong>of</strong> critical legal studies – This left oriented school is <strong>the</strong>counterpart <strong>of</strong> <strong>the</strong> conservative school <strong>of</strong> economic analysis <strong>of</strong> law. It was built
Contribution <strong>of</strong> <strong>American</strong> Legal Theory in Defining <strong>the</strong> Concept <strong>of</strong> Law 81on <strong>the</strong> foundations <strong>of</strong> Yale, Harvard and Stanford law schools, on <strong>the</strong> traditions<strong>of</strong> critical Marxism, especially that <strong>of</strong> <strong>the</strong> Frankfurt school, and <strong>the</strong> <strong>American</strong>legal realism. In <strong>the</strong> traditional approach to law, this school particularly opposesformalism, positivism, and liberal legalism. The members <strong>of</strong> this school are leftliberals, reformers, and radicals. The program and method foundation <strong>of</strong> <strong>the</strong>critical school is <strong>the</strong> diagnosis <strong>of</strong> <strong>the</strong> society according to which ”<strong>the</strong> Earth and<strong>the</strong> world are thronged with evil and injustice. Pr<strong>of</strong>it and power are unevenlydistributed to <strong>the</strong> degree <strong>of</strong> criminal act. Hypocrisy and hysteria are truehallmarks <strong>of</strong> foreign and domestic politics. Law really, at least partly, reflects”<strong>the</strong> wish <strong>of</strong> those who govern to continue <strong>the</strong>ir governance”. 12 Based on thisassessment <strong>of</strong> societal situation, only a critical grading <strong>of</strong> <strong>the</strong> existing law and<strong>the</strong>ory, and <strong>the</strong> ideology which is in its core, is possible. According to <strong>the</strong>critical school, <strong>the</strong> liberalism which is in <strong>the</strong> nucleus <strong>of</strong> <strong>the</strong> existing law serves asa cover up for <strong>the</strong> status quo by its ostensible care about freedom and individualrights. Legalism, formalism and positivism are in <strong>the</strong> service <strong>of</strong> liberalist ideology.According to <strong>the</strong>ir views, legal science deals only with <strong>the</strong> law given in formalsources <strong>of</strong> law. The meaning and substance <strong>of</strong> law are objectively given, <strong>the</strong>refore<strong>the</strong>y may be objectively comprehended applying <strong>the</strong> method <strong>of</strong> interpretation.According to <strong>the</strong> critical school which accepts <strong>the</strong> essential heritage <strong>of</strong> <strong>the</strong><strong>American</strong> legal realism, <strong>the</strong> presented assumptions are mainly false. Firstly, lawis not an independent social factor, it is nei<strong>the</strong>r 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 <strong>of</strong> subjective political interpretation. Theformal-deductive character <strong>of</strong> legal conclusion is just a form and means <strong>of</strong> anarbitrary political decision. The critical school considers its task to disclose that,in fact, law, similarly to religion, gives legitimacy to <strong>the</strong> given order <strong>of</strong> power.Not just by its interpretation, but also by its formulation, law is an expression <strong>of</strong><strong>the</strong> rich and <strong>the</strong> 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 <strong>the</strong> values, morale and politics <strong>of</strong> <strong>the</strong> governing, orany o<strong>the</strong>r interpreter. It is a great question whe<strong>the</strong>r <strong>the</strong> dogmatic method <strong>of</strong>interpretation is scientific at all, whe<strong>the</strong>r 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 as<strong>the</strong> ancient Romans understood it.5. Conclusion – The majority <strong>of</strong> <strong>the</strong> <strong>American</strong> legal schools <strong>of</strong> XX centurysupport several critical <strong>the</strong>oretical understandings:1) The <strong>the</strong>ory <strong>of</strong> law must be built in close unity with <strong>the</strong> sociologicalperception <strong>of</strong> law;2) When giving a definition <strong>of</strong> law, it should be started from its function,and <strong>the</strong> function <strong>of</strong> law should be separated from <strong>the</strong> functions <strong>of</strong>o<strong>the</strong>r normative systems;3) Both in its creation and in its application, law is closely connected topolitics and morale i.e. needs, interests and ideas <strong>of</strong> people.;4) Connection with morale particularly steps forward in a court processin which judges interpret and resolve <strong>the</strong> inconsistencies and ambiguities<strong>of</strong> <strong>the</strong> legal system and interpret concrete legal concepts, starting from<strong>the</strong> actual social needs and prevailing moral concepts;5) When defining <strong>the</strong> concept <strong>of</strong> law, <strong>the</strong> structural complexity <strong>of</strong> lawphenomenon (gradualism) and, linked with it, <strong>the</strong> progression <strong>of</strong> itsrealization, must be taken in consideration;6) When defining law, a special attention should be paid to <strong>the</strong> significance<strong>of</strong> man and his legal awareness in <strong>the</strong> process <strong>of</strong> formulation <strong>of</strong> a final,concrete, legal decision.By opening new issues and finding original solutions to some traditionaldilemmas, <strong>the</strong> <strong>American</strong> <strong>the</strong>oretical thought <strong>of</strong> <strong>the</strong> 20 th century rises to <strong>the</strong> veryapex <strong>of</strong> <strong>the</strong> world legal thought, abreast with <strong>the</strong> 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 <strong>of</strong> Ronald Miles Dworkin, one <strong>of</strong><strong>the</strong> most important contemporary philosophers <strong>of</strong> law. The author tries to present<strong>the</strong> emergence and development <strong>of</strong> Dworkin’s natural law teachings, which greatlydiffers from classical natural law <strong>the</strong>ory. The differences stem from his eclecticunderstanding <strong>of</strong> legal phenomenon. By combining influences <strong>of</strong> interpretativelegal <strong>the</strong>ory, natural law <strong>the</strong>ory, as well as <strong>of</strong> postmodern philosophy, Dworkincreates new, interpretative natural law. According to him, law is a category whichrests on <strong>the</strong> pluralism <strong>of</strong> legal principles and individual rights. The new value, bywhich <strong>the</strong> legal text is governed, is <strong>the</strong> law as integrity. Law as integrity ismetaphysical category which is achieved through <strong>the</strong> interpretation <strong>of</strong> a judge. Inthis way <strong>the</strong> judge becomes a central figure in decision making and becomes agenerator <strong>of</strong> law creation itself. Only one person, ”judge Hercules”, can attain ahidden meaning <strong>of</strong> natural law on which all legal principles are based, and whichwill give <strong>the</strong> best depiction <strong>of</strong> <strong>the</strong> needs <strong>of</strong> an individual in a society. The new legalreality achieved through interpretation should satisfy moral criteria <strong>of</strong> eachindividual person, and this new reality should treat everyone equally respecting <strong>the</strong>right to self-determination. In that manner, Dworkin’s interpretative natural law<strong>the</strong>ory gives privileges to individuals: those that judge and those that are judged.Such understanding <strong>of</strong> <strong>the</strong> nature <strong>of</strong> law is focused on deciding hard cases.Key words: natural law, interpretation, legal principles, an individualThe views <strong>of</strong> Ronald Dworkin, one <strong>of</strong> <strong>the</strong> most influential figures <strong>of</strong>Anglo-<strong>American</strong> legal tradition, occupy a middle ground between two totallyopposing standpoints in legal <strong>the</strong>ory, between <strong>the</strong> 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 <strong>the</strong> legal <strong>the</strong>ory andphilosophy <strong>of</strong> law. This turn comprised a contemporary understanding <strong>of</strong> <strong>the</strong>tradition <strong>of</strong> liberalism embodied in Locke and Hayek, as well as defining <strong>of</strong> anew problem in identifying <strong>the</strong> phenomenon <strong>of</strong> law and analysis <strong>of</strong> its meaningand contents, i.e. <strong>the</strong> problem <strong>of</strong> legal interpretation.Two fundamental works <strong>of</strong> Dworkin had brought about changes in <strong>the</strong>legal sphere in <strong>the</strong> USA, as well as in England where <strong>the</strong> legal tradition rested onstrict positivism and showed tendency <strong>of</strong> rejecting any possibility <strong>of</strong> interpretation(Austin, Bentham) and any attempt <strong>of</strong> o<strong>the</strong>r social phenomena, i.e. social factors,to influence it. One <strong>of</strong> <strong>the</strong> most significant characteristics marking <strong>the</strong> completelyundeveloped civil life during <strong>the</strong> 1950’s and 1960’s in America consisted <strong>of</strong>establishing absolute and unquestionable difference between what law really isand what law should be. Dworkin negates this concept by introducing morals in<strong>the</strong> very notion <strong>of</strong> law, as well as by introducing <strong>the</strong> concept <strong>of</strong> principles, whichrepresent <strong>the</strong> basic value and precursor <strong>of</strong> human rights without basing <strong>the</strong>mon <strong>the</strong> old rationalistic postulates.Dworkin’s philosophical-legal point <strong>of</strong> view integrates and syn<strong>the</strong>sizes<strong>the</strong> tradition <strong>of</strong> jusnatural <strong>the</strong>ory and <strong>the</strong> <strong>the</strong>ory <strong>of</strong> morals with <strong>the</strong> hermeneuticalcharacter <strong>of</strong> postmodern philosophy, which results in <strong>the</strong> interpretative <strong>the</strong>ory <strong>of</strong>law.The existing classification <strong>of</strong> legal <strong>the</strong>ory schools <strong>of</strong> thought in <strong>the</strong> Anglo--Saxon jurisprudence, regards <strong>the</strong> views <strong>of</strong> Ronald Dworkin as a <strong>the</strong>ory balancingbetween positivism and <strong>the</strong> <strong>the</strong>ory <strong>of</strong> social facts. On <strong>the</strong> o<strong>the</strong>r hand, <strong>the</strong>y areclose to jusnaturalism, whereas some authors consider it a <strong>the</strong>ory <strong>of</strong> realism. 3In a certain way, Dworkin follows <strong>the</strong> concepts <strong>of</strong> legal realism propounded byHolms, Cardozo and Frank. However, aside from <strong>the</strong> noticeable analogy, <strong>the</strong>seviews also differ considerably. 4 Such classification <strong>of</strong> Dworkin’s perception <strong>of</strong>law can be ascribed to his insistence on moral principles in <strong>the</strong> law and partiallyresults from a broad range <strong>of</strong> topics he dealt with. The fields he studied compriselaw, politics, social philosophy, bioethics, <strong>the</strong>ory <strong>of</strong> adjudication, etc. 5 In his2Ronald Dworkin: Law’s Empire, Harvard University Press, 1986. (Ronald Dvorkin, Carstvoprava, Beograd, 2003.)3Simon Blackburn: Oksfordski filoz<strong>of</strong>ski rečnik (Oxford Dictionary <strong>of</strong> Philosophy), Novi Sad,1999, p. 93.4Gordana Vukadinović, Radivoj Stepanov: Uvod u filoz<strong>of</strong>iju prava (Introduction to <strong>the</strong>Philosophy <strong>of</strong> Law), University <strong>of</strong> 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 <strong>of</strong> <strong>the</strong> most significant law philosophers <strong>of</strong>our time. 7 His contemporaries <strong>of</strong>ten mention his monumental contribution to<strong>the</strong> philosophy <strong>of</strong> law and consider him to be a <strong>the</strong>oretician enjoying worldwidereputation. 8 This is clearly proven by <strong>the</strong> number <strong>of</strong> reviews <strong>of</strong> his books andpapers, as well as considerable interest for his <strong>the</strong>ory shown throughout <strong>the</strong>world. Many <strong>of</strong> 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 <strong>the</strong> Harvard Law Schoolfrom which he graduated in 1953. After graduation he worked as a clerk in an<strong>American</strong> law firm (<strong>American</strong> Judge Learned Hand) between 1957 and 1958;after that he worked in a lawyers’ association (New York Law Firm <strong>of</strong> Sullivanand Cromwell) between 1958 and 1962. During that same year, Dworkinbecame a Pr<strong>of</strong>essor <strong>of</strong> Law at Yale University. In 1969 he was appointed to <strong>the</strong>Chair <strong>of</strong> <strong>Jurisprudence</strong> at Oxford. O<strong>the</strong>r pr<strong>of</strong>essors <strong>of</strong> jurisprudence at Oxfordwere likewise well-known experts <strong>of</strong> contemporary legal <strong>the</strong>ory: John Finnis,Neil MacCormick, 9 and Jozeph Raz. From 1975 Dworkin had been working asa pr<strong>of</strong>essor <strong>of</strong> law at <strong>the</strong> New York University where he held a seminar on <strong>the</strong>philosophy <strong>of</strong> law toge<strong>the</strong>r with Robert Nozick, until <strong>the</strong> latter passed away in2002. Dworkin had also been giving lectures at o<strong>the</strong>r prestigious <strong>American</strong>universities such as: Harvard, Cornell and Princeton. He had also givennumerous lectures at <strong>the</strong> University College <strong>of</strong> London in England.The first works he published drew a lot <strong>of</strong> attention with <strong>the</strong>ir 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 filoz<strong>of</strong>iju prava, pp. 166.9Neil MacCormick (1941), has worked as a pr<strong>of</strong>essor at <strong>the</strong> university in Glasgow (GlasgowUniversity) and Edinburgh (Edinburgh University) since 1972. He is a member <strong>of</strong> <strong>the</strong> Academies<strong>of</strong> Sciences and Art both in Finland and Britain. He is <strong>the</strong> author <strong>of</strong> numerous books on <strong>the</strong><strong>the</strong>ory <strong>of</strong> 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 <strong>of</strong> Law, 1986.
86Biljana KneževićJohn Rawls and his work Two Concepts <strong>of</strong> Rules 10 , published in 1955. After <strong>the</strong>publishing <strong>of</strong> this book, it became clear that liberalism had found a new defense<strong>of</strong> its economy and contract based system which Rawls modified and improved.Dworkin was also greatly influenced by Herbert Hart, who had influenced awhole generation <strong>of</strong> young lawyers and law <strong>the</strong>oreticians who shared hisinspiration with Wittgenstein and <strong>the</strong> philosophy <strong>of</strong> common language. It is<strong>the</strong>refore safe to say that <strong>the</strong>se two law <strong>the</strong>oreticians, John Rawls and HerbertHart, left an imprint on <strong>the</strong> work <strong>of</strong> Ronald Dworkin. Bernard Williams, one <strong>of</strong><strong>the</strong> greatest Anglo-Saxon philosophers, also had a significant influence onDworkin. His influence is especially noticeable in Dworkin’s idea <strong>of</strong> equality.Gharet Evans, ano<strong>the</strong>r philosopher, needs to be mentioned when we talk about<strong>the</strong> work <strong>of</strong> Ronald Dworkin 11 . During <strong>the</strong> period between 1973 and 1975Evans and Dworkin held a seminar at Oxford dealing with <strong>the</strong> topics <strong>of</strong>impartiality in law and morality. It was at <strong>the</strong>se seminars that many <strong>of</strong> <strong>the</strong>irjoint ideas were developed. The most significant publications <strong>of</strong> <strong>the</strong> 1950’s which,among o<strong>the</strong>rs, had helped Dworkin to define his own view <strong>of</strong> law were <strong>the</strong> works<strong>of</strong>: Julius Stone, The Province and Function <strong>of</strong> Law, 1946; Wolfgang Friedman,Law and Social Change in Contemporary Britain published in 1951; DennisLloyd, Introduction to <strong>Jurisprudence</strong> published in 1959, containing an overview<strong>of</strong> <strong>the</strong> main jurisprudence schools <strong>of</strong> thought. 12 These works helped himunderstand and overcome traditional liberal ideas <strong>of</strong> state and society andcreate his own legal reality.Law Beyond <strong>the</strong> Law 13 is a very important title <strong>of</strong> Dworkin’s whichexhibits his metaphysical views and explains to a great extent his views on law.This paper became one <strong>of</strong> <strong>the</strong> chapters in his book Law’s Empire and explainshis <strong>the</strong>ory <strong>of</strong> integrity, i.e. law as integrity, very clearly and with great precisionwhile negating any form <strong>of</strong> abstraction in <strong>the</strong> definition and interpretation <strong>of</strong>law. The title itself, Law Beyond <strong>the</strong> Law, indicates that law certainly does notcomprise just court decisions, contrary to <strong>the</strong> point <strong>of</strong> view supported byrealists, conventionalists and conservative legal <strong>the</strong>ory. Never<strong>the</strong>less, Dworkinclaims that law does not consist <strong>of</strong> bare legal norms or pure legal texts ei<strong>the</strong>r,10John Rawls: Two Concepts <strong>of</strong> Rules, Philosophical Review, 64, 1955.11This unrecognized young philosopher with great talent passed away tragically in 1980, at<strong>the</strong> age <strong>of</strong> 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 <strong>of</strong> law which differ inlevels <strong>of</strong> purity and perfection. Discovering <strong>the</strong> perfection <strong>of</strong> law alwaysprogresses from <strong>the</strong> worse towards <strong>the</strong> better. The less perfect forms <strong>of</strong> 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 <strong>the</strong>refore represents a coherent, organized whole, <strong>the</strong> purestform <strong>of</strong> which is yet to be found. This is <strong>the</strong> task <strong>of</strong> absolutely intelligent judge,whom Dworkin calls Hercules, who will be capable <strong>of</strong> identifying all essentialstructures <strong>of</strong> an ifallible system and finding its most perfect form and meaningcontained somewhere in a legal text. The title <strong>of</strong> his paper – Law Beyond <strong>the</strong> Lawleads to certain natural-law implications, i.e. <strong>the</strong> 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 <strong>the</strong> law leads to itsmore perfect form, having as a goal <strong>the</strong> image <strong>of</strong> this ’law beyond <strong>the</strong> law’. Thelaw attains its ideal through <strong>the</strong> interpretation <strong>of</strong> a judge.As a consequence, many legal <strong>the</strong>orists, as well as those who criticizeDworkin, such as Neil MacCormick, Raz or Paul Gaffney, classify him as a<strong>the</strong>orist <strong>of</strong> natural law. Raz was among <strong>the</strong> first to notice natural law elementsin his <strong>the</strong>ory. 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 <strong>of</strong> <strong>the</strong> law. Natural law does not study what law is, but what itshould be. Pursuant to natural law, judges should decide difficult cases byinterpreting <strong>the</strong> political structure <strong>of</strong> <strong>the</strong>ir community in a special way trying toidentify moral principles <strong>of</strong> <strong>the</strong> community. 15Dworkin’s world, much like Rousseau’s, originates from <strong>the</strong> same idea <strong>of</strong>creating <strong>the</strong> world from <strong>the</strong> subjective. He believes that a man has been alienatedfrom his own reality and that his condition is not au<strong>the</strong>ntic. However, <strong>the</strong> basicdifference between <strong>the</strong>se two authors issues from contrasting perceptions <strong>of</strong>abstract categories such as freedom, general will, and civil state. Dworkin doesnot postulate a non-historical moment in <strong>the</strong> existence <strong>of</strong> natural state – hisindividual rights result from <strong>the</strong> existence <strong>of</strong> <strong>the</strong> individual morality and conscience14Joseph Raz: ”Pr<strong>of</strong>essor Dworkin’s Theory <strong>of</strong> Rights”, Political Studies, 26, 123, 1978. Quote:Ronald Dworkin: The Essence <strong>of</strong> Individual Rights, pp. 444.15Ibid.
88Biljana Knežević<strong>of</strong> each person, where morality is divested <strong>of</strong> any notion <strong>of</strong> collectivity. Generalwill, postulated by Rousseau, is an abstract notion <strong>of</strong> <strong>the</strong> freedom <strong>of</strong> <strong>the</strong> majority,whereas <strong>the</strong> will <strong>of</strong> all includes individual wills <strong>of</strong> each member <strong>of</strong> a society. 16In his work, Dworkin completely disregards general will and abstract category<strong>of</strong> freedom. He insists on only one <strong>of</strong> Rousseau’s claims for freedom and equality.He insists only on equality. This commensurable and commutative value is notcharacteristic <strong>of</strong> contemporary liberal world founded on <strong>the</strong> material aspect andfree exchange. On <strong>the</strong> o<strong>the</strong>r hand, Dworkin’s <strong>the</strong>ory clearly reflects <strong>the</strong> pinnaclein development <strong>of</strong> particular wills opposed to <strong>the</strong> general will. The wish forequality remains in his <strong>the</strong>ory only an impossibility <strong>of</strong> denying <strong>the</strong> notoriousfact that general distributor does in fact exist. Thus, a fatal inversion takes place:<strong>the</strong> will <strong>of</strong> all resists <strong>the</strong> general will and strives to conquer through its anarchism.Universes <strong>of</strong> individual wills, set in motion by subjective, social behaviour andcreation <strong>of</strong> individual personality rise above <strong>the</strong> politics – ’a modern subjectivityresting on <strong>the</strong> principle that all exists because <strong>of</strong> me, presented itself explicitlythrough a decision to create <strong>the</strong> state and era from <strong>the</strong> very beginning, from <strong>the</strong>idea itself –world is created from a single idea.’ 17Dworkin’s <strong>the</strong>ory in its natural-law dimension reminds <strong>of</strong> an elaboratedconcept <strong>of</strong> Rousseau. It casts a new light on <strong>the</strong> <strong>the</strong>ory <strong>of</strong> natural law, by negating<strong>the</strong> concept <strong>of</strong> general will. General will does not create law, it represents merelya small part <strong>of</strong> <strong>the</strong> law as integrity; it represents <strong>the</strong> power <strong>of</strong> politics and rule inwhich individual rights and individual will are dispersed and deprived. In place<strong>of</strong> general will as a central topic justifying supremacy <strong>of</strong> collectivity, Dworkinpostulates a new source <strong>of</strong> sovereignty – law as integrity. Law as integrity isindividual and general at <strong>the</strong> same time – it represents a ”common” will whichdoesn’t make ontological differences between an individual and collective. Itrecognizes equally an individual and <strong>the</strong> collective. In Dworkin’s <strong>the</strong>orysubjectivity is raised to objectivity. Law becomes integrity <strong>of</strong> both <strong>the</strong> individualand <strong>the</strong> society – Rousseau’s general and individual will, where <strong>the</strong> individual,i.e. will <strong>of</strong> all is given priority. However, this imagined integrity has not yet beenaccomplished. Law is a system which purifies itself – by pursuing <strong>the</strong> values <strong>of</strong>integrity less perfect forms become more perfect anticipating <strong>the</strong>ir time <strong>of</strong> <strong>the</strong>16Gordana Vukadinović: Žan Žak Ruso i prirodno pravo, (Jean-Jaques Rousseau and NaturalLaw) Petrovaradin, 2005, pp. 94. ff.17Lazar Vrkatić: Ontologijski stav filoz<strong>of</strong>ije prava (Ontological Content <strong>of</strong> <strong>the</strong> Philosophy <strong>of</strong>Law), Novi Sad, 1997, pp. 41.
Ronald Dworkin’s Natural Law 89absolute, i.e. <strong>the</strong> integrity itself. 18 Integrity is not unattainable but it has not asyet been achieved. Dworkin himself thinks <strong>of</strong> it as a possible utopia, as well as<strong>the</strong> solution to <strong>the</strong> incessant conflicts between <strong>the</strong> political power and <strong>the</strong>individual, regarding <strong>the</strong> power <strong>of</strong> politics as sufficiently abstract to lose <strong>the</strong>credibility <strong>of</strong> subject discussed in <strong>the</strong> law. Dworkin’s <strong>the</strong>ory questions <strong>the</strong>au<strong>the</strong>nticity and legitimacy <strong>of</strong> power. It poses <strong>the</strong> question whe<strong>the</strong>r a state shouldexist at all if it fails to include in its concept innumerable individual wills.Owing to this discrepancy between <strong>the</strong> law as it is and <strong>the</strong> law as it should be, itis safe to say that Dworkin’s <strong>the</strong>ory is as much a natural law <strong>the</strong>ory as <strong>the</strong><strong>the</strong>ory <strong>of</strong> Rousseau and his contemporaries, such as: Lon Fuller, <strong>the</strong> founder <strong>of</strong>procedural subtype <strong>of</strong> natural law; and John Finnis, <strong>the</strong> founder <strong>of</strong> substantivenaturalism. 19The analysis <strong>of</strong> Dworkin’s and Rousseau’s work shows ano<strong>the</strong>r similaritybetween <strong>the</strong> two authors which has to be kept in mind. The similarity lies in <strong>the</strong>act <strong>of</strong> installing one person that should accomplish a heroic task <strong>of</strong> attaining <strong>the</strong>set values <strong>of</strong> <strong>the</strong> ideal. In Rousseau’s <strong>the</strong>ory this person is a ”heroic legislator”vested with <strong>the</strong> powers <strong>of</strong> <strong>the</strong> highest human reasonableness, 20 personifying <strong>the</strong>general will and <strong>the</strong> spirit itself; whereas in Dworkin’s <strong>the</strong>ory this is <strong>the</strong> Herculesjudge who also possesses superhuman abilities in making decisions which allowhim to penetrate <strong>the</strong> very essence, i.e. <strong>the</strong> nature <strong>of</strong> law. If <strong>the</strong> heroic legislator<strong>of</strong> Rousseau embodies general will that creates everything from one idea, 21 inDworkin’s <strong>the</strong>ory <strong>the</strong> individual will <strong>of</strong> this Hercules is not a product <strong>of</strong> <strong>the</strong>general, which indicates additional revolution and advocacy <strong>of</strong> <strong>the</strong> subjective.Subjective in his work is presented in its full significance – as a being inherentlyabundant in virtues. All multiplicities and heterogeneities <strong>of</strong> contemporarysociety and law are revoked through an ideal image <strong>of</strong> a unique, virtuous man.This is a true celebration and praise <strong>of</strong> an individual. ”Heroic legislator” inRousseau’s <strong>the</strong>ory deals with generality; he represents an emanation <strong>of</strong> generalwill and enacts laws. Hercules does not represent <strong>the</strong> majority, nor is he amanifestation <strong>of</strong> any kind <strong>of</strong> generality. As such, Hercules is not capable <strong>of</strong>18Ronald 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 <strong>of</strong> <strong>the</strong> Inequality Among Men), Zagreb, 1978. pp. 117.21Gordana Vukadinović: Žan Žak Ruso i prirodno pravo, pp. 102. and fur<strong>the</strong>r, Lazar Vrkatić:Ontologijski stav filoz<strong>of</strong>ije 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, <strong>the</strong> civic virtue aspires to spread in all. 22 Hercules,<strong>the</strong>refore, does not possess civic virtue, nor does any o<strong>the</strong>r individual in Dworkin’ssociety. ”Heroic judge” is a distinguished individual vested with <strong>the</strong> right toattain <strong>the</strong> absolute, i.e. <strong>the</strong> integrity itself. Dworkin’s <strong>the</strong>ory can <strong>the</strong>refore beclassified as nei<strong>the</strong>r strictly liberal nor rational, least <strong>of</strong> all intellectual, whilst <strong>the</strong>individuals in Dworkin’s society are not citizens – <strong>the</strong>y are nei<strong>the</strong>r virtuous norrational. Individuals in Dworkin’s society have <strong>the</strong>ir own, self-willed nature,which are inherently au<strong>the</strong>ntic and do not constitute a part <strong>of</strong> ”spirit <strong>of</strong> <strong>the</strong>community” or any o<strong>the</strong>r abstract principle and generality.General will as a political moment is put in question, ruined with <strong>the</strong>establishment <strong>of</strong> «self-awareness» <strong>of</strong> an individual and advancement <strong>of</strong> <strong>the</strong> new”technology society”. We can see that Rousseau’s <strong>the</strong>ory when applied in <strong>the</strong>setting <strong>of</strong> a modern society and law can not be presented as <strong>the</strong> manifestation <strong>of</strong>general 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 <strong>the</strong> <strong>the</strong>ory <strong>of</strong> natural law lies in <strong>the</strong>relation between natural and positive law. More specifically, positive andpredetermined, natural law, are not entirely metaphysically separated in <strong>the</strong><strong>the</strong>ory <strong>of</strong> law. What links <strong>the</strong>m is interpretation. Interpretation gives <strong>the</strong>m life;it is <strong>the</strong>ir logos, an eternal flame linking two seemingly irreconcilable opposites.Interpretation is without a doubt <strong>the</strong> operating principle without which nei<strong>the</strong>rpositive law, nor law as integrity would be able to function. Through interpretationpositive law continually tries to find <strong>the</strong> best possible answer and achieve <strong>the</strong>highest value. This is both its weapon and <strong>the</strong> way in which it can be saved, broughtto life and revolutionized. Principles are <strong>the</strong> starting point <strong>of</strong> interpretation,because human rights originate precisely from <strong>the</strong>se principles. They indicaterights which man is entitled to naturally and outside <strong>of</strong> legal texts, in o<strong>the</strong>r words<strong>the</strong>y are autochthonous.Let us consider now <strong>the</strong> nature <strong>of</strong> Dworkin’s absolute, i.e. law as integrity,in <strong>the</strong> light <strong>of</strong> natural law <strong>the</strong>ories. Heraclites claimed that ”From a God’s point<strong>of</strong> view all things are beautiful, good and just; however, man has made assumption22Lazar Vrkatić: Prirodno pravo i pozitivisanje prava (Natural Law and Positivization <strong>of</strong>Law), doctoral dissertation, University <strong>of</strong> Novi Sad, Faculty <strong>of</strong> Law, 1993. pp. 222.
Ronald Dworkin’s Natural Law 91that some things are just and o<strong>the</strong>rs are not” 23 . Aristotle believes that naturallaw is only that law which has <strong>the</strong> same significance everywhere, i.e. a lawcommon to all. 24 O<strong>the</strong>r ancient writers, such as stoics, claimed that natural lawrepresents <strong>the</strong> measure <strong>of</strong> all o<strong>the</strong>r laws, while o<strong>the</strong>rs equated it with God. Theforegoing views show that natural law is regarded as something eternal andconstant, unlike <strong>the</strong> law <strong>of</strong> man which is susceptible to changes. While naturallaw, whe<strong>the</strong>r considered to be an embodiment <strong>of</strong> God or nature itself, ismonolithic and unique representing an ideal and absolute existence, temporallaws are led by forethought <strong>of</strong> <strong>the</strong> 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 <strong>the</strong>ories <strong>of</strong> natural law. At <strong>the</strong> same time this is also a novelty and asensational discovery <strong>of</strong> its own kind. The existence <strong>of</strong> natural law, i.e. law asintegrity, is not motionless. On <strong>the</strong> contrary, Dworkin says that he never claimedthat <strong>the</strong>re is one single, right answer, but a variety <strong>of</strong> ’right’ answers. 25 His world <strong>of</strong>law as integrity is not monolithic or motionless. Quite <strong>the</strong> opposite, it contains <strong>the</strong>principle <strong>of</strong> inclusion. Open to all new ideas and multi-layered, in o<strong>the</strong>r words, it ispluralistic and dispersed, just as individuals differ from each o<strong>the</strong>r. This claimrepresents an undisputable pro<strong>of</strong> <strong>of</strong> <strong>the</strong> influence <strong>of</strong> critical <strong>the</strong>ories as well aspostmodern <strong>the</strong>ory <strong>of</strong> law. Dworkin has been classified as a <strong>the</strong>orist <strong>of</strong> ”postliberalism”26 for a good reason. It is precisely this essential element <strong>of</strong> his <strong>the</strong>ory:<strong>the</strong> mobility, inclusion and flexibility, where we recognize his departure fromclassical philosophy <strong>of</strong> natural law as well as breakaway from Kant and any o<strong>the</strong>rclassical 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 <strong>the</strong> existence <strong>of</strong> categorical moral imperatives, presumedhuman rationality, universal intellectual contents, even God himself (natural law asdivine providence) and seeks out au<strong>the</strong>ntic achievements hidden in his nature.Dworkin’s <strong>the</strong>ory does not contain artificial geometry <strong>of</strong> 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 filoz<strong>of</strong>ski 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 nei<strong>the</strong>r mind nor intellect. This denominator,according to Dworkin, can only be <strong>the</strong> possibility <strong>of</strong> communication betweentotally different individuals. Dworkin insists on directing attention to <strong>the</strong> impossibility<strong>of</strong> speaking in <strong>the</strong> same language 27 and negates <strong>the</strong> fact thatcommunication is carried out exclusively through <strong>the</strong> phenomenon <strong>of</strong> humanrationality.The second argument supporting <strong>the</strong> claim that universal rational content,i.e. presumed rationality, does not exist, consists in his explanation <strong>of</strong> self--construction, i.e. self-purification <strong>of</strong> positive law. Law develops through evolution,namely: its simple form contains a more perfect one, whereas <strong>the</strong> latter containsan ever more perfect form. Law is dynamical; law gains this dynamic, i.e. progress,through interpretation. However, this is not an interpretation <strong>of</strong> any kind, it isan interpretation performed by an individual. Thus, <strong>the</strong> law progresses creatingcontinually new legal realities. New legal realities are also interpretations whichshould satisfy moral criteria <strong>of</strong> 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, <strong>the</strong>refore,does not exist.All <strong>the</strong> classic formulas <strong>of</strong> natural law used by Dworkin have beenobserved, as well as several postmodern elements. The aforementioned leads toconclusion that Dworkin is trying to syn<strong>the</strong>size moral <strong>the</strong>ory with <strong>the</strong> tradition<strong>of</strong> natural law and elements <strong>of</strong> postmodern philosophy. The result isinterpretative <strong>the</strong>ory <strong>of</strong> law, focused on <strong>the</strong> essential moral nature <strong>of</strong> decidingdifficult cases. The judge is <strong>the</strong> one who must find <strong>the</strong> ideal integrity. He27Djilo Dorfles (1910– ), one <strong>of</strong> <strong>the</strong> most renowned philosopher <strong>of</strong> aes<strong>the</strong>tics uses expression’pre-Babylonian state’ (before <strong>the</strong> construction <strong>of</strong> <strong>the</strong> tower <strong>of</strong> Babylon was all people spoke<strong>the</strong> same language) in his book Theory <strong>of</strong> Disharmony he tries to indicate <strong>the</strong> so-calledgeometric abstractism, i.e. rationalized, ”understandable” perception <strong>of</strong> world and reality.Taking this view into consideration, it is clear that Dworkin’s interpretative <strong>the</strong>ory <strong>of</strong> lawand Habermas’s <strong>the</strong>ory <strong>of</strong> communication fully recognize ”post-Babylonian” historical stage,observing people in line with<strong>the</strong> principles <strong>of</strong> <strong>the</strong>ir diversity.
Ronald Dworkin’s Natural Law 93emphasizes epistemic and metaphysical aspect <strong>of</strong> morals. He gives priority toindividual goals instead <strong>of</strong> <strong>the</strong> politics <strong>of</strong> a group. 28At this point, Dworkin makes a truly brave and impressive inversion.Individual opinion becomes <strong>the</strong> objective truth. This highly significant andessential postulate becomes <strong>the</strong> source <strong>of</strong> very serious consequences in Dworkin’sviews on <strong>the</strong> rights <strong>of</strong> <strong>the</strong> collective and individuals, human rights issues, legalrelations, duties and obligations, as well as <strong>the</strong>ory <strong>of</strong> adjudication. Should weaccept <strong>the</strong> <strong>the</strong>sis that morals are ontological expression <strong>of</strong> social principle, 29 wecan conclude that society in Dworkin’s <strong>the</strong>ory is not a civil society because it doesnot contain morality which is derived from <strong>the</strong> collective according to a traditionaldefinition. This society is ra<strong>the</strong>r a community <strong>of</strong> individuals in which <strong>the</strong>y aretreated equally by <strong>the</strong> authorities and interconnected through communication –exchange <strong>of</strong> opinions about <strong>the</strong>ir uniqueness.Individual will does not stem from <strong>the</strong> concept <strong>of</strong> state or spirit; it exists<strong>of</strong> its own. It has its own independent morality. The attempt to equate <strong>the</strong>significance <strong>of</strong> an individual and <strong>the</strong> state is indeed quite noble. However, thisintention opposes pr<strong>of</strong>oundly <strong>the</strong> authority <strong>of</strong> <strong>the</strong> spirit <strong>of</strong> <strong>the</strong> state and dogmatism<strong>of</strong> its sublime position in <strong>the</strong> development <strong>of</strong> <strong>the</strong> world spirit. Owing to thischaracteristic, Dworkin’s <strong>the</strong>ory <strong>of</strong> law is decadent and destructive not only to<strong>the</strong> very notion <strong>of</strong> <strong>the</strong> state, but also seriously challenges <strong>the</strong> idealistic premise<strong>of</strong> <strong>the</strong> development <strong>of</strong> <strong>the</strong> being itself.Judge Hercules is also only an individual trying to take into considerationall relevant facts <strong>of</strong> <strong>the</strong> broader concept <strong>of</strong> ’law as integrity’ in <strong>the</strong> process <strong>of</strong>adjudication, this judge respects not only laws and political goals but equally andto <strong>the</strong> same extent <strong>the</strong> opinions <strong>of</strong> each individual. In this way he builds his own<strong>the</strong>ory <strong>of</strong> law. Using <strong>the</strong> existing law he creates a new, evolved and more perfectlaw. Dworkin believes that existing law contains a purer form <strong>of</strong> law which hecalls pure integrity. The task <strong>of</strong> judge Hercules is to discover <strong>the</strong> most perfectpossible law within <strong>the</strong> existing imperfect law. To attain law as integrity, <strong>the</strong>highest quality in <strong>the</strong> sphere <strong>of</strong> law, <strong>the</strong> 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 <strong>the</strong> virtues <strong>of</strong> Aristotle’sancient man full <strong>of</strong> virtues. This judge, however, is not Aristotle’s man nor can28Paul Gaffney: Ronald Dworkin on Law as Integrity Rights as Principles <strong>of</strong> Adjudication,Edwin Mellen Press, 1996.29Lazar Vrkatić: Prirodno pravo i pozitivisanje prava, pp. 364.
94Biljana Knežević<strong>the</strong> word ’virtue’ carry <strong>the</strong> same importance and meaning in <strong>the</strong> <strong>the</strong>ory <strong>of</strong>Dworkin and <strong>the</strong> teaching <strong>of</strong> Aristotle. Virtue is a concept which represents <strong>the</strong>essential value <strong>of</strong> antique philosophy, especially in <strong>the</strong> philosophy <strong>of</strong> Plato andAristotle. It denotes above all morality, honour, nobleness and heroic acts – itrepresents <strong>the</strong> activity <strong>of</strong> <strong>the</strong> soul. 30 Aristotle believes that virtue is somethingself-sufficient and perfect – he defines virtue as <strong>the</strong> measure <strong>of</strong> all things. 31 Inhis opinion, a man <strong>of</strong> virtues merely reflects <strong>the</strong> polis and symbolizes immobilityand self-sufficiency. Aristotle abhorred democracy and considered it to be <strong>the</strong>worst form <strong>of</strong> rule, whereas he thought <strong>of</strong> consumption-production industry as<strong>the</strong> most primitive form <strong>of</strong> activity. 32 Dworkin never mentions self-sufficiency;in his <strong>the</strong>ory everything progresses and changes from positive legislation to <strong>the</strong>essential assiduity <strong>of</strong> law as integrity. Dworkin’s individual may hold opinionswhich differ entirely from <strong>the</strong> views <strong>of</strong> community and <strong>the</strong> state. The questionnow is why does judge Hercules have to be <strong>the</strong> one endowed with virtues.Generally speaking, <strong>the</strong> nature <strong>of</strong> virtue is ra<strong>the</strong>r disputable in <strong>the</strong> society inwhich Dworkin lives. This analysis can only attempt to provide an answer tothat question.To answer <strong>the</strong> question <strong>of</strong> what is virtue in <strong>the</strong> world today, we must firstrealize that judge Hercules actually represents a generator <strong>of</strong> interpretation.Interpretation is <strong>the</strong> linking element and it sets <strong>the</strong> whole <strong>of</strong> Dworkin’smachinery in motion. It has a defined goal and course, i.e. it progresses towardsset values which comprise law as integrity and <strong>the</strong> integrity itself is again subjectto interpretation. In this dynamic Dworkin’s world it is difficult to identifysomething that will be constant and unchangeable, <strong>the</strong> only thing that remainsmotionless. Society in which we live represents a sort <strong>of</strong> phenomenon in <strong>the</strong>development <strong>of</strong> human consciousness in which <strong>the</strong> conflict <strong>of</strong> opinions,behaviour and habits is fully allowed. In this society homosexuals and feminists,<strong>the</strong>orists supporting post criticism opinions and members <strong>of</strong> ’jurisprudenceoutsiders’ express <strong>the</strong>ir opinions freely without <strong>the</strong> desire to prove <strong>the</strong>m right.In this case, however, Dworkin has succumbed to <strong>the</strong> 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: Filoz<strong>of</strong>ija 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, <strong>the</strong> whole activity, i.e. interpretation, as <strong>the</strong>link between <strong>the</strong> two worlds, lies in <strong>the</strong> virtue to recognize bipolarity and twosides <strong>of</strong> each process state – individual. A true activity that alters <strong>the</strong> world cancome solely from virtue which is able to comprehend this. Dworkin realizes thisclearly and tries to ascribe <strong>the</strong>se virtues to <strong>the</strong> omnipotent judge Hercules.Unfortunately, Hercules is only a subject within <strong>the</strong> law. In Dworkin’s <strong>the</strong>oryeverything is derived from <strong>the</strong> subject: morality, interpretation, law, even <strong>the</strong>state. All <strong>the</strong>se are founded on <strong>the</strong> morals <strong>of</strong> an individual. This morality is notobjective or <strong>of</strong> rational nature. Precisely because <strong>of</strong> <strong>the</strong> fact that objective moraljudgment is not recognized, it would be better to say that in Dworkin’s <strong>the</strong>oryeverything lies on <strong>the</strong> principles <strong>of</strong> an individual. Since we can not reduce <strong>the</strong>individuals in Dworkin’s <strong>the</strong>ory to general rationality, <strong>the</strong>y do not represent apart <strong>of</strong> general moral legislation. It can <strong>the</strong>refore be concluded that <strong>the</strong>y aredivested <strong>of</strong> <strong>the</strong> feeling for justice and impartiality recognizing no generalcategory. The individual has only ’personal justice’ and individual independentmorality. The only person capable <strong>of</strong> comprehending integrity and generalcategories is judge Hercules because he possesses virtues. However, Hercules isnot polis; he is not a man <strong>of</strong> ancient Greece and <strong>the</strong>refore has no old, ancestralvirtues. Precisely because <strong>of</strong> 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 <strong>the</strong> subject as athinking being, differs entirely from <strong>the</strong> ways and methods in which men usedto think. German idealists believed that <strong>the</strong> subject was subordinated to <strong>the</strong>objective truth – Kant believed that <strong>the</strong> subject can never perceive this truth, 34whereas for Hegel subject is only a grain <strong>of</strong> sand in history, necessary part <strong>of</strong> <strong>the</strong>eternal mind moving in compliance with its rules. 35 Dworkin’s views are totallyopposite: <strong>the</strong> subject is one that creates and sets conditions, poses questions andgives answers, whe<strong>the</strong>r it be Hercules vested with virtues and guided by principlesor any o<strong>the</strong>r individual <strong>of</strong> <strong>the</strong> society advocating personal opinions. It is clearthat, regardless <strong>of</strong> 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 <strong>of</strong> <strong>the</strong> Practical Mind), Beograd, 2004, p. 29.35Georg V.F Hegel: Enciklopedija filoz<strong>of</strong>skih znanosti (Encyclopedia <strong>of</strong> Phylosophical Science),Sarajevo, 1987. p. 122, 412.
96Biljana Kneževićo<strong>the</strong>r contemporary <strong>the</strong>ories, Dworkin’s <strong>the</strong>ory was influenced by critical and’outsider <strong>the</strong>ories’ 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 <strong>the</strong>ory both coherence and integrity lie in <strong>the</strong> personalityitself. Hercules is a hybrid resulting from a fragmented society; he is trying toreach <strong>the</strong> hidden meaning <strong>of</strong> politics. By conferring <strong>the</strong> finding <strong>of</strong> potentialmeaning to Hercules alone, Dworkin runs <strong>the</strong> risk <strong>of</strong> transforming Herculesinto a purpose <strong>of</strong> his own, which is exactly what Hercules does become. Hecomes to be <strong>the</strong> source and centre <strong>of</strong> interpretation. The purpose in Dworkin’s<strong>the</strong>ory <strong>the</strong>refore does not lie in <strong>the</strong> collective or laws observed only formally. Heseeks <strong>the</strong> existing reality <strong>of</strong> human nature and laws which would represent itaccurately. Individualization <strong>of</strong> society – this is <strong>the</strong> quality Dworkin promotesand Hercules represents its prototype. In this way <strong>the</strong> law becomes obligated to<strong>the</strong> individual and not vice versa.The idea <strong>of</strong> modern subjectivism in Dworkin’s work evolves fur<strong>the</strong>r – anindividual is no longer an abstract subject in <strong>the</strong> law resulting from <strong>the</strong> generalgood, but a free maker <strong>of</strong> <strong>the</strong> law. Herbert Marcuse was right when he compared<strong>the</strong> spirit <strong>of</strong> <strong>the</strong> world, a hypostasized historical subject, with <strong>the</strong> hidden andterrifying Calvinistic God in his title The Mind and Revolution. Hegel arguesthat this deus absconditus turns history into a scene <strong>of</strong> suffering and afflictioninstead <strong>of</strong> happiness. 37 While Charles Taylor believes that avoiding moralabsolute was <strong>the</strong> product <strong>of</strong> <strong>the</strong> supremacy <strong>of</strong> technology, Dworkin is closer to<strong>the</strong> opinion that avoiding this absolute represents a deliverance from tyranny <strong>of</strong>unified thinking. Subject in <strong>the</strong> law is not free; individuals in contemporarysociety are inhibited by <strong>the</strong> omnipotent collectivistic system <strong>of</strong> rule.Never<strong>the</strong>less, <strong>the</strong>re is one element in Dworkin’s <strong>the</strong>ory that allows truefreedom <strong>of</strong> man in an au<strong>the</strong>ntic and ontological sense. Only those that createand those who have freedom <strong>of</strong> creation are free. For <strong>the</strong> time being, only judgeHercules is free because his freedom is not a permitted freedom; he has <strong>the</strong>freedom <strong>of</strong> interpretation, i.e. creation. The social definition <strong>of</strong> freedom isreflected in <strong>the</strong> attitude that a person’s freedom is limited by ano<strong>the</strong>r person’sfreedom. This is a rational, liberal attitude which regards freedom as limitedself-will. 38 However, <strong>the</strong> freedom <strong>of</strong> Hercules does not have <strong>the</strong> form <strong>of</strong>36Ronald Dvorkin: Carstvo prava, pp. 228. ff.37Ljubomir Tadić: Filoz<strong>of</strong>ija u svom vremenu, pp. 22.38Lazar Vrkatić: Prirodno pravo i pozitivisanje prava, pp. 290.
Ronald Dworkin’s Natural Law 97permission; he is <strong>the</strong> only one in touch with <strong>the</strong> concept <strong>of</strong> integrity as anabsolute concept and <strong>the</strong>refore <strong>the</strong> only one who has freedom in <strong>the</strong> 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 <strong>of</strong> usmortals are not allowed to attain freedom in a substantial sense. Our freedom isactually a cry for equality. We can conclude <strong>the</strong>refore that everything Kant saidabout freedom, Dworkin can argue about equality. Do we have a right to freedom?Should we embrace Dworkin’s views <strong>the</strong> answer will certainly be negative.Calling attention to such facts, as well as lack <strong>of</strong> freedom and inequalityamong individuals in society constitutes ano<strong>the</strong>r enormous contribution <strong>of</strong>Dworkin to <strong>the</strong> <strong>the</strong>ory <strong>of</strong> natural law and contemporary postmodern developmentsin <strong>the</strong> field <strong>of</strong> law. He gave us <strong>the</strong> opportunity to view modern legal <strong>the</strong>ory froma different angle, i.e. from a perspective <strong>of</strong> modernized and multiple legal realityoriginating from ’anti-universal’ and post-metaphysical beliefs. Such a viewpointrefuses to accept legality as an emanation <strong>of</strong> unitarian mind, whereas universalreason becomes impossible in <strong>the</strong> setting <strong>of</strong> social and ideological pluralism. InDworkin’s <strong>the</strong>ory, just like in many o<strong>the</strong>r modern <strong>the</strong>ories,uninterruptedcommunication takes place between subjects dealt with in <strong>the</strong> law and those whodeal with <strong>the</strong> law. In this way, legality is free from preconceived reality; it becomesan integrative phenomenon which ’comprises’ experiences <strong>of</strong> individuals andwhich is interpreted in <strong>the</strong> ’common language’ known to all.
5 Sanja Đurđić, LL.M, AssistantFaculty <strong>of</strong> Accommodation BusinessNovi Sad, SerbiaLIBERAL THEORY OF JUSTICE OF JOHN RAWLSAbstract: John Rawls is <strong>the</strong> most important and most influential politicalphilosopher <strong>of</strong> <strong>the</strong> 20 th century. His book The Theory <strong>of</strong> Justice marked <strong>the</strong>turning point in <strong>American</strong> political philosophy, having in mind that it has meritsfor <strong>the</strong> renaissance <strong>of</strong> <strong>the</strong> idea <strong>of</strong> justice in contemporary political philosophy.In this book Rawls explained his liberal <strong>the</strong>ory <strong>of</strong> justice in order to construct amodel <strong>of</strong> a fair individual constitutional and democratic society. However, hehas <strong>of</strong>ten been criticized for dealing with problems in individual societies i.e.constitutional democracy. At <strong>the</strong> same time he has been pointed up to neglect <strong>the</strong>problems <strong>of</strong> justice in international affairs. Rawls was aware that it was necessaryto expand his liberal concept <strong>of</strong> justice with problems <strong>of</strong> fair internationalrelationships, meaning that <strong>the</strong>re was a need to formulate <strong>the</strong> conception <strong>of</strong>international justice. In that way, he made a complete liberal <strong>the</strong>ory <strong>of</strong> justicewhich comprises <strong>the</strong> concept <strong>of</strong> justice for individual democratic society andjustice for individuals as well as <strong>the</strong> concept <strong>of</strong> international justice.Key words: principle <strong>of</strong> justice, basic structure <strong>of</strong> society, justice forindividuals, international justiceThe <strong>American</strong> philosophy from <strong>the</strong> beginning <strong>of</strong> <strong>the</strong> 20 th century is markedby <strong>the</strong> development <strong>of</strong> logical positivism, followed by <strong>the</strong> philosophy <strong>of</strong> language.Theoretical marginalisation <strong>of</strong> ethics and politics was fur<strong>the</strong>r continued, so thatit is significant for <strong>the</strong> whole first part <strong>of</strong> <strong>the</strong> 20 th century. These circumstanceslead to <strong>the</strong> belief that political philosophy was dead. This pessimistic view <strong>of</strong>Anglo-<strong>American</strong> political philosophy was given by Peter Laslett in 1956 whenhe said that ”for now <strong>the</strong> political philosophy is dead in any case” 1 .1P. Laslett: Philosophy, Politics and Society, Oxford, Blackwell, 1956.
Liberal Theory <strong>of</strong> Justice <strong>of</strong> John Rawls 99The turning point and novum in <strong>American</strong> political philosophy was setby <strong>the</strong> capital work <strong>of</strong> John Rawls The Theory <strong>of</strong> Justice, published in 1971. Hetakes <strong>the</strong> credit <strong>of</strong> refuting <strong>the</strong> belief that political philosophy is dead as well as<strong>of</strong> renewing <strong>the</strong> <strong>American</strong> political philosophy <strong>of</strong> <strong>the</strong> seventies in <strong>the</strong> 20 th century.With his work Rawls brought back to life reflections <strong>of</strong> intellectuals about <strong>the</strong>problems <strong>of</strong> justice. Thanks to this, it can be said that he is responsible for <strong>the</strong>renaissance <strong>of</strong> <strong>the</strong> idea <strong>of</strong> justice in <strong>the</strong> contemporary political philosophy.Rawls’ <strong>the</strong>ory <strong>of</strong> justice was born as <strong>the</strong> consequence and reaction to <strong>the</strong>preceding circumstances. Namely, in <strong>the</strong> modern period, <strong>the</strong> dominant ethicaland political <strong>the</strong>ory in western democratic societies was utilitarianism in itsvarious forms. Rawls’ intention was to build an understanding <strong>of</strong> justice whichwould be a reasonably systematic alternative to utilitarianism and more acceptablethan utilitarianism. The main reason for this intention he finds in <strong>the</strong> weakness<strong>of</strong> <strong>the</strong> utilitarian doctrine as <strong>the</strong> basis <strong>of</strong> institutions <strong>of</strong> constitutional democracies.According to Rawls <strong>the</strong> main drawback <strong>of</strong> utilitarianism is considered to be itsaim <strong>of</strong> utmost collective happiness, i.e. utmost balance <strong>of</strong> collective satisfaction<strong>of</strong> all individuals.Rawls’ liberal <strong>the</strong>ory <strong>of</strong> justice was born in <strong>the</strong> course <strong>of</strong> describing politicaland social justice, which would be more acceptable than <strong>the</strong> leading well-knowntraditional concepts. With it he tried to generalize and put on a higher level <strong>of</strong>abstraction <strong>the</strong> traditional <strong>the</strong>ory <strong>of</strong> social agreement, as it was represented in<strong>the</strong> 17 th and 18 th century by John Lock, Jean Jacques Russo and Immanuel Kant.Rawls formulated his <strong>the</strong>ory <strong>of</strong> justice for a specific type <strong>of</strong> subjects. It is,mostly, applied to what is called <strong>the</strong> basic structure <strong>of</strong> society. The society, he hasin mind is a modern constitutional democracy. He considers <strong>the</strong> basic structure<strong>of</strong> society, i.e. an individual constitutional-democratic society to be <strong>the</strong> primarysubject <strong>of</strong> his <strong>the</strong>ory <strong>of</strong> justice. By basic structure <strong>of</strong> society he means basicpolitical, social and economical institutions <strong>of</strong> society and <strong>the</strong> way <strong>the</strong>y fittoge<strong>the</strong>r into a single system <strong>of</strong> social corporation. Rawls differentiates <strong>the</strong>principles <strong>of</strong> justice for individual constitutional-democratic society, i.e. principles<strong>of</strong> justice for <strong>the</strong> basic structure <strong>of</strong> society from principles <strong>of</strong> justice applied toindividuals and <strong>the</strong>ir behavior in special circumstances. The <strong>the</strong>ory <strong>of</strong> justicebecomes complete only when, alongside with <strong>the</strong> principles <strong>of</strong> justice <strong>of</strong> <strong>the</strong> basicstructure <strong>of</strong> society, it also comprises <strong>the</strong> principles <strong>of</strong> justice for individuals. Itis a fact that <strong>the</strong> concept <strong>of</strong> justice for individual constitutional-democraticsociety is <strong>the</strong> ground on which <strong>the</strong> justice for individuals and international justiceis based and fur<strong>the</strong>r developed. His main intention was to establish <strong>the</strong> conditions,
100Sanja Đurđićwhich were necessary for <strong>the</strong> realization <strong>of</strong> a just, and modern constutionaldemocracy. The fulfillment <strong>of</strong> conditions, which makes a modern constitutionaldemocracy just, was found out by Rawls in two principles <strong>of</strong> justice asobjectiveness. These principles which according to him, can provide justice <strong>of</strong><strong>the</strong> basic structure <strong>of</strong> society, are <strong>the</strong> following:1) Every person has an equal right to a completely corresponding scheme<strong>of</strong> equal basic freedoms, which is compatible with a similar scheme <strong>of</strong>freedoms for o<strong>the</strong>rs – a principle <strong>of</strong> utmost equal freedom.2) Social and economical inequality should be rendered so as to satisfytwo principles:a) <strong>the</strong>y have to be connected with <strong>of</strong>fices and positions, which are open toeverybody, under <strong>the</strong> condition <strong>of</strong> just equality <strong>of</strong> possibilities – <strong>the</strong>principle <strong>of</strong> justly equal possibilities.b) <strong>the</strong>y have to be most useful to those members <strong>of</strong> society who are in <strong>the</strong>most unfavorable position – <strong>the</strong> principle <strong>of</strong> difference.The above mentioned principles are primarily applied to <strong>the</strong> basic structure<strong>of</strong> society. They regulate <strong>the</strong> legislation <strong>of</strong> rights and duties, as well as distribution<strong>of</strong> social and economical pr<strong>of</strong>its. The implementation <strong>of</strong> <strong>the</strong> mentioned principles<strong>of</strong> justice into basic political, economical, social institutions would, according toRawls, make <strong>the</strong> society just. The fact <strong>of</strong> fulfillment <strong>of</strong> <strong>the</strong> mentioned principles<strong>of</strong> justice itself would show <strong>the</strong> justice <strong>of</strong> that society. Rawls’ aim was to reconcile<strong>the</strong> ideal <strong>of</strong> freedom with <strong>the</strong> ideal <strong>of</strong> equality, with his concept <strong>of</strong> justice for <strong>the</strong>basic structure <strong>of</strong> society, better to say, its principles <strong>of</strong> justice. The function <strong>of</strong><strong>the</strong> two principles <strong>of</strong> justice would be fulfilled if <strong>the</strong>y influenced <strong>the</strong> basicinstitutions <strong>of</strong> society in order to enable <strong>the</strong> realization <strong>of</strong> <strong>the</strong> values <strong>of</strong> freedomand equality at <strong>the</strong> same time. In that way <strong>the</strong> citizens <strong>of</strong> a modern constitutionaldemocracy would be free and equal personalities.The basic freedoms, <strong>of</strong>fered and guaranteed by <strong>the</strong> first principle, aregiven in <strong>the</strong> form <strong>of</strong> a list. The most important freedoms comprised by <strong>the</strong> list:political freedoms (right to vote and perform public works), toge<strong>the</strong>r with freedom<strong>of</strong> speech and association; freedom <strong>of</strong> consciousness and freedom <strong>of</strong> thought;freedom <strong>of</strong> <strong>the</strong> individual which includes freedom from psychological pressureand physical assault and disintegration (<strong>of</strong> individual’s integrity); right in ownproperty and freedom from false arrest and detention, right and freedomscomprised by <strong>the</strong> rule <strong>of</strong> law. According to <strong>the</strong> principle <strong>of</strong> utmost equal freedom,<strong>the</strong>se basic freedoms should be equal.
Liberal Theory <strong>of</strong> Justice <strong>of</strong> John Rawls 101The second principle <strong>of</strong> justice refers to <strong>the</strong> distribution <strong>of</strong> pr<strong>of</strong>it andwealth and to establishing organizations, which use <strong>the</strong> differences in authorizationand responsibilities. All social values should be distributed equally. Everydeparture from equal distribution <strong>of</strong> pr<strong>of</strong>it and wealth is allowed only if <strong>the</strong>uneven distribution is beneficial for everybody. Inequality, which is not beneficialfor everybody, represents injustice. At <strong>the</strong> same time <strong>the</strong> positions <strong>of</strong> authorityand responsibility have to be available to everybody. The second principlerequires <strong>the</strong> positions to be open, meanwhile <strong>the</strong> economical and social inequalityare regulated to bring pr<strong>of</strong>it to everybody.Reasons which give advantage to his principles <strong>of</strong> justice in comparisonwith <strong>the</strong> o<strong>the</strong>rs from <strong>the</strong> list <strong>of</strong>fered to <strong>the</strong> participants in <strong>the</strong> original positionaccording to Rawls are: condition <strong>of</strong> generality, universality in application,limitations <strong>of</strong> information; understanding <strong>of</strong> <strong>the</strong> parties who have certain basicinterests which have to be protected if possible and that as free individuals <strong>the</strong>yhave a highest ranking interest to preserve <strong>the</strong>ir freedom to modify andimprove <strong>the</strong>se aims. He is certain that <strong>the</strong> participants <strong>of</strong> <strong>the</strong> original positionwill be in favor <strong>of</strong> his principles <strong>of</strong> justice for <strong>the</strong> mentioned reasons. This isbecause <strong>the</strong>y require equality in regulating basic rights and duties, and because<strong>the</strong>y consider social and economical inequality just, only if, as a consequence<strong>the</strong>y have settlement pr<strong>of</strong>its for everyone, primarily for <strong>the</strong> members <strong>of</strong> societywho are in <strong>the</strong> most unfavorable position. ”Once we decide to look for acomprehension <strong>of</strong> justice which prevents using coincidence <strong>of</strong> natural talent andcoincidence <strong>of</strong> social circumstances as measures <strong>of</strong> political and economicaladvantages” 2 , his two principles <strong>of</strong> justice become inevitable, concludes Rawls.Therefore, he is convinced that his principles <strong>of</strong> justice provide betterunderstanding <strong>of</strong> demand for freedom and equality in a democratic societythan <strong>the</strong>ir alternatives (utilitarianism, perfectionism, intuitionism).In Rawls’ concept <strong>of</strong> justice as objectiveness, after <strong>the</strong> selection <strong>of</strong> principles<strong>of</strong> justice for <strong>the</strong> basic structure <strong>of</strong> society, <strong>the</strong> next thing to do is to select <strong>the</strong>principle <strong>of</strong> justice for individuals. Although <strong>of</strong> secondary and second-instanceimportance, only after considering <strong>the</strong> principles <strong>of</strong> justice for individuals, <strong>the</strong>understanding <strong>of</strong> justice as objectiveness becomes complete. Conferring advantagein <strong>the</strong> choice <strong>of</strong> <strong>the</strong> principle <strong>of</strong> justice for <strong>the</strong> basic structure <strong>of</strong> society is inaccordance with Rawls’ understanding <strong>of</strong> justice as <strong>the</strong> first virtue <strong>of</strong> social2J. Rawls: A Theory <strong>of</strong> Justice, Harvard University Press, Cambridge, 1971 (Serbian translationwill be used in <strong>the</strong> text, Dž. Rols: Teorija pravde, CID, Podgorica, 1998, 21).
102Sanja Đurđićinstitutions, i.e. with <strong>the</strong> social nature <strong>of</strong> <strong>the</strong> virtue <strong>of</strong> justice and its tightconnection with social practice. The principles <strong>of</strong> justice for individuals, as wellas principles <strong>of</strong> justice for <strong>the</strong> basic structure <strong>of</strong> society are <strong>the</strong> subject <strong>of</strong> genuineagreement in <strong>the</strong> original position. They are, also understood as a result <strong>of</strong> ahypo<strong>the</strong>tical agreement. As in <strong>the</strong> case <strong>of</strong> <strong>the</strong> selection <strong>of</strong> <strong>the</strong> principles <strong>of</strong> justicefor <strong>the</strong> basic structure <strong>of</strong> society, <strong>the</strong> selection <strong>of</strong> <strong>the</strong> principles <strong>of</strong> justice forindividuals is done from a short list <strong>of</strong> traditional and well-known principles.The selection <strong>of</strong> <strong>the</strong> principles <strong>of</strong> justice for individuals is significantly simplifieddue to <strong>the</strong> fact that <strong>the</strong> principles <strong>of</strong> justice for <strong>the</strong> basic structure <strong>of</strong> society, havealready been adopted. Namely, <strong>the</strong> <strong>of</strong>fered alternatives are limited only to those,which are compatible with <strong>the</strong> two principles <strong>of</strong> justice for <strong>the</strong> basic structure <strong>of</strong>society. The principles <strong>of</strong> justice for individuals set <strong>the</strong>ir institutional relationshipson one hand, and <strong>the</strong> way individuals become engaged with each o<strong>the</strong>r on <strong>the</strong>o<strong>the</strong>r hand. It is necessary to choose <strong>the</strong> principles <strong>of</strong> justice for individuals,which are in accordance with <strong>the</strong> principles for <strong>the</strong> basic structure <strong>of</strong> society.Rawls divides <strong>the</strong> principles <strong>of</strong> justice into requirements and permissions.Requirements comprise obligations and natural duties. By obligations he means<strong>the</strong> principle <strong>of</strong> justice and good faith. Natural duties are divided into positiveand negative. As examples <strong>of</strong> positive natural duties he quotes: supporting <strong>of</strong>justice, mutual help, and mutual respect. Under negative natural duties he means:duty <strong>of</strong> not doing wrong, duty <strong>of</strong> not harming <strong>the</strong> innocent and so on. Havingin mind that Rawls limits his discussion on <strong>the</strong> <strong>the</strong>ory <strong>of</strong> social justice, he is lessinvolved with <strong>the</strong> o<strong>the</strong>r kind <strong>of</strong> principle for individuals – permissions.This is because permissions are actions left at <strong>the</strong> free disposal <strong>of</strong> individualsto be or not to be done. These actions do not disturb any <strong>of</strong> <strong>the</strong> obligations ornatural duty. Permissions are divided into indifferent i.e. morally indifferentand over-duty permissions. By over-duty acts he means acts <strong>of</strong> benevolence andmercy, heroism and self-sacrifice. They are not required because <strong>the</strong>y are nei<strong>the</strong>rsomebody’s duty nor obligation. The individual who has performed an over--duty act has not invoked a challenge permitted by natural duties because <strong>of</strong> asignificant loss or risk for <strong>the</strong> one performing such an act.Rawls has <strong>of</strong>ten been criticized for dealing with problems <strong>of</strong> justice in anindividual society, i.e. in a constitutional democracy. At <strong>the</strong> same time, it hasbeen pointed out that he neglects problems <strong>of</strong> justice in international relationships.Well aware <strong>of</strong> <strong>the</strong> limitations <strong>of</strong> his <strong>the</strong>ory <strong>of</strong> justice, Rawls developed andadded onto, <strong>the</strong> concept <strong>of</strong> international justice. He did it in his book: The Law<strong>of</strong> Peoples, published in 1999. With this extention <strong>of</strong> his liberal <strong>the</strong>ory <strong>of</strong> justice,
Liberal Theory <strong>of</strong> Justice <strong>of</strong> John Rawls 103he explains <strong>the</strong> 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 <strong>the</strong> behavior <strong>of</strong> countries withagreement learning and <strong>the</strong> explanation <strong>of</strong> <strong>the</strong> moral basis <strong>of</strong> internationaljustice 3 . In that way, he formulated <strong>the</strong> concept <strong>of</strong> international justice alongsidewith <strong>the</strong> concept <strong>of</strong> justice for <strong>the</strong> basic structure <strong>of</strong> society and justice forindividuals.Rawls’ concept <strong>of</strong> international justice extends <strong>the</strong> idea <strong>of</strong> social agreementfrom <strong>the</strong> basic structure <strong>of</strong> society to <strong>the</strong> society <strong>of</strong> people. So it comes intobeing by extending <strong>the</strong> liberal idea <strong>of</strong> justice. At <strong>the</strong> 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 <strong>the</strong> society <strong>of</strong> people Rawls means all peoples who in internationalrelationships respect ideals and principles <strong>of</strong> international justice. Those peoplescan be: liberal and non liberal but decent peoples. Tyrant and dictator regimescannot, according to Rawls, be accepted as respectable members <strong>of</strong> a reasonablesociety <strong>of</strong> peoples.Rawls would consider <strong>the</strong> aim <strong>of</strong> <strong>the</strong> concept <strong>of</strong> international justicecompletely achieved if all societies could constitute ei<strong>the</strong>r liberal or decentregimes. Therefore, <strong>the</strong> purpose <strong>of</strong> Rawls’ concept <strong>of</strong> international justice is <strong>the</strong>possibility <strong>of</strong> establishing a reasonably just society <strong>of</strong> peoples, which wouldcomprise liberal democratic and decent peoples.In <strong>the</strong> course <strong>of</strong> creating <strong>the</strong> concept <strong>of</strong> international justice as well asduring <strong>the</strong> creation <strong>of</strong> <strong>the</strong> concept <strong>of</strong> justice for individual liberal democraticsocieties, Rawls used <strong>the</strong> <strong>the</strong>ory <strong>of</strong> social agreement, better to say, an expressionhe calls original position. In <strong>the</strong> original position, under <strong>the</strong> veil <strong>of</strong> ignorance, <strong>the</strong>rational representatives <strong>of</strong> peoples fairly set <strong>the</strong> basic conditions <strong>of</strong> cooperationbetween peoples who are as liberal people treated as free and equal. The maintask <strong>of</strong> <strong>the</strong> rational representatives <strong>of</strong> peoples in <strong>the</strong> original position is toconstitute <strong>the</strong> concept <strong>of</strong> international justice, its ideals, principles and standardsas well as to set <strong>the</strong> way its standards are applied to political relationships between3Dž. Rols: Teorija pravde, 343; see our unpublished M.A. <strong>the</strong>sis: Liberalna teorija pravde DžonaRolsa (Liberal Theory <strong>of</strong> Justice <strong>of</strong> John Rawls) defended at <strong>the</strong> Faculty <strong>of</strong> Law in Novi Sad, 2004.
104Sanja Đurđićpeoples. In that way, <strong>the</strong> principles <strong>of</strong> international justice derive from <strong>the</strong> originalposition according to Rawls.Rawls claims that <strong>the</strong> representatives <strong>of</strong> decent hierarchic peoples willadopt <strong>the</strong> same concept and principles <strong>of</strong> international justice just like <strong>the</strong>representatives <strong>of</strong> liberal peoples. In that way <strong>the</strong> concept <strong>of</strong> international justiceis achieved for a just political society <strong>of</strong> well-regulated peoples 4 .The principles <strong>of</strong> international justice which will be adopted byrepresentatives <strong>of</strong> well-regulated peoples in <strong>the</strong> original position, are determinedby Rawls in <strong>the</strong> following way:1) peoples are free and independent and <strong>the</strong>ir freedom and independenceshould be respected by o<strong>the</strong>r peoples;2) peoples should respect agreements and obligations;3) peoples are equal and <strong>the</strong>y participate in agreements, which are obliging;4) peoples should respect <strong>the</strong> obligation <strong>of</strong> no intervention;5) peoples have <strong>the</strong> right to self-defense, but <strong>the</strong>y do not have <strong>the</strong> right toincite to war out <strong>of</strong> o<strong>the</strong>r 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 <strong>the</strong> duty to help o<strong>the</strong>r peoples who live under unfavorablecircumstances, which prevent <strong>the</strong>m from having a just or decent political andsocial regime.Rawls thinks that <strong>the</strong> mentioned principles enable justice between peoples,i.e. international justice. He claims that <strong>the</strong> eight principles <strong>of</strong> internationaljustice have preponderance among any o<strong>the</strong>r principles. That is why he thinksthat <strong>the</strong> representatives <strong>of</strong> well-regulated peoples probably adopt, exactly <strong>the</strong>seeight principles <strong>of</strong> international justice. Rawls points out that, apart fromagreeing with eight principles <strong>of</strong> international justice, <strong>the</strong> representatives <strong>of</strong>well-regulated peoples will also set <strong>the</strong> principles for creating and establishingorganizations for cooperation as well as standards <strong>of</strong> objectiveness for trade ando<strong>the</strong>r institutions <strong>of</strong> cooperations. Guidelines will be also formulated for regulatingmutual help among peoples as foreseen with <strong>the</strong> last principle <strong>of</strong> internationaljustice.In that way, a complete concept <strong>of</strong> international justice and just politicalrelationships between peoples will be set. From Rawls’ point <strong>of</strong> view liberal anddecent hierarchic peoples would accept <strong>the</strong> same concept <strong>of</strong> international4Dž. Rols: Prava naroda, Beograd, 2001, 68.
Liberal Theory <strong>of</strong> Justice <strong>of</strong> John Rawls 105justice. The eight principles <strong>of</strong> international justice are <strong>the</strong>refore applied towell-regulated peoples who are considered free and equal, which means toliberal and decent hierarchic peoples. According to Rawls, <strong>the</strong> complete concept<strong>of</strong> international justice would comprise reasonable political principles for allpolitically relevant subjects: for free and equal citizens and <strong>the</strong>ir 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 <strong>of</strong> internationaljustice would, according to Rawls, have a ”universal range” because it regulates<strong>the</strong> most comprising political subject: a political society <strong>of</strong> peoples. The concept<strong>of</strong> international justice was formulated by Rawls with <strong>the</strong> aim <strong>of</strong> 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 <strong>the</strong>ory <strong>of</strong> justice, whichapart from justice for individual constitutional-democratic society and justicefor individuals, also comprises international justice.
6 Pr<strong>of</strong>. Branko TucakovNovi Sad, SerbiaJEROME FRANK’S LEGAL REALISMAbstract: The work deals with legal realism <strong>of</strong> Jerome Frank, whosepsychological interpretation <strong>of</strong> <strong>the</strong> law was equaly intrigant when it appeared aswell as it is at <strong>the</strong> beginning <strong>of</strong> <strong>the</strong> third millenium. Since <strong>the</strong>re are very fewtexts in our language concerning legal realism <strong>of</strong> Jerome Frank, our goal was topresent his athorship. Combining Frojd’s psychoanalysis with legal analysiscreating sceptical, reform oriented <strong>the</strong>ory, which reduced to a minimum <strong>the</strong> role<strong>of</strong> precedent in a legal system, where judges have all <strong>the</strong> freedom, Frank contendedthat certainty <strong>of</strong> law did not exist. According to him certainty <strong>of</strong> law is a myth,and source <strong>of</strong> that myth and belief in legal certainty he finds in child psychology.The key role in <strong>the</strong> making and application <strong>of</strong> law is in <strong>the</strong> hands <strong>of</strong> <strong>the</strong> judges,while everything depends mostly from <strong>the</strong>ir psychological characteristics.Forasmuch as analysis <strong>of</strong> individual factors which have influence on adjucationsshow how law really is functioning in <strong>the</strong> society, Frank is <strong>of</strong> opinion that <strong>the</strong>role <strong>of</strong> subjective and objective factors is more important than previouslyformulated normative solutions.Key words: legal realism, constructive scepticism, psychological interpetation<strong>of</strong> law, uncertainty <strong>of</strong> law, basic mythIntroductory RemarksDiscrepancy between <strong>the</strong>ory and practice in <strong>American</strong> Legal Theory at<strong>the</strong> end <strong>of</strong> twenties <strong>of</strong> <strong>the</strong> 20 th century attains its culmination. The necessity forlegal adjustment <strong>of</strong> state intervention and vindication <strong>of</strong> economic policy <strong>of</strong> NewDeal, bred <strong>the</strong> movement <strong>of</strong> legal realism. Although legal realism symboled a wideset <strong>of</strong> about twenty authors having various beliefs and <strong>the</strong>oretical postulates, itis possible to say that most followers <strong>of</strong> <strong>the</strong> movement, above all, rose against lawin books, and looked for solutions in what was really happening in <strong>the</strong> society,
Jerome Frank’s Legal Realism 107with following key topics: uncertainty <strong>of</strong> law, intercession for interdisciplinaryaccess to study <strong>of</strong> law, intercession for legal instrumentalism, apprehensionaccording to which law is an instrument for obtaining social goals and equilibration<strong>of</strong> opposed social interests.Central topic <strong>of</strong> this work is legal realism <strong>of</strong> Jerome Frank 1 and hispsychological interpretation <strong>of</strong> law, as <strong>the</strong>oretician for whose work are most<strong>of</strong>ten related <strong>the</strong> basic postulates <strong>of</strong> legal realism movement, although on <strong>the</strong>contrary <strong>the</strong>re existed a sociological wing conducted by Karl Llewellyn.Emergence <strong>of</strong> Legal Realism MovementBy <strong>the</strong> term ”legal realism” as defined by Brian Leiter 2 , we mean ”<strong>the</strong>intelectual movement in <strong>the</strong> United States <strong>of</strong> America that emerged around agroup <strong>of</strong> pr<strong>of</strong>essors and lawyers during <strong>the</strong> twenties and thirties <strong>of</strong> <strong>the</strong> <strong>20th</strong>century, 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 <strong>of</strong> <strong>the</strong> Roosveltadministration and teacher at University . He wrote six books and numerous o<strong>the</strong>r works.First and most significant work Law and <strong>the</strong> 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 <strong>of</strong> Government in Democracy (1942), Fate and Freedom. APhilosophy for Free <strong>American</strong>s (1945.), Courts on Trial, Myth and Reality in <strong>American</strong> Justice(1949.), he worked to <strong>the</strong> 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. <strong>of</strong> 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 <strong>the</strong> Founders <strong>of</strong> Legal Pragmatism”,Rutgers Law Review 9 (1954.), and even one under name Anon Y. Mous, ”The Speech <strong>of</strong>Judges: A Dissenting Opinion”, 20 Va. L. Rev. 625 (1943.).2Brian Leiter, pr<strong>of</strong>essor at Faculty <strong>of</strong> Law, University <strong>of</strong> Texas, states this determinant <strong>of</strong>legal realism in: Brian Leiter, Legal realism, in: A Companion to Philosophy <strong>of</strong> Law and LegalTheory, ed. Dennis Patterns, Oxford, 1996, 261 item3This number <strong>of</strong> ”realists” principally concurs with o<strong>the</strong>r authors, exception is Kevin Meckeywho made a list <strong>of</strong> over 40 followers <strong>of</strong> that movement. See: Kevin Meckey: Triumph <strong>of</strong>Legal Realism MSC/DCL, 2004, 14 item, at site: http://www.law.msu.edu
108Branko TucakovAccording to Leiter, legal realism is ”<strong>the</strong> most important domestic jurisprudentmovement in <strong>the</strong> USA <strong>of</strong> <strong>the</strong> <strong>20th</strong> century” 4 , which had an enormous impact,not only on <strong>the</strong> <strong>American</strong> legal educational system, but also on <strong>the</strong> reform <strong>of</strong>law and advocacy.Realism rose against, up to that time prevailing ”mechanical jurisprudence”,i.e. ”formalism”, which had a stronghold at Harvard, where Christ<strong>of</strong>er Langdellfavored <strong>the</strong> 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 <strong>of</strong>fice, not an experience acquiredin work with people, not an experience from adjucation or arguments fromlitigations, not experience, in short, <strong>of</strong> application <strong>of</strong> law, but <strong>the</strong> experienceacquired by studying law”. 5 Instead <strong>of</strong> formalist apprehension, according towhich judges make decisions on <strong>the</strong> basis <strong>of</strong> legal rules, <strong>the</strong>re emerges <strong>the</strong>movement <strong>of</strong> realists with its central <strong>of</strong>fice at Columbia and Yale Universities,which favored a standpoint that from empirical observances, in a way courtsreally make adjucations, it ensues that <strong>the</strong>y do not do that (primarily) strictlyapplying law, but on <strong>the</strong> basis <strong>of</strong> <strong>the</strong>ir feeling for justice, all on <strong>the</strong> basis <strong>of</strong>presented facts in a certain case. Although realists avoided to give a definition<strong>of</strong> law, it is characteristic for <strong>the</strong>m to look upon law as a set <strong>of</strong> appropriate socialfacts, under what <strong>the</strong>y mean <strong>the</strong> appropriate human behaviour (<strong>of</strong> judges aboveall), depending on ideas and standpoints having influence on that behaviourand which motivate it. 6 Permanent topic <strong>of</strong> realists is uncertainty <strong>of</strong> law, that is4Leiter avoids to speak about Scandinavian realism, referring to it as a ”relative”, whichessentially differs from <strong>the</strong> <strong>American</strong>. He says that <strong>American</strong> realists were lawyers (includingfew scholars), and not philosophers, meaning that <strong>the</strong>ir field <strong>of</strong> interest was essentiallydifferent from that <strong>of</strong> Scandinavian colleagues. Common characteristics <strong>of</strong> two realisms, hefinds in <strong>the</strong> fact that all <strong>of</strong> <strong>the</strong>m shared <strong>the</strong> same intellectual culture <strong>of</strong> positivism, in terms <strong>of</strong>that in natural sciences <strong>the</strong>y saw a paradigm for whole scientific ascertainment, so <strong>the</strong>y alsobelieved that social sciences, including law, would approximate methods <strong>of</strong> natural sciences.5Jerome Frank: Courts on Trial, Myth and Reality in <strong>American</strong> Justice, Princeton, NewJersey, 1973, item 225.6Almost all realists set from opinion formulated by Oliver Wendel Holmes in his text ”ThePath <strong>of</strong> <strong>the</strong> Law”: ”Prospecting <strong>of</strong> what courts will do, and nothing more pretencious, is whatI take for law.”
Jerome Frank’s Legal Realism 109why it is according to <strong>the</strong>ir opinion neccessary <strong>the</strong> explanation <strong>of</strong> judicial practiceto be sought behind <strong>the</strong> law itself. In that attempt two wings <strong>of</strong> realism weredistinguished – sociological 7 and idiosyncratic 8 . Followers <strong>of</strong> sociological wingbelieve that judicial adjucations, after all, fall under provident patterns, and thatdifferent social powers have influence on judges, as well as that <strong>the</strong>y force <strong>the</strong>mto look at <strong>the</strong> facts in a similar and predictable ways. Followers <strong>of</strong> idiosyncraticwing, first <strong>of</strong> all Jerome Frank, higlight that idiosyncratic facts about psychologyand character <strong>of</strong> that judge influence <strong>the</strong> judge’s adjucation. Consequently ”if<strong>the</strong> personality <strong>of</strong> judge is <strong>the</strong> pivotal factorin law administration, <strong>the</strong>n law mayvary with <strong>the</strong> personality <strong>of</strong> <strong>the</strong> judge who happens to pass upon any givencase.” 9 For ”<strong>the</strong> peculiar traits, disposition, biases and habits <strong>of</strong> <strong>the</strong> particularjudge will, <strong>the</strong>n, <strong>of</strong>ten determinate what he dicides to be <strong>the</strong> law”. 10Frank’s Concept <strong>of</strong> LawIn his works Frank exemplified reasons for avoiding to define law, andinstead <strong>of</strong> that spoke that law does not consists <strong>of</strong> regulations at all, but only<strong>of</strong> total sum <strong>of</strong> individual adjucations. Never<strong>the</strong>less, at <strong>the</strong> beginning <strong>of</strong> hisauthorship, in a book Law and <strong>the</strong> Modern Mind, he states: ”we may now venturea rough definition <strong>of</strong> law from <strong>the</strong> point <strong>of</strong> view <strong>of</strong> <strong>the</strong> average man: For anyparticular lay person, <strong>the</strong> law, with respect to any particular set <strong>of</strong> facts, is adecision <strong>of</strong> 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, <strong>the</strong> only law available is <strong>the</strong> opinion<strong>of</strong> lawyers as to <strong>the</strong> 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, <strong>the</strong>n, as toany given situation is ei<strong>the</strong>r (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 <strong>of</strong> that wing is Jerome Frank9Jerome Frank: Law and <strong>the</strong> Modern Mind, Brentano’s Publishers, New York, 1930, 11110Ibid, 11111J. Frank: Law and <strong>the</strong> Modern Mind, Brentano’s Publishers, New York, 1930, 46. In hiswork Courts on Trial... (1949), Frank says he will avoid to use <strong>the</strong> work law, and that he will”instead talk (1) about what courts really do, (2) what courts should do, (3) if <strong>the</strong>y do what<strong>the</strong>y should be doing, and (4) if <strong>the</strong>y should do what <strong>the</strong>y should do”.
110Branko Tucakovmistake so early as <strong>the</strong> following year Frank disowns that definition in one <strong>of</strong><strong>the</strong> texts 12 , and restores it later, this time speaking about statutory law, for wha<strong>the</strong> says it means ”ei<strong>the</strong>r (1) what a court has already ordered in a past law-suitrelating to that specific man’s rights; or (2) – and this is <strong>the</strong> usual situation – whatsome court, somewhere, may order, some day in <strong>the</strong> future, in a specific law-suitrelating to that man’s specific rights.” 13Key role in <strong>the</strong> making <strong>of</strong> law is in <strong>the</strong> hands <strong>of</strong> <strong>the</strong> judge, who alludesto existing regulations and previous adjucations, but <strong>the</strong> ascertainment <strong>of</strong> <strong>the</strong>facts 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 <strong>the</strong> characteristics <strong>of</strong> <strong>the</strong> judge. Having in mind thatwhen making adjucations <strong>the</strong> judge makes <strong>the</strong> law, legal regulations are in thatcase only <strong>the</strong> means, which equal with o<strong>the</strong>r means, for according to Frank’sopinion ”all legal rules, principles, precepts, concepts. standards, – all generalizedstatements <strong>of</strong> 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 <strong>the</strong>ory on <strong>the</strong> fact that uncertainty is myth, in whichbelieve, even <strong>the</strong> lawyers and judges; that is why his work was directed towarddiscomfituring that basic myth, belief about legal uncertainty and legal certainty.Base <strong>of</strong> that myth Frank founds in child psychology and by analyzing <strong>the</strong> process<strong>of</strong> maturation, forming and socialization <strong>of</strong> personality, he gives an explanationhow it reflects to <strong>the</strong> attitude toward law. So it is neccessary, in order to understand<strong>the</strong> reasons <strong>of</strong> various illusions grown-up persons have, to advert to developmentalphases <strong>of</strong> childhood. Adopted habit <strong>of</strong> obedience (to authority) in childhoodwill, basicly, determine a relation <strong>of</strong> man toward various aspects <strong>of</strong> power, toward12J. Frank, Are Judges Human?, University <strong>of</strong> Pensilvania Review, 80, 193113J. Frank, Courts on Trial, Myth and Reality in <strong>American</strong> Justice, Princeton, New Jersey,1973, 914J. Frank: Law and <strong>the</strong> Modern Mind, Brentano’s Publishers, New York, 1930, 167
Jerome Frank’s Legal Realism 111acceptance and fullfilment <strong>of</strong> orders, and form an attitude toward obeyance <strong>of</strong>moral and legal norms. Hence childhood is a period in which some <strong>of</strong> naturalbrakes and value structures are formed, what in future life makes a natural framefor obeyance <strong>of</strong> 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 <strong>the</strong>re exist unexpected andunpredictable phenomena which it cannot control and over which it cannotgovern, and <strong>the</strong>n 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 <strong>of</strong> life.Parents are almighty and knowledgeable. 16 ”If <strong>the</strong> child can no longerbelieve himself capable <strong>of</strong> controlling <strong>the</strong> 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 <strong>of</strong>fer 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 mo<strong>the</strong>r represents familiarity, tenderness, help andunderstanding to which a child can always return, Frank says, and alludes towritting <strong>of</strong> Malinovski, 18 that fa<strong>the</strong>r is <strong>the</strong> one having a role <strong>of</strong> final arbiter,posessing strength and authority and who at times from <strong>the</strong> role <strong>of</strong> tender andprotective friend, transforms and accepts a position <strong>of</strong> stern judge and firmexecutor <strong>of</strong> law.By maturation a childconfronts with knowledge that <strong>the</strong> fa<strong>the</strong>r is notalmighty and knowledgeable as he has appeared up to <strong>the</strong>n, again <strong>the</strong>re arisesfear and uncertainty, as well as <strong>the</strong> need for proximity <strong>of</strong> someone who could bea substitute for a fa<strong>the</strong>r. In <strong>the</strong> role <strong>of</strong> a substitute <strong>the</strong>re appear: prists, judges,leaders in a group... but <strong>the</strong>y are not almighty, <strong>the</strong>y dissapoint a child, while <strong>the</strong>need for fa<strong>the</strong>r authority remains. Inasmuch even by grown-ups <strong>the</strong>re is anecessity for safety, in that role appears <strong>the</strong> law. Naive belief <strong>of</strong> <strong>the</strong> child in15Kartag-Odri A.: Stvaranje i primena prava – pravno psihološki aspekti, Stvaranje prava,Treći skup Jugoslovenskog udruženja za teoriju, filoz<strong>of</strong>iju i sociologiju prava, Miločer, 24-25 September , 1999; Memoir edited by D. Mitrovcić, Beograd, 200016J. Frank: Law and <strong>the</strong> Modern Mind, Brentano’s Publishers, New York, 1930, 1317Ibid, 1418Ibid, 15
112Branko Tucakovalmightiness <strong>of</strong> <strong>the</strong> fa<strong>the</strong>r to overcome chaos and dangers <strong>of</strong> <strong>the</strong> world, nowbecomesbelief, that arises in a myth, that it is achievable through legal system,through its authority, determiness and predictability. Never<strong>the</strong>less, according toFrank’s opinion this is not <strong>the</strong> only, nei<strong>the</strong>r <strong>the</strong> complete explanation <strong>of</strong> basicmyth about absoluteness, safety and predictability <strong>of</strong> <strong>the</strong> law, because <strong>the</strong>re areo<strong>the</strong>r factors which have influence. People have not abandoned a childish need forauthoritative fa<strong>the</strong>r, and <strong>the</strong> features once attributed to him, such as determiness,safety, certainty and impeccability, unconsciously try to find in law. Because,”society is made up <strong>of</strong> persons all <strong>of</strong> whom now are, or recently were, children.” 19That psychological need for safety is <strong>the</strong> most important factor <strong>of</strong> <strong>the</strong> concept <strong>of</strong>law, which is nei<strong>the</strong>r safe, nor determined, nor predictable, but we believe it tobe such, because <strong>of</strong> psychological need for determiness and safety, i.e., we expect<strong>the</strong> law to be such. At <strong>the</strong> beginning a society was childish , because human mindwas unmatured, where magic prevailed.Now, instead <strong>of</strong> magic words advocated by primitive man, modern childishman calls for legal rules or some o<strong>the</strong>r uniformity which leads to uniformity injudicial rules. 20However, Frank says ”modern civilization demandes a mind free <strong>of</strong> fa<strong>the</strong>r--governance. To remain fa<strong>the</strong>r-governed un adult years is peduliarly <strong>the</strong> modernsin. The modern mind is a mind free <strong>of</strong> childish emotional drags, a mature mind.And law, if it is to meet <strong>the</strong> needs <strong>of</strong> modern civilization must adapt itself to <strong>the</strong>modern mind. It must cease to embody a philosophy opposed to change. It mustbecome avowedly pragmatic. Ro this end <strong>the</strong>re must be developed a recognitionand elimination <strong>of</strong> <strong>the</strong> carry-over <strong>of</strong> <strong>the</strong> childish dread <strong>of</strong>, and respect for,paternal omnipotence; that dread and respect are powerful strongholds <strong>of</strong>resistance to change. Until we become thoroughly cognizant <strong>of</strong>, and cease to becontrolled by, <strong>the</strong> image <strong>of</strong> <strong>the</strong> fa<strong>the</strong>r hidden away in <strong>the</strong> authority <strong>of</strong> <strong>the</strong> law,we shall not reach that first step in <strong>the</strong> civilized administration <strong>of</strong> justice, <strong>the</strong>recognition that man is not made for <strong>the</strong> law, but that law is made by and formen.” 2119J. Frank: Law and <strong>the</strong> 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 <strong>the</strong> Modern Mind, Brentano’s Publishers, New York, 1930, 252
Jerome Frank’s Legal Realism 113Making <strong>of</strong> <strong>the</strong> LawAccording to Frank, law is made at court, that is it is made by judge . 22Traditional <strong>the</strong>ory explored what judges do at higher courts , that is too narrowfor considering <strong>the</strong> problem, because <strong>the</strong>y neglect what really is happening ato<strong>the</strong>r, lower courts, as well as <strong>the</strong> fact how <strong>the</strong> actual relation between parties ina process looks like. Besides, not only legal rules are those that decide on finaladjucation, but <strong>the</strong> judge, and that decision depends on his personality. 23Frank does not deny that, never<strong>the</strong>less, <strong>the</strong>re exist legal norms and that <strong>the</strong>y areone <strong>of</strong> <strong>the</strong> sources <strong>of</strong> law, but observes <strong>the</strong>re are two ”legislatives” (legislativeand judicial), 24 while besides rules made and verified by parliament, court alsotakes part in making <strong>the</strong> law. Like <strong>the</strong> legislation by applying legal regulationsgoverns opposed interests, that is <strong>the</strong> way a judge behaves when making rulesmade by judge. 25 Legal norms, according to Frank, regardless <strong>of</strong> <strong>the</strong> fact if <strong>the</strong>yare comprised in laws, precedents, or o<strong>the</strong>r legal regulations, stay only emptywords, because content and life was given by court when solving litigation indispute. About legislation he spoke without sympathies: ”here, <strong>the</strong> judges felt, isa stable body <strong>of</strong> rules which create legal certainty. We, ourselves, seldom changeany <strong>of</strong> <strong>the</strong>m, and <strong>the</strong>n only after <strong>the</strong> most careful consideration. But, <strong>the</strong>legislature makes new rules, frequently without adequate consideration, whichupset legal certainty. The legislatures do <strong>the</strong>ir work capriciously, superficially,on <strong>the</strong> basis <strong>of</strong> <strong>the</strong> limited subjective impressions <strong>of</strong> a few members <strong>of</strong> a legislativecomittee. Why should we greatly repect such shoddy products?” 26 Frank saysfor himself he is a reformist, he sees mistakes in which <strong>American</strong> judiciaryfalled into, but that he has no illusions regarding <strong>the</strong> fact that law proceedingscan be made perfect. 27 As he wrote during turbulent events in America, he waswitness <strong>of</strong> agony <strong>of</strong> judiciary, which found itself at stroke <strong>of</strong> social events and itsconservative judges (from High Court). All that influenced Frank in his postulate<strong>of</strong> law to see it as a battle, and in connection with that ”litigation is a kind <strong>of</strong>22Ibid, 12623See: Jes Bjarup: Rättsteori och rättordning, Stockholm, 2004, 16424J. Frank: Courts on Trial, Myth and Reality in <strong>American</strong> Justice, Princeton, New Jersey,1973, 26225Ibid, 26526J. Frank: Courts on Trial, Myth and Reality in <strong>American</strong> Justice, Princeton, New Jersey,1973, 29227Ibid, 2
114Branko Tucakovfight or battle”, that is being on at court in front <strong>of</strong> and under <strong>the</strong> control <strong>of</strong> <strong>the</strong>judge. 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 <strong>of</strong> judges come to expression, <strong>the</strong>ir 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 Sou<strong>the</strong>rners, or Italians, or Englishmen, or plumbers, or ministers, orcollege graduates, or Democrats.” 29 But, even a certain type <strong>of</strong> pronounciation,coughing or gestures, as well as any o<strong>the</strong>r type <strong>of</strong> 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 <strong>the</strong>ory” believes that ”Rule plus Facts = Decision”,while his attitude that ”Inducements having influence upon judges” plus”Character <strong>of</strong> <strong>the</strong> judge = Decision”. 30 From frojdisms, that had <strong>the</strong> largestinfluence on Frank’s <strong>the</strong>ory, and according which <strong>the</strong> key <strong>of</strong> <strong>the</strong> character liesin buried depths <strong>of</strong> unconscious, ensues it is in vain giving judges normativeadvices, i.e., telling <strong>the</strong>m <strong>the</strong>y should do it o<strong>the</strong>r way. That is why <strong>the</strong> predictionod judge’s decision is mostly impossible. Wish <strong>of</strong> <strong>the</strong> lawyers and citizens tothink differently only images infantile wish for reliability and security andreturns to basic myth.Appliance <strong>of</strong> Law and Enlargement <strong>of</strong> Its UncertaintyLegal uncertainty comes to even larger expression when facts are beingestablished through a witness, because testimony <strong>of</strong> <strong>the</strong> witness is always under<strong>the</strong> influence <strong>of</strong> his experience, personal characteristics and prejudices, and is<strong>of</strong>ten selective. Testification becomes less reliable, even by most sincere witnesses,28J. Frank: Courts on Trial, Myth and Reality in <strong>American</strong> Justice, Princeton, New Jersey,1973, 829J. Frank: Law and <strong>the</strong> Modern Mind, Brentano’s Publishers, New York, 1930, 10630J. Frank: Are Judges Human? University <strong>of</strong> Pennsylvania Review, 80, 1931, 242
Jerome Frank’s Legal Realism 115with passing <strong>of</strong> time from <strong>the</strong> events for which facts are being established. 31Many witnesses feel unconveniently in that role at court, and under psychicalstress <strong>the</strong>ir testimony is not reliable. 32 Judge is as historian, while <strong>the</strong> event thatcame into court happened in <strong>the</strong> past and a judge ascertains facts post festum,during which <strong>the</strong>re occur testimonies <strong>of</strong> witnesses between him and those events.Wintesses do not reproduce mechanically what <strong>the</strong>y saw, heard or experienced,but <strong>the</strong>y subjectively speak about <strong>the</strong> facts concerning <strong>the</strong> event. Hence, it isneccessary for <strong>the</strong> judges to know well not only <strong>the</strong> law, but psychology as well. 33While ”primitive man could say that legal rights were on <strong>the</strong> knees <strong>of</strong> <strong>the</strong>gods. We must say that <strong>the</strong>y are on <strong>the</strong> knees <strong>of</strong> men – <strong>of</strong> <strong>the</strong> trial judges or <strong>the</strong>juries.” 34 That is where we come to ano<strong>the</strong>r myth <strong>of</strong> <strong>American</strong> judiciary -jury,its role in <strong>the</strong> individualisation <strong>of</strong> punishment and legal certainty. According to<strong>of</strong>ficial or naive <strong>the</strong>ory, says Frank, when a certain case is being discussed in front<strong>of</strong> <strong>the</strong> judge and jury, roles are clearly defined, in a way that a judge applies law,while jury is left to validate facts and what <strong>the</strong> judge proclaims for law, must beaccepted by jury as totaly authoritative. 35But in practice it is shown that it is not <strong>the</strong> case, while after pro<strong>of</strong>s areheard, <strong>the</strong> judge gives jury, ”instruction about <strong>the</strong> law”, explaining what legalconsequences are if jury decides for one or <strong>the</strong> o<strong>the</strong>r facts. In that way <strong>the</strong> 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 <strong>the</strong>irconcept, and on <strong>the</strong> o<strong>the</strong>r hand, <strong>the</strong>y need not explain that decisions. Accordingto <strong>the</strong> <strong>the</strong>ory favoured by realists, says Frank, in many cases, jury without payingattention to legal rules, sets down not ”facts”, but corresponding legal rights andduties <strong>of</strong> <strong>the</strong> parties in a process. 36 From that ensues that instead <strong>of</strong> judicial law,we have law made by jury, what leads to total unpredictability and uncertainty<strong>of</strong> <strong>the</strong> outcome <strong>of</strong> adjucation and law in which jury takes part. 37 So decisions in31J. Frank: Courts on Trial, Myth and Reality in <strong>American</strong> Justice, Princeton, New Jersey,1973, 17 item32J. Frank: Law and <strong>the</strong> Modern Mind, Brentano’s Publishers, New York, 1930, item 20633Ibid, 14734J. Frank: Courts on Trial, Myth and Reality in <strong>American</strong> Justice,Princeton, New Jersey,1973, 5035J. Frank: Law and <strong>the</strong> Modern Mind, Brentano’s Publishers, New York, 1930, 17036J. Frank, Courts on Trial, Myth and Reality in <strong>American</strong> Justice, Princeton, New Jersey,1973, 11137J. Frank: Law and <strong>the</strong> Modern Mind, Brentano’s Publishers, New York, 1930, 173
116Branko Tucakovmany cases are instead <strong>of</strong> judges, being made by a dozen <strong>of</strong> uncompetent laymen,full <strong>of</strong> caprice and prejudices. 38Final ConsiderationsFrank and <strong>the</strong> <strong>American</strong> Legal Realism were at <strong>the</strong> stroke <strong>of</strong> criticism that<strong>the</strong>y disregarded <strong>the</strong> ethical aspect <strong>of</strong> law and its relevance to morality. Frank inhis answer to criticisms, tried to insert natural-law elements in his <strong>the</strong>oryexplaining that by words ”I do not understand how any decent man today canrefuse to accept, as a corner-stone <strong>of</strong> modern civilisation, <strong>the</strong> basic principles <strong>of</strong>Natural law, concerning human behaviour, as it is stated by Thomas Aquinas.” 39That attempt <strong>of</strong> insertion <strong>of</strong> natural-law elements in his <strong>the</strong>oreticalpostulate, was Frank’s defence <strong>of</strong> realism and his scepticism, from attacks thatfollowed, which were sharpest exactly from followers <strong>of</strong> 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 <strong>of</strong> democracy and by its scepticism can generate only confusion, splitting,fear and desperation, playground in each nation for demagogues, s<strong>of</strong>ists anddictators. 42Frank did not have a firm empirical backing for his standpoint, (e.g.: onforeboding based decision-making and <strong>the</strong> role <strong>of</strong> personal element), 43 so it wasobjected by his colleagues, followers <strong>of</strong> so-called sociological wing <strong>of</strong> legalrealism, who highlighted that Frank’s assumptions were not reliable, acceptingpredictability <strong>of</strong> many things courts do. So Lewellyn, <strong>the</strong> 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 <strong>of</strong> management body at Faculty <strong>of</strong> Law in Georgetown and pr<strong>of</strong>essor<strong>of</strong> philosophy and jurisprudence41See: George J. Marlin THE POLITICIAN’S GUIDE to Assisted Suicide, Cloning, and O<strong>the</strong>rCurrent Controversies, on site: http//www.ewtn.com/library/HUMANITY/PGUIDE.HTM42See: George J. Marlin THE POLITICIAN’S GUIDE to Assisted Suicide, Cloning, and O<strong>the</strong>rCurrent Controversies, on site: http:/www.ewtn.com/library/HUMANITY/PGUIDE.HTM43Brian Leiter: <strong>American</strong> Legal Realism, The University <strong>of</strong> Texas School <strong>of</strong> Law, Public Lawand Legal Theory Research Paper No. 042, October 2002, 19
Jerome Frank’s Legal Realism 117follower <strong>of</strong> realism besides Frank, did not miss <strong>the</strong> opportunity to make a criticalcomment, saying that in his aiming to unveil <strong>the</strong> illusion <strong>of</strong> legal certainty andpredictability, Frank made <strong>the</strong> 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 <strong>the</strong>ir clients about probableoutcome <strong>of</strong> litigation, <strong>of</strong>ten Frank’s concept was taken for determiningstandpoints <strong>of</strong> <strong>the</strong> followers <strong>of</strong> realism movement. In order to understate <strong>the</strong>significance and role <strong>of</strong> Frank in <strong>American</strong> jurisprudence critics <strong>of</strong> realismcontrived a legend about <strong>the</strong> fact that acccording to his assumption ”judge’sdecision can depend on what <strong>the</strong> judge had for breakfast”. 45 Against realismreacted not only scholars in America, political opposers, jurists (pr<strong>of</strong>essors) atchatolic univerisites, but also <strong>the</strong>oreticians in Europe. By criticising Frank’s<strong>the</strong>ory, Gurvic says it is ”enough to say that no kind <strong>of</strong> individual psychology isgenerally, able to make a contact with problems <strong>of</strong> law as phenomenon which,in fact, is a collective experience and which is related to social whole.” 46 Upondeficiency <strong>of</strong> Frank’s <strong>the</strong>ory, and standpoint about certainty <strong>of</strong> law as a myth,pointed out Norberto Bobio, highlighting ”that advocacy for <strong>the</strong> certainty <strong>of</strong>law is not new, but it is a new way in which <strong>the</strong> author explains his idea, new is<strong>the</strong> extermism <strong>of</strong> Frank who considerations about certainty brings to absurdresults”. 47However, with his <strong>the</strong>ory Jerome Frank not only opened paths towardstudy <strong>of</strong> real social relations, that are being established among court, witnesses,jury, attorneys, clients in litigation, judges, but also disenchanted <strong>the</strong> myth <strong>of</strong>traditional <strong>the</strong>ory, according to which judges are only executors <strong>of</strong> <strong>the</strong> law.Jerome Frank and legal realists with <strong>the</strong>ir belief in legal uncertainty, with <strong>the</strong>iradvocacy for an interdisciplinary approach during <strong>the</strong> study <strong>of</strong> what really ishappening when judge’s decisions are being made (to what extent subjectiveand objective factors influence <strong>the</strong> making <strong>of</strong> <strong>the</strong> law), by <strong>the</strong>ir belief in legalinstrumentalism, <strong>the</strong>y opened doors to several <strong>the</strong>oretical tendencies.”Spirit <strong>of</strong> realism” made immeasurable impact in <strong>American</strong> legal <strong>the</strong>oryand political sciences <strong>of</strong> <strong>the</strong> 20 th century, since not only realists and <strong>the</strong>ir 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 <strong>of</strong> Law), Petrovaradin, 2001, 227
118Branko Tucakovwere popular, 48 but from realism <strong>the</strong>re emerged many schools and movementsin <strong>American</strong> jurisprudence such as: critical legal studies, (movement <strong>of</strong> criticallegal studies, whose characteristic representatives are: Duncan Kennedy,Umberto Unger...), law and economics (law and economy, in <strong>the</strong> beginningknown as economic analysis <strong>of</strong> law, with Richard Posner and Richard Epstein asits main representatives), feminist legal <strong>the</strong>ory, critical race studies, and <strong>the</strong>y alsohad influence on political sciences.Getting <strong>of</strong>f a norm from throne, negating <strong>the</strong> very normative nature <strong>of</strong>law, unclosing old myths, Frank made a new myth – myth about total irationality<strong>of</strong> law, and raised a question about <strong>the</strong> very significance <strong>of</strong> norm as such. Since,”uncertainty, in short, according to realists, does not ensues from <strong>the</strong> rules<strong>the</strong>mselves, but from <strong>the</strong> ways in which we characterize what legal rules andprecedents comprise.” 49 To what extent <strong>the</strong> real interpretation and appliance <strong>of</strong>law is essential, testifies Frank’s comparison <strong>of</strong> law with music, claiming that”legislation is like a composer. It cannot help itself. It must hand over <strong>the</strong>interpretation to o<strong>the</strong>rs, primarily to courts”. 50Therefore, in case we would like in short to give evaluation <strong>of</strong> Frank’swork it should be said that he combined Freud’s psychoanalysis with legalanalyses in order to create a sceptical, reform-oriented <strong>the</strong>ory, that minimized arole <strong>of</strong> a precedent in a legal system, while he represented and supported <strong>the</strong>standpoint judges should have all <strong>the</strong> freedom.48Famous is <strong>the</strong> statement: ”It’s a bona fide conviction that ”we are all [legal] realists now”49B. Leiter: <strong>American</strong> Legal Realism, The University <strong>of</strong> Texas School <strong>of</strong> 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 Pr<strong>of</strong>. Miloš Marjanović, PhDFaculty <strong>of</strong> Law, Novi Sad, SerbiaROSCOE POUND’S SOCIOLOGICALJURISPRUDENCE FROM THE EUROPEANCONTINENTAL PERSPECTIVE(review <strong>of</strong> reception and criticism in Serbian)Abstract: Pound’s significance as a lawyer, his voluminous andmonumental work as well as <strong>the</strong> major role he played in <strong>American</strong> sociologicaljurisprudence had been amply complimented, mostly in superlatives: <strong>the</strong>greatest <strong>American</strong> lawyer, <strong>the</strong> most interesting legal writer and one <strong>of</strong> <strong>the</strong>leading generalists on <strong>the</strong> whole, an encyclopedic monster <strong>of</strong> knowledge, <strong>the</strong>greatest <strong>American</strong> sociologist <strong>of</strong> law, an undisputed leader or <strong>the</strong> synonym<strong>of</strong> sociological jurisprudence... Pound’s sociological jurisprudence representsan attempt <strong>of</strong> <strong>American</strong> legal thinking to keep pace with European sociolegal<strong>the</strong>oretical tradition, but with a dominant influence <strong>of</strong> <strong>American</strong> pragmatismand <strong>the</strong> Chicago School <strong>of</strong> Sociology, trying to find practical, reformativesolutions for <strong>the</strong> transformational problems <strong>of</strong> <strong>the</strong> <strong>American</strong> society and law.To Pound sociological jurisprudence is more a skill or a technique <strong>of</strong> legaland social engineering, whereas philosophy <strong>of</strong> law and sociology <strong>of</strong> law are a<strong>the</strong>oretical and rational basis <strong>of</strong> critical analysis and empirical generalization.However, <strong>the</strong>re are European studies involved in sociology <strong>of</strong> law whichdo not even mention Pound, or present scarce, imprecise or even wronginformation on him. There are plenty <strong>of</strong> critical observations, <strong>the</strong> mostsignificant <strong>of</strong> which are: <strong>the</strong> equation <strong>of</strong> sociology <strong>of</strong> law with sociologicaljurisprudence, narrowing <strong>of</strong> its subject <strong>of</strong> study to state law and practicaltasks, insufficient <strong>the</strong>oretical and sociological foundation <strong>of</strong> his points <strong>of</strong>view, excessive legal normativization <strong>of</strong> social control, undeveloped keyconcepts <strong>of</strong> civilization, reason and ideas <strong>of</strong> paradigmatic rationalizing role
120Miloš Marjanović<strong>of</strong> law in a society. The paper also indicates newer criticism, according towhich Pound’s influence grows weaker and loses importance, while <strong>the</strong>reputation <strong>of</strong> legal realism <strong>of</strong> Llewellyn rises.Key words: Gurvitch, Carbonnier, Molnar, Inđić, Stanković, Vukadinovićand Stepanov, Vračar, Vrban and Čokrevski on Pound.After The Introduction to <strong>the</strong> Theory <strong>of</strong> Law (Podgorica 1996), RoscoePound’s capital five-volume work <strong>Jurisprudence</strong> was translated into Serbian(Beograd – Podgorica 2000, vol. I-III). These translations, which are <strong>the</strong>pride <strong>of</strong> very few legal cultures in <strong>the</strong> world, have created <strong>the</strong> environmentfor a wider pr<strong>of</strong>essional reception and a more thorough and systematiccritical analysis in <strong>the</strong> Serbian language. Before anything else, it would beuseful to summarize <strong>the</strong> criticism <strong>of</strong> Pound’s work in Serbian (prior to<strong>the</strong> aforementioned translation <strong>of</strong> <strong>Jurisprudence</strong>) and partially in Croatian,Macedonian and Romanian, which is also <strong>the</strong> aim <strong>of</strong> this paper. This criticismalso includes <strong>the</strong> perspective <strong>of</strong> French sociology <strong>of</strong> law because Gurvitch’sSociology <strong>of</strong> Law and Carbonnier’s Sociologie juridique were translated inSerbian in 1997 and 1992 respectively.Roscoe Pound and Georges Gurvitch have treated each o<strong>the</strong>r withrespect and high esteem. Pound, however, is cheap on compliments whileGurvitch is more analytical. Namely, in <strong>the</strong> preface to <strong>the</strong> English edition <strong>of</strong>Gurvitch’s Sociology <strong>of</strong> Law (1953, second edition), Pound praises Gurvitchas a ”respectable representative <strong>of</strong> modern sociology” 1 and commends himfor ”criticizing sociological jurisprudence”. He also stresses Gurvitch’s trulygood analysis <strong>of</strong> <strong>the</strong> relationship between jurisprudence on <strong>the</strong> one handand philosophy and sociology <strong>of</strong> law on <strong>the</strong> o<strong>the</strong>r, which are, according toPound, <strong>the</strong> basis for criticism and specialized generalizations in jurisprudence.Gurvitch is also complimented for ”a meticulous review <strong>of</strong> work <strong>of</strong> <strong>the</strong>predecessors and founders <strong>of</strong> sociology <strong>of</strong> law” (Paund 2000, I: 181), but wascriticized for equating law with <strong>the</strong> total social control (p. 155, 394–395).In his Sociology <strong>of</strong> Law (Gurvič 1997: 22, 31), <strong>the</strong> author says that Poundand Cardozo have criticized analytical jurisprudence in a ”brilliant and1All quotations in <strong>the</strong> paper have been translated from Serbian, including <strong>the</strong> Serbiantranslation <strong>of</strong> Gurvitch’s book from English (Sociology <strong>of</strong> Law, London, 1953).
Roscoe Pound’s Sociological <strong>Jurisprudence</strong> from <strong>the</strong> European... 121versatile way” and that Pound’s program study The Scope and Purpose <strong>of</strong>Sociological <strong>Jurisprudence</strong> (1912) was ”significant”. To him Roscoe Pound is”<strong>the</strong> greatest <strong>American</strong> sociologist <strong>of</strong> law” to whom Edward Ross dedicatedhis Principles <strong>of</strong> Sociology (1902), successfully developing Pound’s ideas andconstantly stressing his acceptance <strong>of</strong> Pound’s general principle <strong>of</strong> socialcontrol.Gurvitch chooses words to stress that ”sociology <strong>of</strong> law in <strong>the</strong> UnitedStates found its most elaborate, most detailed, most widely comprehendedand most delicate expression in <strong>the</strong> rich scientific work <strong>of</strong> Roscoe Pound” asan ”undisputed leader” <strong>of</strong> <strong>the</strong> so-called ”sociological jurisprudence”. Heconstantly confronts sociological (social control and interests), philosophical(pragmatism, values), historical-legal (types <strong>of</strong> legal systems) aspects andproblems <strong>of</strong> <strong>the</strong> work <strong>of</strong> <strong>American</strong> courts. These multiple interests and points<strong>of</strong> departure have enabled Pound to ”expand and explain with even moreintensity <strong>the</strong> wide perspectives <strong>of</strong> legal sociology and to gradually develop itsversatile aspects” (p. 151).It can be inferred from Gurvitch’s analysis that Pound’s notion <strong>of</strong>sociological jurisprudence in his mature or monographic phase is quite afterhis taste and that it is actually in accordance with Gurvitch’s general <strong>the</strong>ory<strong>of</strong> sociological relativism or ”dialectic hyperempirism,” as he calls his point <strong>of</strong>view. Pound has, Gurvitch says, reached ”deep analyses” in genetic sociology<strong>of</strong> law, legal typology <strong>of</strong> global societies and discerning different levels <strong>of</strong>depth <strong>of</strong> social reality <strong>of</strong> law, which contributes to solving <strong>the</strong> problems <strong>of</strong>systemic sociology <strong>of</strong> law. He pointed to <strong>the</strong> sociological relativity <strong>of</strong> legaltechnique and legal categories and concepts in relation to types <strong>of</strong> globalsocieties and <strong>the</strong>ir cultural traditions as well as to current transformations <strong>of</strong>law, by which he improved genetic sociology <strong>of</strong> law, applied to <strong>the</strong> modernsociety. Those transformations lead to <strong>the</strong> socialization <strong>of</strong> modern law.Different interpretations <strong>of</strong> legal history are conditioned by specific situations<strong>of</strong> particular types <strong>of</strong> global societies. Pound recognized four deep levels <strong>of</strong>law as a social phenomenon and stressed that for true studying <strong>of</strong> law it isessential not to reduce legal reality to abstract patterns and that this studyingmust go beyond symbols – to what <strong>the</strong>y stand for (pp. 152–153).Gurvitch stresses <strong>the</strong> ”firmness” <strong>of</strong> Pound’s ”functionalistic, relativisticand idealistic-realistic orientation”, but resents <strong>the</strong> fact that he did not reach
122Miloš Marjanović”one quite accurate definition <strong>of</strong> goals and methods <strong>of</strong> sociology <strong>of</strong> law” (p.155). Even later he remains true to his initial equating <strong>of</strong> sociology <strong>of</strong> lawand jurisprudence as a legal skill or technique. He ascribes to sociology <strong>of</strong>law practical goals and makes it into a teleological discipline, failing to seethat its realistic judgments are independent <strong>of</strong> goals and predictions <strong>of</strong>jurisprudence. Fur<strong>the</strong>rmore, even sociologically, law can be dealt with onlyteleologically, not deterministically, because legal phenomena are explainedin terms <strong>of</strong> purpose, not in terms <strong>of</strong> cause. In <strong>the</strong> same vein, he does notdifferentiate between philosophical reflection and sociological description,which causes a certain confusion in <strong>the</strong> relation <strong>of</strong> value judgments andrealistic assessments. This is fur<strong>the</strong>r enhanced by <strong>the</strong> fact that, in discussingideal elements <strong>of</strong> 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 <strong>of</strong> this teleological orientation is an understanding that <strong>the</strong>state is necessarily and a priori more important than all o<strong>the</strong>r groups in <strong>the</strong>society so, in all civilized societies, legal order is equated with social order. Heneglects special groups (except when he talks about social interests), losingsight <strong>of</strong> <strong>the</strong> fact that each group has its own order, legal frame and legalvalues, whereas <strong>the</strong> state is just one special group with a special order. Because<strong>of</strong> this supremacy <strong>of</strong> state order, he fails to see problems <strong>of</strong> microsociology<strong>of</strong> law and differential legal typology <strong>of</strong> individual groups, which Gurvitch,in his own understanding <strong>of</strong> social law, particularly insists on. Despite <strong>the</strong>seborderlines <strong>of</strong> relativism and functionalism, he concludes that RoscoePound’s sociology <strong>of</strong> law is ”delicate and rich” (pp. 155–157).Presenting <strong>the</strong> classics <strong>of</strong> sociology <strong>of</strong> law in <strong>the</strong> 20 th century, JeanCarbonnier (1992: 108) unjustifiably treats <strong>the</strong> school <strong>of</strong> sociologicaljurisprudence as a version <strong>of</strong> <strong>American</strong> (legal) realism, and just a few pageslater (p. 111) he examines realistic thought within <strong>the</strong> framework <strong>of</strong> <strong>the</strong>school <strong>of</strong> sociological jurisprudence. He goes on to say that Roscoe Pound isconsidered <strong>the</strong> founder <strong>of</strong> this school and that he taught law at Harvard, butits most famous followers were Holmes, Cardozo and Brandeis, judges <strong>of</strong><strong>the</strong> Supreme Court. The work <strong>of</strong> this school indicates <strong>the</strong> connection <strong>of</strong> lawwith o<strong>the</strong>r social phenomena. Its most original contribution – placing law insocial control as a more general sociological category – has never been accepted
Roscoe Pound’s Sociological <strong>Jurisprudence</strong> from <strong>the</strong> European... 123outside America because it is actually a mild version <strong>of</strong> social coercion. ForPound law is <strong>the</strong> main and most perfect instrument <strong>of</strong> 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 <strong>of</strong> social control (pp. 109–111).In Carbonnier’s very concise analysis <strong>the</strong>re 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 <strong>of</strong> basically equating <strong>the</strong>m, takingturns <strong>of</strong> choosing each direction as more general. Many o<strong>the</strong>r authors, some<strong>of</strong> which are mentioned and considered here, do not share his point <strong>of</strong> view.Gurvitch (p. 162) stresses that legal realism or neorealistic school is a sharpreaction to an extremely teleological and moralizing orientation <strong>of</strong> sociologicaljurisprudence. Duško Vrban (2006: 35) quotes W. Twilning, according towhom in <strong>the</strong> 1960’s <strong>the</strong>re was a shift in <strong>the</strong> assessment <strong>of</strong> Pound and legalrealist Llewellyn, as pioneers <strong>of</strong> <strong>American</strong> legal thinking – <strong>the</strong> reputation <strong>of</strong><strong>the</strong> former was completely overshadowed by <strong>the</strong> rising star <strong>of</strong> <strong>the</strong> latter.Similarly, in <strong>the</strong> literature analyzed in this paper, <strong>the</strong>re is no attitudethat Holmes and Cardozo were Pound’s followers or students. Oliver WendellHolmes belongs to a preparatory phase <strong>of</strong> <strong>the</strong> development <strong>of</strong> sociology <strong>of</strong>law in <strong>the</strong> USA and he has, according to Aaronson, given <strong>the</strong> signal for <strong>the</strong>”sociological revolt in jurisprudence” (Gurvič 1997: 149). Holmes was <strong>the</strong>first to open new paths in <strong>American</strong> legal thinking and Pound was <strong>the</strong> firstwho put <strong>the</strong>m into action, made use <strong>of</strong> <strong>the</strong>m and taught <strong>the</strong>m to o<strong>the</strong>rs (Inđić1996: 34). Holmes had a founding role in <strong>the</strong> <strong>American</strong> stream <strong>of</strong> legalrealism and sociological jurisprudence (Molnar 1994: 234). Both Pound andlegal realists, as representatives <strong>of</strong> both sociological directions in <strong>American</strong>legal thinking, appealed to Holmes, who insisted that lawyers should studysocial reality as it is done in o<strong>the</strong>r social sciences, that <strong>the</strong> life <strong>of</strong> law is inexperience and not in logic and that law is actually a prediction <strong>of</strong> what judgeswill do (Vrban 2006: 28–29). From <strong>the</strong> already mentioned Gurvitch’s work(pp. 157–162) one does not get <strong>the</strong> impression that Cardozo is Pound’s followeror student, but just one <strong>of</strong> <strong>the</strong> ”prominent representatives <strong>of</strong> sociologicaljurisprudence”. Aleksandar Molnar (1994: 242–243), on <strong>the</strong> o<strong>the</strong>r hand,classifies Cardozo as a legal realist. Finally, since Pound does not have one
124Miloš Marjanovićsingle key idea or <strong>the</strong>ory which could be used to ”compare <strong>the</strong> rest <strong>of</strong> hisrich and primarily elaborate and inspiring work”, it is almost impossible totalk about a ”Pound” school <strong>of</strong> jurisprudence. The school <strong>of</strong> <strong>American</strong> legalrealism, which Pound was ”at war” with, transformed sociological jurisprudenceinto research work (Inđić 1996: 33).What follows is <strong>the</strong> review <strong>of</strong> <strong>the</strong> reception and criticism <strong>of</strong> sociologists<strong>of</strong> law from Serbia, chronologically as <strong>the</strong>y appeared.In his extremely critically oriented review, with <strong>the</strong> title which suggests<strong>the</strong> basic direction <strong>of</strong> analysis, ”Court Postulates <strong>of</strong> Civilization and ModernSociety: Roscoe Pound”, Aleksandar Molnar (1994: 234–242) primarily relieson English and <strong>American</strong> authors (Morrison, Reuschlein, Carpenter, Hunt,Cotterell (?) (Cotterrell), Lasswell, McDougal, Schur, E. Ross). Pound’ssociological jurisprudence is an attempt to keep up with European sociolegal<strong>the</strong>ory, trying to explain changes in <strong>the</strong> <strong>American</strong> society and law. It movesbetween <strong>the</strong> superseded analytical jurisprudence and increasingly influentiallegal realism, although Pound equates <strong>the</strong>m to a large extent, Molnar claims.Relying on Bentham’s utilitarianism, Pound chooses moderate reformism,stressing <strong>the</strong> civilizing influence on <strong>the</strong> activity <strong>of</strong> judges. He is most acclaimedfor his program dichotomy ”law in books” and ”law in action”, or state(positive) and social law, but <strong>the</strong> <strong>the</strong>oretical implications have never beenclarified. ”Law in action” was replaced by ”jural postulates <strong>of</strong> civilization”and <strong>the</strong>n by a classically understood natural law. Pound’s early programwork from <strong>the</strong> first decade <strong>of</strong> <strong>the</strong> 20 th century was based on new sociologicalideas and from that point <strong>of</strong> view individualistic philosophy and analyticaljurisprudence were criticized in <strong>American</strong> legal science. However, all thatcriticism remains general and <strong>the</strong> concepts used more and more speculative,a priori and indeterminate. The extremes <strong>of</strong> radical individualism aresurpassed by <strong>the</strong> socialization <strong>of</strong> law on feudal traditions <strong>of</strong> common law,which is where modern law takes <strong>the</strong> idea <strong>of</strong> cooperation that, along with freeindividual initiative, establishes <strong>the</strong> civilization. His sociological jurisprudenceat first programmatically opposes conservative lawyers who were onlyinterested in traditional legal justice, not in <strong>the</strong> attitudes <strong>of</strong> modern publicopinion on social justice. In time, Pound becomes increasingly more focusedon what characterizes pr<strong>of</strong>essional law, which is, from European perspective,just one area <strong>of</strong> sociology <strong>of</strong> law. He also narrows down its subject by
Roscoe Pound’s Sociological <strong>Jurisprudence</strong> from <strong>the</strong> European... 125understanding it only as an applied, not <strong>the</strong>oretical discipline and because,from that perspective, it is interested only in influences and functions <strong>of</strong> lawin social life and not in influences <strong>of</strong> society to law, which is <strong>the</strong> reason whysocial nature <strong>of</strong> law is not seen in its totality.Molnar accepts Hunt’s criticism <strong>of</strong> Pound’s excessive inclinationtowards classifications, in which principium divisionis is <strong>of</strong>ten not clearlydetermined and which remains partial and <strong>the</strong>oretically unfounded. Using<strong>the</strong> example <strong>of</strong> typology <strong>of</strong> interest (individual, public and social), he showsthat it is not clear which social group determines <strong>the</strong> most important or ”<strong>the</strong>most difficult” interest <strong>of</strong> civilization which law should protect and helprealize. Under <strong>the</strong> influence <strong>of</strong> Kohler’s philosophy <strong>of</strong> law he takes over <strong>the</strong>concept <strong>of</strong> civilization from <strong>the</strong> arsenal <strong>of</strong> new age enlightenment, determiningit as control over <strong>the</strong> interior and exterior nature with <strong>the</strong> aim to perfecthuman resources, but that determination remains generalized. Judicialpostulates <strong>of</strong> civilization, concretized in modern society, are not legal rulesbut pr<strong>of</strong>essional ideas which should be realized through legal institutionsand regulations. They initiate <strong>the</strong> creation <strong>of</strong> judge-made law but withoutany deeper connection to a wider society. The correspondence betweenjudicial postulates <strong>of</strong> a civilized society and <strong>the</strong> needs <strong>of</strong> social reality is notexperiential, but a priori based. Courts are <strong>the</strong> primary driving force <strong>of</strong> <strong>the</strong>progress <strong>of</strong> civilization and in this typically <strong>American</strong> affinity <strong>the</strong>y glorifyjudicial justice and give little weight to legislative one.From his friend Edward Ross Pound takes over <strong>the</strong> concept <strong>of</strong> socialcontrol and normatizes it, but unlike him, he does not inquire after <strong>the</strong>undesirable effects <strong>of</strong> 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 <strong>the</strong> thoughtthat repression can be closely knit with <strong>the</strong> progress <strong>of</strong> civilization. Socialengineering <strong>of</strong> law, as a technocratic term for improvement <strong>of</strong> control,improves <strong>the</strong> functionality <strong>of</strong> society. What is socially functional is <strong>the</strong>decision <strong>of</strong> reason, but Pound does not clearly define this concept anywhere.Evolutionary postulate on continuous historical development <strong>of</strong> rationalityuntil perfection in a modern society is an axiom which is ei<strong>the</strong>r accepted orrejected, while <strong>the</strong> <strong>the</strong>ory <strong>of</strong> rationalizing social role <strong>of</strong> law is developedelsewhere, primarily in Germany.
126Miloš MarjanovićIn an extremely studious preface to <strong>the</strong> Montenegrin edition <strong>of</strong> Pound’sIntroduction to Philosophy <strong>of</strong> Law entitled ”Pound Pleading for <strong>the</strong> Philosophy<strong>of</strong> Law”, Trivo Inđić (1996: 7–34) has almost no critical observations. RoscoePound (1870–1964) is <strong>the</strong> ”greatest descendant” and <strong>the</strong> ”synonym” <strong>of</strong> <strong>the</strong>Harvard Law School, ”<strong>the</strong> greatest <strong>American</strong> lawyer and one <strong>of</strong> <strong>the</strong> leadinggeneralists on <strong>the</strong> whole”, a representative <strong>American</strong> lawyer who, due to <strong>the</strong>breadth <strong>of</strong> his knowledge and his learnedness, was called ”<strong>the</strong> monster <strong>of</strong>knowledge”, ”syn<strong>the</strong>sis <strong>of</strong> all philosophies” and <strong>the</strong> lawyer who ”knowseverything.” In ex Yugoslavia Natko Katičić (1937) diverted everyone’sattention to Pound, saying that he was ”<strong>the</strong> most renowned <strong>of</strong> all living<strong>American</strong> writers and surely <strong>the</strong> most interesting <strong>of</strong> all legal writers on <strong>the</strong>whole.” He is a prominent, capable and determined representative whomarks <strong>the</strong> beginning <strong>of</strong> <strong>the</strong> sociological stream in <strong>American</strong> jurisprudence.He acquired significant practical experience when in 1901 he became <strong>the</strong>youngest member <strong>of</strong> <strong>the</strong> 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 <strong>of</strong> Nebraska College <strong>of</strong> Law in 1903. He was one <strong>of</strong> <strong>the</strong> four bearers <strong>of</strong><strong>the</strong> title University Pr<strong>of</strong>essorship in <strong>the</strong> 300 year history <strong>of</strong> Harvard, whichgave him <strong>the</strong> right to teach any subject at any college <strong>of</strong> this university. Hewas invited to come to <strong>the</strong> Chicago University, where he stayed from 1907to 1910 and where he ”formulated <strong>the</strong> systematic criticism <strong>of</strong> <strong>American</strong> law,its traditionalism and inefficiency” connected to <strong>the</strong> philosophy <strong>of</strong> socialDarwinism <strong>of</strong> <strong>the</strong> 19 th century and preindustrial society. This criticism <strong>of</strong>”mechanical jurisprudence” or ”jurisprudence <strong>of</strong> concepts” turned him towardsreforms, which he was particularly persistent at, and directed him towardsphilosophy <strong>of</strong> law. There he speaks in favor <strong>of</strong> pragmatic, sociological science <strong>of</strong>law, so he becomes <strong>the</strong> synonym <strong>of</strong> sociological jurisprudence as a movementfor pragmatism in philosophy <strong>of</strong> law, for <strong>the</strong> adjustment <strong>of</strong> legal principlesand doctrines to <strong>the</strong> needs <strong>of</strong> people, who were central, while legal logic wasjust an instrument <strong>the</strong>re.”Accomplishing such a wide and deep insight into law and variouslegal traditions, opening <strong>American</strong> jurisprudence to <strong>the</strong> latest legal schools<strong>of</strong> <strong>the</strong> European science, making rich legal practice as a lawyer, judge andresearcher... Pound was truly ready to start writing philosophy <strong>of</strong> law” (p. 25).
Roscoe Pound’s Sociological <strong>Jurisprudence</strong> from <strong>the</strong> European... 127Only a lawyer with such universal capabilities could speak <strong>of</strong> philosophy from<strong>the</strong> Anglo–<strong>American</strong> tradition <strong>of</strong> common law, but one should bear in mindthat he always relied on <strong>the</strong> universal tradition <strong>of</strong> legal thinking, thus opening<strong>American</strong> thought to <strong>the</strong> ideas <strong>of</strong> European law.Roscoe Pound was, <strong>the</strong>refore, able to ”think philosophically and establishlaw as an instrument <strong>of</strong> social dynamics”, placing its functions and goal in awider social and historical context, <strong>of</strong>fering ”<strong>the</strong>oretical justification forenormous social and economic legislation” in <strong>the</strong> 20 th century, thus makingsure that courts acknowledge <strong>the</strong> interdependence <strong>of</strong> law and social sciences.With a huge production <strong>of</strong> over a thousand published references and amonumental five-volume work <strong>Jurisprudence</strong> (1959) on over 4000 pages,he was <strong>the</strong> leader <strong>of</strong> <strong>American</strong> jurisprudence <strong>of</strong> <strong>the</strong> 20 th century. He alsorehabilitated philosophy <strong>of</strong> law and established a modern school <strong>of</strong> sociologicaljurisprudence in <strong>the</strong> USA. Therefore, even those who ”today diminishPound’s influence and prophetic voice in <strong>the</strong> science <strong>of</strong> law stand on hisshoulders” (p. 34).In volume 3 <strong>of</strong> Foundations <strong>of</strong> General Sociology <strong>of</strong> Law, which is about<strong>the</strong> application <strong>of</strong> law, Jugoslav Stanković (2000: 140–154) has a chapterentitled ”Roscoe Pound – changing <strong>the</strong> society with law”, which indicates<strong>the</strong> focus <strong>of</strong> his reception. Pound’s understanding <strong>of</strong> law as an instrument <strong>of</strong>social change or efficient tool <strong>of</strong> social dynamics was heavily stressed by TrivoInđić (1996: 26–29, 32) and Cotterrell (1984: 54–57) before him. Cotterrellalso points out <strong>the</strong> limit <strong>of</strong> effective legal action, while Stanković stresses thatRoscoe Pound is one <strong>of</strong> <strong>the</strong> most important representatives <strong>of</strong> sociologicaljurisprudence. He understands law as social engineering, not as a narrowlegal activity. That is why in legal <strong>the</strong>ory, practice and education <strong>the</strong>re shouldbe essential changes and reforms to turn law towards social sciences andaccomplishing justice as its practical goal. Stanković scrutinizes over Pound’scriticism <strong>of</strong> <strong>the</strong> dominant individualistic doctrine and his understanding <strong>of</strong><strong>the</strong> development <strong>of</strong> law in five phases towards <strong>the</strong> basic goal that law shouldhave accomplished as a criterion. He also analyzes <strong>the</strong>ory and classification<strong>of</strong> interest as an explanation <strong>of</strong> legal phenomenon. An objective scientificanalysis seriously jeopardizes his subject-oriented <strong>the</strong>oretical attitude. Thebasic tasks <strong>of</strong> sociological jurisprudence is <strong>the</strong> most efficient application<strong>of</strong> law possible, which is <strong>the</strong> way to achieve important civilization values.
128Miloš MarjanovićAdditionally, he discusses <strong>the</strong> concept <strong>of</strong> civilization and its seven postulatesrelying on Molnar but interpreting differently two new or last postulates. Theseattempts enable efficient social control by <strong>the</strong> means <strong>of</strong> law, so Stankovićdeliberates social control and five limitations to <strong>the</strong> application <strong>of</strong> law. Heconcludes that Pound’s huge merit is introducing sociology into <strong>the</strong> <strong>American</strong>legal science, but he adds that Pound’s study is incomplete because it doesnot encompass objective influences <strong>of</strong> social characteristics on law as well.In <strong>the</strong> textbook Theory <strong>of</strong> Law I (2001), in <strong>the</strong> 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 <strong>the</strong>y consider to be one <strong>of</strong> <strong>the</strong> mostimportant <strong>American</strong> founders and representative <strong>of</strong> sociology <strong>of</strong> law. Thisbook reinterprets Molnar’s reception <strong>of</strong> Pound’s sociological jurisprudenceas <strong>American</strong> <strong>the</strong>ory <strong>of</strong> law keeping pace with European sociolegal tradition.It also considers three elements <strong>of</strong> law and seven postulates <strong>of</strong> civilization,but it omits his critical observations.In <strong>the</strong> Introduction to Philosophy <strong>of</strong> Law (2004) in <strong>the</strong> chapter ”RoscoePound: <strong>American</strong> Legal Philosophy and Sociological <strong>Jurisprudence</strong>” (pp.64–76), <strong>the</strong> same authors significantly rely on Trivo Inđić’s preface, but also<strong>the</strong>mselves analyze to a large extent some basic ideas from Pound’s Introductionto Philosophy <strong>of</strong> Law (1996) and from <strong>the</strong> first volume <strong>of</strong> his <strong>Jurisprudence</strong>(2000). They stress that Pound’s reputation is considerable both in legalscience and in legal thinking. Pound’s creative <strong>the</strong>oretical and practicalinvolvement is directed at <strong>the</strong> affirmation <strong>of</strong> philosophy <strong>of</strong> law andjurisprudence. His capital works are listed here, with original and translatedtitles, but without places and years <strong>of</strong> publication. To Pound philosophy is apowerful instrument <strong>of</strong> legal arsenal which totally explains social controland <strong>of</strong>fers rational explanations for law. Vukadinović and Stepanov mentionbasic questions (chapters) <strong>of</strong> Pound’s Introduction to Philosophy <strong>of</strong> Law anddiscuss 12 concepts on <strong>the</strong> nature <strong>of</strong> law, which Pound analyzes in his book,including common elements in all <strong>of</strong> <strong>the</strong>m. The authors stress that in hisresearch Pound emphasizes social philosophical schools and sociologicaljurisprudence and in that respect he significantly contributes to <strong>the</strong> <strong>American</strong>sociology <strong>of</strong> legal system, which is briefly analyzed and referred to in volume I<strong>of</strong> Pound’s <strong>Jurisprudence</strong>. The authors conclude that Roscoe Pound ”represents
Roscoe Pound’s Sociological <strong>Jurisprudence</strong> from <strong>the</strong> European... 129such a striking legal figure who was successful both in practice and in <strong>the</strong>ory,sociology and philosophy <strong>of</strong> law. He was a devoted defender <strong>of</strong> law and justice,inspired legislator, original and creative legal thinker” (p. 76).Stevan Vračar, doyen <strong>of</strong> <strong>the</strong>ory and philosophy <strong>of</strong> law, retired Pr<strong>of</strong>essor<strong>of</strong> <strong>the</strong> Faculty <strong>of</strong> Law in Belgrade, wrote <strong>the</strong> afterword to <strong>the</strong> translation <strong>of</strong>Pound’s <strong>Jurisprudence</strong> entitled ”Pound’s Presentation <strong>of</strong> <strong>Jurisprudence</strong>”(2000: 339–358). He particularly stresses Pound’s understanding <strong>of</strong> threeelements <strong>of</strong> law (normative, technical and doctrinal), phases in <strong>the</strong> historicaldevelopment <strong>of</strong> law (primitive, strict, natural, mature, socialized and worldlaw), his explorations <strong>of</strong> <strong>the</strong> function <strong>of</strong> law, interests and social control.He also considers <strong>the</strong> history <strong>of</strong> legal thinking and discerns phases in <strong>the</strong>development <strong>of</strong> jurisprudence <strong>the</strong>ories.Pound devotes <strong>the</strong> whole 6 th chapter to sociological jurisprudence,paying special attention to it and showing openly his orientation. From <strong>the</strong>very beginning <strong>of</strong> his legal carrier Pound was aware <strong>of</strong> <strong>the</strong> great significance<strong>of</strong> sociology as a new and growingly influential science, especially with regardto law. Quoting H. G. Reuschlein, Vračar points out that Pound is <strong>the</strong> founder,leader and prophetic herald <strong>of</strong> this orientation. He had particular inclinationsfor such a treatment <strong>of</strong> law, but such an orientation was also aided by <strong>the</strong>whole environment <strong>of</strong> law, cultural atmosphere, etc. and primarily because<strong>of</strong> him, it became <strong>the</strong> most influential orientation in <strong>the</strong> USA. It was auspiciousfor stressing <strong>the</strong> significance <strong>of</strong> legal practice, so <strong>the</strong> administration andjudicature started being treated increasingly more as reflections <strong>of</strong> real life <strong>of</strong>a social community.The author has attempted to systematically point out philosophicaland sociological aspects <strong>of</strong> Pound’s notion <strong>of</strong> 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 <strong>of</strong> observation,classification and description in <strong>the</strong> manner <strong>of</strong> 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 <strong>of</strong>concepts, but he also notices certain drawbacks in <strong>the</strong> systematics. Even thoughhis thought does not appear systematic, but fragmentary, it is consistent andcoherent, reasonable, founded, <strong>the</strong>oretically inconspicuous, but factographically
130Miloš Marjanovićargumented. Although it is implicitly noticed by o<strong>the</strong>r authors, Gurvitchespecially, Vračar explicitly discusses three phases in Pound’s work – youth,maturity and old age, or program, monograph and balance phases. He notices<strong>the</strong> difference between law in books and law in action and speaks in favor <strong>of</strong>legal facticism. He avoids <strong>the</strong> discussion on <strong>the</strong> relationship between law and<strong>the</strong> state, but, while arguing about Masonic jurisprudence, he turns <strong>the</strong> sciencetowards <strong>the</strong> secret sphere <strong>of</strong> social life. He concludes that Pound is an extraordinarypersonality with <strong>the</strong> most brilliant legal carrier in <strong>the</strong> USA and evenwider and adds that Pound was mainly involved in common law as <strong>the</strong> mostconvenient form <strong>of</strong> regulating social life and a basis for connecting positiveand natural law. He accuses Pound <strong>of</strong> giving nei<strong>the</strong>r preface nor conclusionto his <strong>Jurisprudence</strong>, but stresses that his life work is a colossal, praiseworthy,successful and impressive monument to himself but to jurisprudence as well.At <strong>the</strong> end <strong>of</strong> this paper I shall briefly deal with some papers in Romanian,Croatian and Macedonian, which do or do not consider Pound’s work andunderstanding <strong>of</strong> sociological jurisprudence. Romanian sociologist MihailCernea in his book <strong>American</strong> Sociology (1974) mentions sociology <strong>of</strong> law asone <strong>of</strong> 36 sections <strong>of</strong> <strong>the</strong> <strong>American</strong> Sociological Association. However, notonly does he not analyze <strong>American</strong> jurisprudence, in fact he does not mentionit at all. Nei<strong>the</strong>r does ano<strong>the</strong>r Romanian sociologist, Achim Mihu, in a bookwhere it might be expected – Sociology <strong>of</strong> Law (1996), which comes as asurprise since one whole chapter <strong>of</strong> this book is dedicated to <strong>the</strong> founders <strong>of</strong>jurisprudence (Weber, Gurvitch, Geiger, Treves) and ano<strong>the</strong>r to social control.Pound is not mentioned in <strong>the</strong> name register by Eugen Pusić, Pr<strong>of</strong>essor <strong>of</strong><strong>the</strong> Faculty <strong>of</strong> Law in Zagreb in his book Social Regulation (1989), althoughin <strong>the</strong> chapter ”History and Development <strong>of</strong> Social Science” he discusses indetail Marx, Durkheim, Weber, Luhman and Habermas.However, ano<strong>the</strong>r Croatian author, Duško Vrban, in his book Sociology<strong>of</strong> Law (2006), devotes <strong>the</strong> whole third chapter to <strong>the</strong>ory <strong>of</strong> law and sociologicaljurisprudence in America (pp. 28–37). After a very vivid review <strong>of</strong> social andcultural conditions in which <strong>the</strong>se disciplines developed in <strong>the</strong> USA, basedon newer works in English, at <strong>the</strong> end <strong>of</strong> <strong>the</strong> chapter (pp. 34–37) <strong>the</strong> authorturns to Pound’s sociological orientation in legal thinking and says he wasits undisputed leader and that his reputation far surpasses <strong>the</strong> <strong>American</strong>cultural circle. He thinks that Pound’s greatest merit is insisting on studying
Roscoe Pound’s Sociological <strong>Jurisprudence</strong> from <strong>the</strong> European... 131law in a social context. According to Vrban, Pound differentiates betweensociological jurisprudence as a special technique <strong>of</strong> <strong>the</strong> sociological approachto law and <strong>the</strong> sociology <strong>of</strong> law as a primarily <strong>the</strong>oretical discipline. Inevaluating Pound’s work Vrban mostly acquires <strong>the</strong> criticism <strong>of</strong> Alan Hunt,according to whom Pound’s work was a precondition for <strong>the</strong> sociologicalstudy <strong>of</strong> law, but his support <strong>of</strong> sociological jurisprudence did not result inan adequate <strong>the</strong>oretical basis. Vrban underlines that ”according to latercommentators, Pound’s contribution to <strong>the</strong>ory and sociology <strong>of</strong> law is notparticularly important and his approach to sociological study <strong>of</strong> law remainsrough, i.e. in <strong>the</strong> scope <strong>of</strong> essayistic critical questioning” (p. 35). After a briefcomment on some <strong>of</strong> Pound’s bio–bibliographic data, ideas and categories(social engineering, interests, social control), <strong>the</strong> review ends with a shorterand slightly modified Hunt’s scheme <strong>of</strong> legal revolution from Pound’s<strong>Jurisprudence</strong>.Macedonian author Tomislav Čokrevski in his Sociology <strong>of</strong> Law (2001)has a separate chapter where he discusses <strong>the</strong> development <strong>of</strong> sociology <strong>of</strong>law in different countries, primarily <strong>the</strong> USA (pp. 104–106). He claims thatin <strong>the</strong> USA, especially after 1950, empirical sociology <strong>of</strong> law developed to agreat extent while, according to <strong>American</strong> sociologists <strong>the</strong>mselves, <strong>the</strong>re wereno great achievements. While in <strong>the</strong> USA in <strong>the</strong> 19 th century analytic andhistorical jurisprudence dominated <strong>the</strong> scene, in <strong>the</strong> first half <strong>of</strong> <strong>the</strong> 20 th centurysociological jurisprudence, legal realism and philosophy <strong>of</strong> law developed. Ina short paragraph Čokrevski summarizes Pound, Ross, Holmes and Cardozo,but Pound has as much space as o<strong>the</strong>rs put toge<strong>the</strong>r.In conclusion it can be said that <strong>the</strong>re are two opposite types <strong>of</strong> analysis<strong>of</strong> 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 <strong>the</strong>o<strong>the</strong>r side <strong>the</strong>re is Molnar’s nuanced and differentiated, but expressly criticalanalysis which contains almost no affirmative elements. Vračar’s afterwordis closer to Gurvitch’s analysis, while <strong>the</strong> reviews <strong>of</strong> Stanković as well asVukadinović and Stepanov are closer to <strong>the</strong> analysis <strong>of</strong> Inđić’s type. Vrban’sreview is closer to <strong>the</strong> analysis <strong>of</strong> Molnar, but it also contains some affirmativeand many descriptive or analytically ”neutral” elements, which is alsocharacteristic <strong>of</strong> Stanković as well as Vukadinović and Stepanov. Čokrevski’s
132Miloš Marjanovićreview is concise and almost devoid <strong>of</strong> 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. (<strong>American</strong> Sociology).Cotterrell R. (1984), The Sociology <strong>of</strong> Law, London.Чокревски Т. (2001), Социологија на правото, Скопје. (Čokrevski T. (2001),Sociology <strong>of</strong> Law, Skopje).Gurvič Ž. (1997), Sociologija prava, Podgorica. (Gurvitch G. Sociology <strong>of</strong> Law).Inđić T. (1996), ”Paundovo zauzimanje za filoz<strong>of</strong>iju prava”, predgovor za:R. Paund. Uvod u filoz<strong>of</strong>iju prava, Podgorica. (”Pound’s Pleading for<strong>the</strong> Philosophy <strong>of</strong> Law”, Preface for: R. Pound, An Introduction to <strong>the</strong>Philosophy <strong>of</strong> Law).Karbonije Ž. (1992), Pravna sociologija, Novi Sad – Titograd. (CarbonnierG., Legal Sociology).Mihu A. (1996), Sociologia dreptului, Cluj – Napoca. (Sociology <strong>of</strong> Law).Molnar A. (1994), Društvo i pravo, Novi Sad. (Society and Law).Paund R. (1996), Uvod u filoz<strong>of</strong>iju prava, Podgorica. (An Introduction to <strong>the</strong>Philosophy <strong>of</strong> Law).Паунд Р. (2000), Јуриспруденција, књ. I–III, Београд - Подгорица. (PoundR.(2000), <strong>Jurisprudence</strong>, 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 <strong>of</strong> General Sociology <strong>of</strong> Law,Part III, The Enforcement <strong>of</strong> Law. The Subject <strong>of</strong> <strong>the</strong> Sociology <strong>of</strong> Law).Vračar S. (2000), ”Paundova prezentacija jurisprudencije”, pogovor za: R.Paund, Jurisprudencija III, Beograd – Podgorica. (”Pound’s Presentation<strong>of</strong> <strong>the</strong> <strong>Jurisprudence</strong>”, Afterword for: R. Pound, <strong>Jurisprudence</strong> III).Vrban D. (2006), Sociologija prava, Zagreb (Sociology <strong>of</strong> Law).Vukadinović G. – Stepanov R. (2001), Teorija prava I, Petrovaradin. (Theory<strong>of</strong> Law I).Vukadinović G. – Stepanov R. (2004), Uvod u filoz<strong>of</strong>iju prava, Novi Sad. (AnIntroduction to <strong>the</strong> Philosophy <strong>of</strong> Law).
IIIThe Morality <strong>of</strong> Law1 Pr<strong>of</strong>. Dragan M. Mitrović, PhDFaculty <strong>of</strong> Law, Belgrade, SerbiaLon Fuller’s Legal Philosophy on <strong>the</strong> Morality <strong>of</strong> Lawin View <strong>of</strong> His Opponents and Advocates2 Marko Božić, AssistantFaculty <strong>of</strong> Law, Novi Sad, SerbiaJohn Finnis, <strong>the</strong> Heir <strong>of</strong> <strong>the</strong> Aquinian Natural Law Tradition3 Marko Trajković, LL.M, AssistantFaculty <strong>of</strong> Law, Niš, SerbiaRichard A. Posner: The Problematics <strong>of</strong> Moral and Legal Theory4 Pr<strong>of</strong>. Danijela GrujićNovi Sad, SerbiaFor <strong>the</strong> Love <strong>of</strong> One’s Country and <strong>the</strong> World
Lon Fuller’s Legal Philosophy on <strong>the</strong> Morality <strong>of</strong> Law in View... 1351 Pr<strong>of</strong>. 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 <strong>the</strong> breach between positivism and iusnaturalism. Hisefforts have been seen in different lights. However, it does not mean that Fuller’scontribution to legal <strong>the</strong>ory is in any way modest, as certain jurists <strong>of</strong> todaywould like to think. It is even less possible to claim that each discussion on <strong>the</strong>form <strong>of</strong> law is completely devoid <strong>of</strong> moral judgement. And that more thansuffices for Fuller’s contribution to legal philosophy and <strong>the</strong>ory to fare muchbetter when it comes to overall assessment.What still attracts much attraction today in Fuller’s teachings is that it<strong>of</strong>fers a choice to mankind! And although law is <strong>the</strong> prerequisite <strong>of</strong> good law,legal rules <strong>the</strong>mselves 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 <strong>the</strong> very few <strong>of</strong> those great menwhose teachings, perhaps now even more than during his life, have attracted <strong>the</strong>attention <strong>of</strong> legal philosophers in <strong>the</strong> world. At <strong>the</strong> time when philosophy <strong>of</strong>legal positivism on <strong>the</strong> separation <strong>of</strong> <strong>the</strong> law from morality was at its height,Fuller’s original procedural natural law <strong>the</strong>ory appeared in a secularised form,<strong>the</strong> <strong>the</strong>ory whose distinctive and pr<strong>of</strong>ound 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 <strong>the</strong>oreticianswho were especially interested in procedures and institutional order <strong>of</strong> <strong>the</strong> society,
136Dragan M. Mitrovićand that is precisely what represents a firm ground for <strong>the</strong> correct understanding<strong>of</strong> Fuller’s rich and subtle thought, expressed in <strong>the</strong> form <strong>of</strong> his original proceduralnatural law <strong>the</strong>ory.His main ideas Fuller published in 1964 in his book ”The Morality <strong>of</strong>Law”, his most probably best known work, which has seen several publicationsto date, including this most recent one in Serbian.The book is based on <strong>the</strong> lectures held by Fuller in April 1963 at Yale LawSchool. At <strong>the</strong> end <strong>of</strong> <strong>the</strong> book was published <strong>the</strong> addendum entitled ”TheProblem <strong>of</strong> <strong>the</strong> Grudge Informer”, obviously inspired by still active and existingexperience <strong>of</strong> national-socialist, fascist and Stalinist dictatorships. The writingwas originally intended as <strong>the</strong> basis for discussion at <strong>the</strong> jurisprudence course,but it was also used as a form <strong>of</strong> introduction into <strong>the</strong> problems <strong>of</strong> jurisprudenceat <strong>the</strong> courses attended at that time by all first-year students at Harvard LawSchool. However, despite having such a purpose, it has not lost any <strong>of</strong> its valueto date. To <strong>the</strong> contrary. This is actually a brief masterpiece, quite clearlyshowing how <strong>the</strong> exercising <strong>of</strong> human thought creates a reliable barrier to everytotalitarian pattern. Anyhow, all totalitarianism actually finds its firmest groundin <strong>the</strong> laziness and decrepitude <strong>of</strong> human spirit, which <strong>the</strong>n easily submits to<strong>the</strong> leadership <strong>of</strong> self-proclaimed messiahs. It is indeed a pity that all <strong>the</strong>participants <strong>of</strong> <strong>the</strong> October 5 th change <strong>of</strong> government in Serbia in 2000 were notfamiliar with this addendum, which would have certainly served to make <strong>the</strong>irthoughts sharper, and <strong>the</strong> decision making process concerning matters <strong>of</strong> stateeasier, and to streng<strong>the</strong>n <strong>the</strong>ir confidence as regards <strong>the</strong>ir responsibility for <strong>the</strong>future <strong>of</strong> <strong>the</strong> people <strong>the</strong>y represented.The very circumstances shedding a different, more rational light on <strong>the</strong>emergence <strong>of</strong> this Fuller’s work are <strong>of</strong> interest. Among <strong>the</strong>m a special place isheld by <strong>the</strong> exhausting discussion <strong>of</strong> Fuller and Herbert Hart, <strong>the</strong> best known<strong>American</strong> student <strong>of</strong> Hans Kelsen, and probably <strong>the</strong> harshest Fuller’s critic.The immediate cause was Hart’s discussion with an <strong>American</strong> philosopherBodenheimer, who was critical about Hart’s work ”Definition and Theory in<strong>Jurisprudence</strong>”, published in 1952. The discussion between Hart and Bodenheimerwas later on joined by Fuller himself, amid o<strong>the</strong>r renowned jurists (Pound,Dworkin, D’Entrieves, Raz, Ross), even before his new book, ”The Morality <strong>of</strong>Law”, came out. It is no wonder that Fuller, after <strong>the</strong> book had been published,dedicated one part to stating objections to <strong>the</strong> existing positions on law.Sensibly criticising legal positivism, Fuller especially emphasized verbaland formal nature <strong>of</strong> <strong>the</strong> assertions on law and <strong>the</strong> inability <strong>of</strong> positivism to
Lon Fuller’s Legal Philosophy on <strong>the</strong> Morality <strong>of</strong> Law in View... 137treat <strong>the</strong> content <strong>of</strong> law. Not only that positivism is unable to distinguish ”law”from ”good law”, claims Fuller, it is similarly incapable <strong>of</strong> determining anyreliable or final measure for law as a phenomenon in <strong>the</strong> experiential world.Fur<strong>the</strong>rmore, even common sense itself tells us that in <strong>the</strong> world <strong>of</strong> law, as well asin <strong>the</strong> world <strong>of</strong> facts, ”what is” and ”what ought to be” are inseparably intertwined.At that time Fuller particularly focused on Hart’s notion <strong>of</strong> law. Thediscussion, now between Hart and Fuller, was especially galvanized by Fuller’sassertion that Hart’s objections concerning his term, internal morality <strong>of</strong> law,especially <strong>the</strong> ones Hart made with regard to his teachings on <strong>the</strong> rule <strong>of</strong>recognition – ”missed <strong>the</strong> point”. On <strong>the</strong> o<strong>the</strong>r hand, Hart claimed that Fuller’sprinciples <strong>of</strong> internal morality <strong>of</strong> law are not moral in nature, but that <strong>the</strong>y are<strong>the</strong> principles <strong>of</strong> quality independent from substantive aims <strong>of</strong> law. That is why,Hart stressed, Fuller with his principles <strong>of</strong> internal morality <strong>of</strong> law could notentirely dispose <strong>of</strong> legal positivism, against which he so fervently spoke in hisphilosophy. It is <strong>of</strong> interest that Artur Kaufman holds an opinion similar toHart’s. According to him, Fuller’s teachings belong to <strong>the</strong> so-called ”empiricalpositivism”, although such an assessment <strong>of</strong> Fuller’s scientific work fails to have<strong>the</strong> right shade <strong>of</strong> truth. In every major legal encyclopaedia or encyclopaedia <strong>of</strong>philosophers <strong>of</strong> law, Fuller’s work is classified as belonging to <strong>the</strong> so called”procedural natural law”, and not legal positivism.His main ides and assertions Fuller amended already in <strong>the</strong> secondedition <strong>of</strong> his book (1969), adding to <strong>the</strong> already existing text a separate chapter,Chapter Five, entitled ”Reply to Critics”. This was no accident, since <strong>the</strong>appearance <strong>of</strong> <strong>the</strong> first edition <strong>of</strong> ”The Morality <strong>of</strong> Law” in 1964, containing <strong>the</strong>central idea <strong>of</strong> close or even indissoluble link between <strong>the</strong> law and morals, had<strong>the</strong> same effect on <strong>the</strong> advocates <strong>of</strong> legal positivism as waving a red flag in abullfight. Moreover, <strong>the</strong> book almost immediately provoked an avalanche <strong>of</strong>criticisms which almost crushed Fuller. That Fuller still stood his groundagainst <strong>the</strong> force <strong>of</strong> attacks coming from all sides is shown by that very ChapterFive in <strong>the</strong> next, second edition <strong>of</strong> his book, which is present, albeit slightlyamended, in all later editions. There Fuller rationally responded to <strong>the</strong> scientificobjections <strong>of</strong> his critics. As a result, many <strong>of</strong> Fuller’s fierce critics revised <strong>the</strong>irpositions on his <strong>the</strong>ory. Especially effective was <strong>the</strong> example <strong>of</strong> a fierce critic <strong>of</strong>Fuller’s, Robert S. Summers, who converted his original criticism into a defence<strong>of</strong> Fuller’s <strong>the</strong>ory. Moreover, Summers devoted one <strong>of</strong> his works entirely to LonFuller, even naming <strong>the</strong> work after him: ”Lon L. Fuller” (1984). Herbert Hart, <strong>of</strong>course, never did anything in that vein.
138Dragan M. MitrovićThis is not <strong>the</strong> only Fuller’s book to have had several editions. Let usremember o<strong>the</strong>r Fuller’s books, also with several editions, both during his lifeand posthumously, as is <strong>the</strong> case with ”Legal Fictions” (1970), ”Anatomy <strong>of</strong> <strong>the</strong>Law” (1976), ”The Principles <strong>of</strong> Social Order: Selected Essays” (1982), ”Law inQuest <strong>of</strong> Itself” (1966 and 1987), or with ”Basic Contract Law” (<strong>American</strong>Casebook Series, 1996). However, those works were mostly published at <strong>the</strong> timewhen Fuller had already attracted <strong>the</strong> attention <strong>of</strong> international jurisprudenceand science owing to his unquestionably most challenging book, ”The Morality<strong>of</strong> 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 <strong>of</strong> <strong>the</strong> renowned names),where Fuller was more attacked than defended, and which had already beenwritten by 1967. However, after his death, <strong>the</strong> original harsh criticisms wereei<strong>the</strong>r made blander or altoge<strong>the</strong>r abandoned for what is actually Fuller’spredominant idea and lasting contribution to <strong>the</strong> philosophy and science <strong>of</strong> <strong>the</strong>law: that <strong>the</strong> law may not be entirely amoral or perverted, but that it mustcontain at least a minimum <strong>of</strong> morality.In <strong>the</strong> scientific atmosphere thus changed <strong>the</strong>re appeared works whereFuller’s contribution was altoge<strong>the</strong>r differently assessed. In addition to <strong>the</strong>already mentioned Robert Summers, o<strong>the</strong>r authors acted similarly, as is <strong>the</strong> casewith Charles Covell: ”The Defence <strong>of</strong> Natural Law: A Study <strong>of</strong> <strong>the</strong> Ideas <strong>of</strong> Lawand Justice in <strong>the</strong> Writings <strong>of</strong> Lon L. Fuller, Michael Oakeshot, F. A. Hayek,Ronald Dworkin” (2000), or with Barry Macleod-Cullinane: ”Lon L. Fuller and<strong>the</strong> Enterprise <strong>of</strong> Law” (Legal Notes, No. 22, London, 2000).Those are but a few impressive examples. However, such examples areplentiful, as is <strong>the</strong> 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. Never<strong>the</strong>less, if <strong>the</strong> changing <strong>of</strong> <strong>the</strong> world changes alsoour scientific image <strong>of</strong> <strong>the</strong> world, <strong>the</strong>n such a change by all means only contributedto <strong>the</strong> increase in <strong>the</strong> interest for <strong>the</strong> scientific work <strong>of</strong> Lon Fuller. Be as it may, itis certain that nowadays <strong>the</strong>re are several thousand citations <strong>of</strong> Fuller’s scientificwork, while <strong>the</strong>ir number in electronic publications on <strong>the</strong> Internet cannot beassessed with any reliability.
Lon Fuller’s Legal Philosophy on <strong>the</strong> Morality <strong>of</strong> Law in View... 139IIIn his legal teaching, where most important place is held by <strong>the</strong> so called”internal morality <strong>of</strong> law”, Fuller at <strong>the</strong> same time endeavours to remove or atleast to overcome <strong>the</strong> weaknesses <strong>of</strong> legal positivism and natural law <strong>the</strong>ory. Tosuch intention is suited also <strong>the</strong> definition <strong>of</strong> law, according to which <strong>the</strong> lawis <strong>the</strong> ”enterprise <strong>of</strong> subjecting human conduct to <strong>the</strong> governance <strong>of</strong> rules”.However, those are not just any legal rules, but only those that possess internaland external morality. O<strong>the</strong>rwise, it is <strong>the</strong> issue <strong>of</strong> perverted law.On that basis Fuller expresses his teachings on morality, which areindispensable for <strong>the</strong> understanding <strong>of</strong> teachings on <strong>the</strong> morality <strong>of</strong> law. In short,Fuller distinguishes two kinds <strong>of</strong> morality: ”<strong>the</strong> morality <strong>of</strong> duty” and ”<strong>the</strong>morality <strong>of</strong> aspirations”. The morality <strong>of</strong> aspirations comes from <strong>the</strong> heights <strong>of</strong>human achievements, and <strong>the</strong> morality <strong>of</strong> duty from <strong>the</strong> base. However, internalmorality <strong>of</strong> law spreads onto <strong>the</strong> field <strong>of</strong> <strong>the</strong> morality <strong>of</strong> duty, as well as on <strong>the</strong>field <strong>of</strong> <strong>the</strong> morality <strong>of</strong> aspirations. The duties consist <strong>of</strong> prohibitions, whileinternal morality calls also for positive demands and actions suited to <strong>the</strong>m. 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 <strong>the</strong> case with <strong>the</strong> positive desiderata or requirements (forinstance, where it should be determined whe<strong>the</strong>r <strong>the</strong> law passed is clear andunderstandable to a sufficient extent).Having defined <strong>the</strong> notion <strong>of</strong> law as a purposive activity resulting in alegal system, Fuller lists eight necessary requirements (conditions, principles,elements) upon which <strong>the</strong> existence and realization <strong>of</strong> lawfulness depend ineach legal system. They are: generality, promulgation, prospectivity, clarity,compatibility, possibility, constancy <strong>of</strong> legal rules and congruence among <strong>the</strong>rules declared and administered. To <strong>the</strong> set <strong>of</strong> <strong>the</strong>se eight desiderata Fuller gives<strong>the</strong> name <strong>of</strong> ”internal morality <strong>of</strong> law”, which also contains morality that makeslaw at all possible. However, when discussing <strong>the</strong> object <strong>of</strong> lawgiver’s work, thanit is <strong>the</strong> case <strong>of</strong> <strong>the</strong> so called ”external morality <strong>of</strong> law”.Between internal and external morality a conflict may arise. However, aconflict may also arise within <strong>the</strong> internal morality <strong>of</strong> law itself. Fuller stresses<strong>the</strong> possibility <strong>of</strong> such an occurrence whe<strong>the</strong>r because <strong>the</strong> need for constancy <strong>of</strong><strong>the</strong> law comes into conflict with frequent modifications, or due to <strong>the</strong> changes inactual circumstances or human beliefs, or even due to <strong>the</strong> strict adherence to <strong>the</strong>eight requirements <strong>of</strong> internal morality <strong>of</strong> law, since simply meeting <strong>the</strong>m still
140Dragan M. Mitrovićdoes not suffice for <strong>the</strong> positive law to become or remain correct (good, suitable),as it is extremely difficult to draw a clear line between <strong>the</strong> use and abuse <strong>of</strong> law.The mentioned requirements, at <strong>the</strong> same time also <strong>the</strong> measures <strong>of</strong>internal morality <strong>of</strong> law, are primarily <strong>of</strong> process, i.e., procedural character.They fail to impart anything reliable on <strong>the</strong> important aims <strong>of</strong> law, since <strong>the</strong>yare neutral with regard to a larger set <strong>of</strong> ethical questions. However, internalmorality may not be neutral when it comes to <strong>the</strong> very comprehension <strong>of</strong> man.That is why <strong>the</strong> abandoning <strong>of</strong> internal morality <strong>of</strong> law, stresses Fuller, iscontrary to <strong>the</strong> dignity that makes man a being <strong>of</strong> freedom.Human dignity, however, is not <strong>the</strong> only aim to be reached by <strong>the</strong> internalmorality <strong>of</strong> law. They are also justice, as well as human nature itself, capable <strong>of</strong>comprehending justice. That is why Fuller in his book especially deals with <strong>the</strong>relation between inner morality and natural law, calling <strong>the</strong> results <strong>of</strong> his teachingsa particular type <strong>of</strong> natural law. For him natural law constitutes a set <strong>of</strong>requirements <strong>of</strong> practical sense that govern life in human community. Thosenatural law requirements, moreover, precede every morality and call for <strong>the</strong>existence <strong>of</strong> <strong>the</strong> 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 <strong>the</strong> internal morality<strong>of</strong> law to be a ”procedural version <strong>of</strong> natural law”. At that time he deliberatelyuses <strong>the</strong> term ”procedural”, attributing to it a particular and extensive meaning,which contains also <strong>the</strong> essential ”congruence between <strong>of</strong>ficial activity and apromulgated law”.Fuller’s wish is to overcome, through his teachings, <strong>the</strong> breach between<strong>the</strong> formal and substantive contents <strong>of</strong> law, which is present both in positivismand in natural law doctrine as well. While many positivists believe that even <strong>the</strong>worst law is valid provided it is formally correct, <strong>the</strong> advocates <strong>of</strong> natural lawclaim <strong>the</strong> opposite: that no formally and correctly promulgated law is actuallycorrect, until it becomes morally good as well. In an effort to overcome <strong>the</strong>existing gap, Fuller underscores that substantive content <strong>of</strong> law should bediscussed only within <strong>the</strong> framework <strong>of</strong> its external morality. However, <strong>the</strong> formand content <strong>of</strong> 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 <strong>the</strong>discussion <strong>of</strong> <strong>the</strong> morality <strong>of</strong> law, despite <strong>the</strong> fact that it can be said that eachform <strong>of</strong> law is moral since <strong>the</strong> requirements <strong>of</strong> internal morality have beenobserved. Only <strong>the</strong>n, believes Fuller, after <strong>the</strong>se requirements have been met, or
Lon Fuller’s Legal Philosophy on <strong>the</strong> Morality <strong>of</strong> Law in View... 141when <strong>the</strong>y have at least been discussed, <strong>the</strong> necessary relation between <strong>the</strong> 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 <strong>the</strong> ”correct”, and thus ”good” legal order. Law meeting <strong>the</strong>requirements <strong>of</strong> justice and morality, or at least man’s idea <strong>of</strong> what it ought tobe, constitutes <strong>the</strong> correct order. In o<strong>the</strong>r words, without respecting <strong>the</strong> minimumrequirements <strong>of</strong> internal morality <strong>of</strong> law, no law can be established in <strong>the</strong> form<strong>of</strong> a correct order. For a correct order, however, that requirement is only anecessary, but not a sufficient requirement. Along <strong>the</strong>se lines Fuller modernizedlegal <strong>the</strong>ory, law and society.IIILon Fuller developed his procedural natural law teachings in an effort toovercome <strong>the</strong> 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 <strong>the</strong> present day. Still more absurd would be <strong>the</strong> claim that eachdiscussion on <strong>the</strong> form <strong>of</strong> law is completely devoid <strong>of</strong> moral judgement. Andthat should quite suffice for <strong>the</strong> overall evaluation <strong>of</strong> Fuller’s contribution tolegal philosophy and <strong>the</strong>ory to be painted in a much better light.What still attracts much attraction in our day about Fuller’s teachings isthat it <strong>of</strong>fers a choice to mankind!Fuller brings law in <strong>the</strong> closest possible relation with <strong>the</strong> market, which isnot so <strong>of</strong>ten emphasised when his work is discussed. Moreover, he believes thatlaw is moral only when related to <strong>the</strong> market order. That is why throughout ”TheMorality <strong>of</strong> Law” <strong>the</strong> spirit <strong>of</strong> endeavour and enterprise is constantly present,and because <strong>of</strong> that his concept <strong>of</strong> law constitutes a giant panel <strong>of</strong> creation andconstant rediscovery <strong>of</strong> law. Only thus can we understand Fuller’s healthyscepticism about <strong>the</strong> enterprises <strong>of</strong> <strong>the</strong> lawgivers, as well as his placing emphasison spontaneous creation <strong>of</strong> law, primarily through customs and legal precedents,since he sees <strong>the</strong> way for improving law to be through developing humancommunication, ra<strong>the</strong>r than through <strong>the</strong> lawgivers. That is why only in thisdynamic and procedural way we can understand his justified concern for <strong>the</strong>more and more present crisis <strong>of</strong> public law in <strong>the</strong> West, which is even today
142Dragan M. Mitrovićcharacterized by high crime rates and growing expenditures <strong>of</strong> <strong>the</strong> countriesattempting to fight that evil. However, only in that way his justified concern for<strong>the</strong> consequences already foreseen in his times can be understood, <strong>the</strong> breakdown<strong>of</strong> <strong>the</strong> regimes in <strong>the</strong> countries <strong>of</strong> Central and Eastern Europe, <strong>the</strong> breakdownthat is today quite evident, with <strong>the</strong> focal problem being <strong>the</strong> perverted law.Fuller stresses that such parallel processes in <strong>the</strong> West and East make normalaccomplishment <strong>of</strong> morality in general as a predominant legal concept difficultor even impossible.When answering <strong>the</strong> question which society is best, Fuller stresses that itis <strong>the</strong> society <strong>of</strong> economic entrepreneurs in <strong>the</strong> broadest sense, and, like F. A.Hayek, establishes a connection between <strong>the</strong> rule <strong>of</strong> law and <strong>the</strong> market order.With this idea, <strong>of</strong> re-establishing <strong>the</strong> need for free human communication –without which law, and order based on <strong>the</strong> law, may not be realized, thusendangering <strong>the</strong> very survival <strong>of</strong> mankind – Fuller in a way completes <strong>the</strong> veryessence <strong>of</strong> his legal thought.Although law is <strong>the</strong> prerequisite <strong>of</strong> good law, legal rules <strong>the</strong>mselves arenot sufficient. The morality is needed, since it makes law possible.
2 Marko Božić, AssistantFaculty <strong>of</strong> Law, Novi Sad, SerbiaJOHN FINNIS, THE HEIR OF THE AQUINIANNATURAL LAW TRADITIONAbstract: The paper is an attempt to establish <strong>the</strong> extent to which <strong>the</strong> neo-Aquinian natural law <strong>the</strong>ory <strong>of</strong> a contemporary Anglo-<strong>American</strong> author JohnFinnis inherits <strong>the</strong> ideas <strong>of</strong> Thomas Aquinas. Our aim is to discover where, howand to what extent John Finnis inherits <strong>the</strong> philosophical thought <strong>of</strong> ThomasAquinas. In that respect our analysis is focused on <strong>the</strong> basic terms <strong>of</strong> Finnis’philosophical and legal construction, which is observed from <strong>the</strong> viewpoint <strong>of</strong><strong>the</strong> neo-Aquinian nature.Key words: natural law, neo-Aquinianism, law, ethics, basic good, practicalreasonableness, common goodIntroductory RemarksTrends in <strong>the</strong> contemporary <strong>the</strong>ory and philosophy <strong>of</strong> law are, amongo<strong>the</strong>rs, marked by a revived interest in religion as well as attempts to approachlaw with a stronghold in <strong>the</strong>ology. Within <strong>the</strong>se tendencies a neo-Aquinian <strong>the</strong>ory<strong>of</strong> law has arisen as a bold attempt to base <strong>the</strong> explanations <strong>of</strong> <strong>the</strong> phenomenon<strong>of</strong> law on <strong>the</strong> learnings <strong>of</strong> Thomas Aquinas. Modern neo-Aquinianism, basedon <strong>the</strong> system <strong>of</strong> thinking from <strong>the</strong> 13 th century, represents an ”exotic endeavor”in <strong>the</strong> contemporary philosophy <strong>of</strong> law and speaks in favor <strong>of</strong> current relevance<strong>of</strong> <strong>the</strong> learning <strong>of</strong> Thomas Aquinas, even on <strong>the</strong> threshold <strong>of</strong> <strong>the</strong> 21 st century 1 .1This revival <strong>of</strong> interest in Aquinas and his system <strong>of</strong> thinking, primarily among Catholicintellectuals, was increased after 1879 and <strong>the</strong> papal encyclical Aeterni Patris, where LeoXIII declared <strong>the</strong> great scholastic <strong>the</strong> greatest among all scholastics. Since <strong>the</strong>n <strong>the</strong>re has beena development <strong>of</strong> different, even diametrically opposite doctrines, all <strong>of</strong> which have beencreated on <strong>the</strong> foundations <strong>of</strong> Aquinas’ learning, and whose only common denominator is<strong>the</strong> name <strong>of</strong> <strong>the</strong>ir medieval paragon.
144Marko BožićAmong a number <strong>of</strong> neo-Aquinian authors <strong>the</strong> name <strong>of</strong> a contemporaryauthor, John Finnis, stands out. Although he was born in Britain, Finnis hasbuilt his career outside its borders as well, but always within <strong>the</strong> countries <strong>of</strong> <strong>the</strong>Anglo-Saxon legal tradition: he graduated from <strong>the</strong> faculty <strong>of</strong> law in Australia,he received his PhD degree at Oxford and he has taught worldwide as a visitingpr<strong>of</strong>essor, especially in <strong>the</strong> USA 2 . His name is connected with a bibliographydominated by topics from general law, philosophy and <strong>the</strong>ory <strong>of</strong> law, but alsoby articles from <strong>the</strong> fields <strong>of</strong> international, criminal and constitutional legalscience 3 .Serbian <strong>the</strong>ory <strong>of</strong> law has paid some attention to Finnis by observing hisworks in general. For that reason we have <strong>the</strong> task to analyze a particularlyimportant aspect <strong>of</strong> his philosophy: <strong>the</strong> connection it establishes with its scholasticmodel, i.e. Aquinian philosophy <strong>of</strong> law.The aim <strong>of</strong> this paper is, <strong>the</strong>refore, to ascertain where, how and to whatextent John Finnis follows <strong>the</strong> philosophical thought <strong>of</strong> Thomas Aquinas. Dueto limitations imposed by space, we shall only define to what degree <strong>the</strong> basicconcepts <strong>of</strong> ethics and <strong>the</strong>ory <strong>of</strong> law <strong>of</strong> John Finnis correspond to complementaryconcepts <strong>of</strong> Aquinas’ thought. Our task is to use a comparative analysis <strong>of</strong> <strong>the</strong>original Aquinian learning and basic Finnis’ ideas in order to stress <strong>the</strong> similaritiesand differences between <strong>the</strong> two authors, i.e. to determine to what extent <strong>the</strong>two thoughts correspond in <strong>the</strong> heritage <strong>of</strong> <strong>the</strong> same jusnaturalist tradition.Regarding methodology, our comparative approach relies on Aquinas’Summa Theologica and The State on <strong>the</strong> 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 pr<strong>of</strong>essor several times at many universities all around <strong>the</strong> world, especiallyin <strong>the</strong> USA. In <strong>the</strong> same capacity he has taught at law schools in Boston and Berkeley,California. Today he works at <strong>the</strong> Notre Dame Law School in Washington, which ”shares”him with British Oxford.3Finnis’ bibliography is impressive and consists <strong>of</strong> a large number <strong>of</strong> 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 <strong>of</strong>Ethics (1983), Moral Absolutes: Tradition, Revision and Truth (1991).
John Finnis, <strong>the</strong> Heir <strong>of</strong> <strong>the</strong> Aquinian Natural Law Tradition 1451 Tomas Aquinas and Finnis’ Substantive JusnaturalismUndoubtedly, John Finnis can be described primarily as one <strong>of</strong> <strong>the</strong>contemporary authors who have dedicated <strong>the</strong>ir work to reviving <strong>the</strong> idea <strong>of</strong>natural law. In addition, it should be stressed that <strong>the</strong> character <strong>of</strong> Finnis’jusnaturalism is to a large extent <strong>the</strong> consequence <strong>of</strong> his confession. Namely,John Finnis is one <strong>of</strong> <strong>the</strong> most important Catholic thinkers, who draws hisinspiration directly from <strong>the</strong> works <strong>of</strong> <strong>the</strong> classics <strong>of</strong> natural law.This is why we think that a proper understanding <strong>of</strong> his works should beimmediately preceded by establishing to what degree he follows <strong>the</strong> viewpoints<strong>of</strong> antique, medieval and scholastic authorities, <strong>the</strong> vanguard <strong>of</strong> which is ThomasAquinas. We are <strong>the</strong>refore focusing our attention on <strong>the</strong> question: what is <strong>the</strong>essence <strong>of</strong> Finnis’ natural law, i.e. what is <strong>the</strong> connection between his andAquinas’ jusnaturalism?Finnis’ natural law <strong>the</strong>ory is based on two central terms – <strong>the</strong> concepts <strong>of</strong>basic good and practical reasonableness. Consequently, to explain Finnis andhis jusnaturalist concept would be to explain <strong>the</strong> place and role <strong>of</strong> <strong>the</strong>se twoterms, simultaneously having in mind <strong>the</strong>ir special relationship.1.1 Basic GoodJohn Finnis’ natural law <strong>the</strong>ory begins with <strong>the</strong> concept <strong>of</strong> basic good.Basic goods are fundamental human values, things that make life worth living.They represent <strong>the</strong> foundations <strong>of</strong> human existence and, according to Finnis,<strong>the</strong>re are seven <strong>of</strong> <strong>the</strong>m: human life, knowledge, play, es<strong>the</strong>tic appreciation,friendship, practical reasonableness and religion 4 . These seven basic goods are4It is important to stress <strong>the</strong> difference between basic goods, which are listed by ThomasAquinas, and a set <strong>of</strong> seven basic goods which are recognized by Finnis. Namely, ThomasAquinas in Summa Theologica gives a general definition <strong>of</strong> <strong>the</strong> concept <strong>of</strong> basic good, whichhe defines as <strong>the</strong> value man spontaneously strives for in his own nature, and continues toexplain that life and knowledge are examples <strong>of</strong> such basic goods, without trying to list <strong>the</strong>m.On <strong>the</strong> o<strong>the</strong>r hand, Finnis, who accepts <strong>the</strong> Aquinian <strong>the</strong>sis <strong>of</strong> basic goods, feels <strong>the</strong> need tomake a complete list <strong>of</strong> <strong>the</strong>m. Aware that <strong>the</strong> seven basic goods he lists are surely not anexhaustive list <strong>of</strong> values man searches for, he continues to confess that <strong>the</strong> list can neverbe concluded and that forms <strong>of</strong> human goods are many. Thus, although he claims that o<strong>the</strong>rgoods represent only roads to <strong>the</strong> basic seven goods, Finnis questions <strong>the</strong> necessity <strong>of</strong> anyenumeration.
146Marko Božićnatural inclinations <strong>of</strong> a human being, values one spontaneously strives forrecognizing in <strong>the</strong>m aspects <strong>of</strong> one’s own well-being.Finnis essentially acquires <strong>the</strong> concept and determination <strong>of</strong> 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 <strong>of</strong> pursuit, and <strong>the</strong>ir contraries as evil,and objects <strong>of</strong> avoidance. Wherefore according to <strong>the</strong> order <strong>of</strong> natural inclinations,is <strong>the</strong> order <strong>of</strong> <strong>the</strong> precepts <strong>of</strong> <strong>the</strong> natural law.” 5 Aquinas consequently says thatman recognizes basic goods spontaneously, as natural inclinations <strong>of</strong> his rationalbeing, i.e. as objective and universal values. This is where Finnis really followsAquinas’ ideas 6 and for <strong>the</strong> 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 <strong>the</strong> meaning <strong>of</strong> one’s own existence, i.e. to actualize oneself as ahuman being. Finnis says that ”basic forms <strong>of</strong> good are opportunities <strong>of</strong> being;<strong>the</strong> more fully a man participates in <strong>the</strong>m, <strong>the</strong> more he is what he can be” 8 . Assuch, basic goods represent goals <strong>of</strong> man’s rational activity, reasons why people doconcrete things in life. That is precisely why Finnis determines <strong>the</strong>m as practicalprinciples, because <strong>the</strong>ir purpose is to position man’s practical reasoning 9 .They represent <strong>the</strong> first principles <strong>of</strong> man’s activity, <strong>the</strong> premises <strong>of</strong> 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 Fa<strong>the</strong>rs <strong>of</strong> <strong>the</strong> EnglishDominican Province, http://www.newadvent.org/summa)6More precisely, Aquinas talks about <strong>the</strong> most general principles (principia communissima),which everyone knows <strong>of</strong> (que sunt omnibus nota) in <strong>the</strong>mselves (per se nota) and whichcannot be proven (indemonstrabilia). See: ibid, q. 94, a. 6 c.7Self-evidence is <strong>the</strong> quality <strong>of</strong> 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 o<strong>the</strong>r way. Having quotedThomas Aquinas, he claims that <strong>the</strong>se are axiological categories which are self-evident (perse nota) and as such absolutely underivable from any speculative principles, metaphysicalattitudes and o<strong>the</strong>r philosophical presuppositions or <strong>the</strong>ological truths. By insisting on self--evidence <strong>of</strong> basic goods Finnis manages to build a <strong>the</strong>ory <strong>of</strong> ethical behavior without explicitlymentioning God, staying equally open both to <strong>the</strong>istic and a<strong>the</strong>istic points <strong>of</strong> 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, <strong>the</strong> Heir <strong>of</strong> <strong>the</strong> Aquinian Natural Law Tradition 147However, if basic goods are <strong>the</strong> point where Aquinas’ and Finnis’ naturallaw <strong>the</strong>ories meet, <strong>the</strong>y are also <strong>the</strong> point where <strong>the</strong>y diverge. Like manyauthors 11 have noticed so far, what Finnis actually takes from Aquinas is hisideas <strong>of</strong> basic goods as principles <strong>of</strong> mundane well-being. Both Aquinas andFinnis consider <strong>the</strong>m principles <strong>of</strong> human happiness, but only Finnis thinks<strong>the</strong>y are enough for achieving well-being. Unlike Finnis, Aquinas considers thishappiness a temporal, mundane and ephemeral amenity, <strong>the</strong> so-called beatitudoimperfecta. To Aquinas a real bliss, a true happiness, <strong>the</strong> one ethics is directedtowards, aims at reaching and knowing <strong>the</strong> so-called universal good – God 12 .In that respect Finnis is only partially loyal to Aquinian ethics. He, unlikeAquinas, is occupied by <strong>the</strong> question <strong>of</strong> a morality which would, in simplestwords, be a road to a good life <strong>of</strong> an individual. Finnis is interested in <strong>the</strong>mundane happiness <strong>of</strong> people. He leaves God aside 13 .Finding <strong>the</strong> purpose <strong>of</strong> moral action in mundane life, Finnis has approachedAristotle in his ethics and distanced it from Thomas Aquinas 14 . On <strong>the</strong> o<strong>the</strong>rhand, 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 <strong>of</strong> commongood as a key concept <strong>of</strong> <strong>the</strong> (neo)Aquinian legal and political philosophy. These twoapproaches are very close, this primarily being supported by <strong>the</strong> similarity <strong>of</strong> connotations<strong>of</strong> this concept with both authors. Namely, Maritain, like Finnis, under common goodsubsumes a set <strong>of</strong> those things which provide each member <strong>of</strong> a community an opportunityto perfect <strong>the</strong>ir lives and personal freedom, simultaneously enabling a harmonious life <strong>of</strong> acommunity as a whole. Yet, unlike Finnis, Maritain refrains from closing this set <strong>of</strong> things,but ra<strong>the</strong>r, exempli causa, delimits his list <strong>of</strong> elements <strong>of</strong> common good to <strong>the</strong> mostcharacteristic and obvious examples. However, here also a striking similarity can be foundbetween Finnis’ list <strong>of</strong> seven basic goods and Maritain’s examples. Thus, Maritain’s concepts <strong>of</strong>wisdom in action and spiritual wealth are a perfect match with Finnis’ practical reasonablenessand religion, while o<strong>the</strong>r goods, like friendship, are explicitly stated by both authors.13Although not completely. It should not be forgotten that Finnis includes in <strong>the</strong> list <strong>of</strong>basic goods <strong>the</strong> need for religion which <strong>of</strong>fers us a special, non-empirical explanation <strong>of</strong>first and last questions <strong>of</strong> man’s world. In that manner God (or ano<strong>the</strong>r form <strong>of</strong> religiousexplanation) gets his place in Finnis’ ethics, in any case not as first or last goal <strong>of</strong> man’smundane practice, but as one <strong>of</strong> seven equal basic goods.14To Aristotle reaching happiness is an act <strong>of</strong> mundane nature and is not connected with anytranscendental experience. Although Finnis does not define it in <strong>the</strong> same way as Aristotle,we consider that he places it in <strong>the</strong> same context <strong>of</strong> man’s temporal life, thus achieving moresimilarity to Aristotle than Aquinas’ thought.
148Marko Božić<strong>the</strong> borders <strong>of</strong> its accessibility, although he has not completely secularized itwith <strong>the</strong> fact that he concluded <strong>the</strong> list <strong>of</strong> his basic goods with religion – aparticular human need for <strong>the</strong> answers to first questions <strong>of</strong> man and his world.1.2 Practical ReasonablenessSince basic goods are self-evident and clear, <strong>the</strong>y are not problematic. Theyare in <strong>the</strong>mselves uncontroversial and as such are <strong>the</strong> foundations <strong>of</strong> 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 <strong>the</strong>y 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 <strong>the</strong> sense that it is not moral. Even <strong>the</strong> most indifferent ormorally hostile people can recognize and, if intelligent, recognize and use some<strong>of</strong> <strong>the</strong> first principles <strong>of</strong> practical reason” 16 . Every human being has <strong>the</strong> knowledge<strong>of</strong> basic goods and that is why <strong>the</strong>se goods are <strong>the</strong> basis <strong>of</strong> our practical andethical behavior, but <strong>the</strong>y in <strong>the</strong>mselves are simply not a moral dilemma. Theyare <strong>of</strong> 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 solved<strong>the</strong> problem <strong>of</strong> reaching <strong>the</strong>m. Knowing basic goods as a reflection <strong>of</strong> our wellbeingtells us nothing about how <strong>the</strong>y can be achieved. In o<strong>the</strong>r words, mannever has a dilemma about which values to follow, but about <strong>the</strong> road that leadsto <strong>the</strong>m, i.e. concrete actions which should be undertaken in order to achieve<strong>the</strong> set goals. So <strong>the</strong> problem does not lie in basic goods as self-evident premisesor principles <strong>of</strong> our actions, but in concrete conclusions which should be drawnfrom <strong>the</strong> premises in order to achieve <strong>the</strong>se goods. Finnis says: ”The principlesthat express <strong>the</strong> general ends <strong>of</strong> human life do not acquire, what wouldnowadays be called, a ’moral’ force until <strong>the</strong>y are brought to bear upon definiteranges <strong>of</strong> project, disposition or action, upon particular projects, dispositions oractions” 17 . The problem <strong>of</strong> ethics is, <strong>the</strong>refore, not in <strong>the</strong> presupposed goals <strong>of</strong>15J. Finnis: Natural Law and Natural Rights, Oxford, 2002, p. 86.16J. Finnis: Aquinas, Moral, Political, and Legal Theory, p. 86 and fur<strong>the</strong>r.17J. Finnis: Natural Law and Natural Rights, Oxford, 2002, 101.
John Finnis, <strong>the</strong> Heir <strong>of</strong> <strong>the</strong> Aquinian Natural Law Tradition 149action, but in <strong>the</strong> action itself. Here lie all our moral dilemmas: ”By disclosing ahorizon <strong>of</strong> attractive possibilities for us, our grasp <strong>of</strong> <strong>the</strong> basic values thuscreates not answers, <strong>the</strong> problem for intelligent decision” 18 .The question is to what degree Finnis follows ethical learning <strong>of</strong> ThomasAquinas in this respect. Surely for him, as well as for <strong>the</strong> medieval scholastic,<strong>the</strong> basic problem <strong>of</strong> ethics remains in making right moral judgments on <strong>the</strong>basis <strong>of</strong> self-evident principles 19 . Following Aristotle, <strong>the</strong>y recognize well-beingin action, ”<strong>the</strong> activity which perfects <strong>the</strong> greatest capability <strong>of</strong> man by directingit to <strong>the</strong> highest and most noble subjects” 20 . This is a question <strong>of</strong> a practicalethics. For both Aquinas and Finnis a moral problem is always a problem <strong>of</strong>action.After posing a problem, Finnis now has to solve it. This is where heintroduces <strong>the</strong> second fundamental concept <strong>of</strong> his ethics – practical reasonableness.It is seen by Finnis as <strong>the</strong> capability <strong>of</strong> reasoning and deciding with <strong>the</strong> aimto make decisions and act and is determined as ”<strong>the</strong> capability <strong>of</strong> one’s ownintelligence to successfully deal with personal problems <strong>of</strong> choosing one’s ownactions, life style and shaping one’s own character” 21 . Practical reasonablenessis an intellectual capacity <strong>of</strong> 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 <strong>the</strong>introduction <strong>of</strong> practical reasonableness did Finnis completely unveil his neo-Aquinian face. Practical reasonableness is at <strong>the</strong> heart <strong>of</strong> Aristotle’s phronesis,i.e. prudentia <strong>of</strong> Thomas Aquinas – practical wisdom or reasonableness as aspecial ability <strong>of</strong> <strong>the</strong> intellect to discern right from wrong in man’s practicalaction. Like classical authors whose thought he follows, in respecting <strong>the</strong> demands<strong>of</strong> practical reasonableness Finnis sees a criterion <strong>of</strong> ethic self-realization <strong>of</strong> ahuman being. Only to <strong>the</strong> extent <strong>of</strong> one’s reasonable actions, i.e. following <strong>the</strong>se18ibid, p. 100.19See: T. Aquinas: Summa Theologica I-II, q. 94.20F. Koplston: Istorija filoz<strong>of</strong>ije – srednjevekovna filoz<strong>of</strong>ija, Beograd, 1991, p. 449.21K. Čavoški: Uvod u pravo I, Beograd, 1999, p. 84.22Finnis lists and discusses in detail <strong>the</strong>se nine principles in Chapter 5 <strong>of</strong> his book NaturalLaw and Natural Rights. These are: existence <strong>of</strong> a rational plan for life, non-existence <strong>of</strong>arbitrary preferences among goods, non-existence <strong>of</strong> arbitrary preferences among people,abstinence, commitment, efficiency within reason, respect <strong>of</strong> every basic good in every act,fostering common good and respecting one’s own conscience.
150Marko Božićprinciples, can we come close to basic goods, <strong>the</strong> values we spontaneously strivefor. Only that can make humanity from potency.Finnis ends his natural law <strong>the</strong>ory as a moral philosophy with practicalreasonableness. This is a concept which is a corner stone <strong>of</strong> his jusnaturalism.”A consistent <strong>the</strong>ory <strong>of</strong> natural law is only <strong>the</strong> one that directly approaches <strong>the</strong>criticism <strong>of</strong> practical viewpoints with <strong>the</strong> intention to separate reasonable fromunreasonable and thus differentiate <strong>the</strong> really important from <strong>the</strong> unimportant,or is important only as unreasonable use or <strong>the</strong> opposite <strong>of</strong> really important” 23 .This is <strong>the</strong> essence <strong>of</strong> Finnis’ natural law. It is a moral <strong>the</strong>ory which is based onrespecting fundamental values and <strong>of</strong>fers practical reasonableness with its nineprinciples as a modus operandi for achieving moral good.2 Thomas Aquinas and Finnis’ Theory <strong>of</strong> LawIf understood in this way, Finnis’ natural law <strong>the</strong>ory is actually a learningwhich explains <strong>the</strong> principles <strong>of</strong> 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 <strong>the</strong> way to accomplish personal well-being. Regarding this, <strong>the</strong>questions are: what is <strong>the</strong> place <strong>of</strong> <strong>the</strong> society in this system, what is <strong>the</strong> role <strong>of</strong> <strong>the</strong>state, public authority, law and o<strong>the</strong>r concepts <strong>of</strong> a political community? Theanswers to <strong>the</strong>se questions contain Finnis’ interpretation <strong>of</strong> <strong>the</strong> role <strong>of</strong> positive law.2.1 Legitimacy <strong>of</strong> AuthorityWithout stressing <strong>the</strong> importance <strong>of</strong> <strong>the</strong> connection between an individualand <strong>the</strong> community in <strong>the</strong> 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 <strong>the</strong> necessity <strong>of</strong> <strong>the</strong> existence <strong>of</strong> society. To him itis indisputable that, besides individual good, <strong>the</strong>re is ”common good <strong>of</strong> such anall-round association [was] said to be <strong>the</strong> securing <strong>of</strong> a whole ensemble <strong>of</strong> materialand o<strong>the</strong>r conditions that tend to favor <strong>the</strong> realization, by each individual in <strong>the</strong>community, <strong>of</strong> his or her personal development” 24 . So, common good, in <strong>the</strong>sense <strong>of</strong> well-being <strong>of</strong> <strong>the</strong> 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, <strong>the</strong> Heir <strong>of</strong> <strong>the</strong> Aquinian Natural Law Tradition 151in expressions such as ”general welfare” and ”public interest” 25 , are a precondition<strong>of</strong> every individual well-being.The concept <strong>of</strong> common good is one <strong>of</strong> cardinal concepts <strong>of</strong> Finnis’jusnaturalism. Relying on this concept, he will build his understanding <strong>of</strong> positivelaw. Namely, by determining <strong>the</strong> significance <strong>of</strong> common good for an individualand society in general, he faces very important questions <strong>of</strong> its realization: whodecides on <strong>the</strong> matters <strong>of</strong> common good, how are such decisions made and whoputs <strong>the</strong>m into action?In Finnis’ opinion, within one community common good could,<strong>the</strong>oretically speaking, be accomplished ei<strong>the</strong>r by consent <strong>of</strong> all its members orby establishing public authority. He has taken this dilemma from SummaTheologica, where Aquinas says: ”Now to order anything to <strong>the</strong> common good,belongs ei<strong>the</strong>r to <strong>the</strong> whole people, or to someone who is <strong>the</strong> viceregent <strong>of</strong> <strong>the</strong>whole people (gerens vicem totius multitudinis). And <strong>the</strong>refore <strong>the</strong> making <strong>of</strong> alaw belongs ei<strong>the</strong>r to <strong>the</strong> whole people or to a public personage who has care <strong>of</strong><strong>the</strong> whole people: since in all o<strong>the</strong>r matters <strong>the</strong> directing <strong>of</strong> anything to <strong>the</strong> endconcerns him to whom <strong>the</strong> 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 – <strong>the</strong> political community’s – good life, too,requires that <strong>the</strong> group act well. But <strong>the</strong>re is a precondition for acting well: <strong>the</strong>unity <strong>of</strong> <strong>the</strong> acting being’s parts. In individual human beings, this pre-conditionis secured by nature. But in communities, <strong>the</strong> needed unity <strong>of</strong> life, <strong>the</strong> unity called’peace’ {pax}, has to be procured by governance {per regentis industrian}.” 27 .Finnis in effect takes over Aquinas’ justification <strong>of</strong> public authority, which isnecessary to realize common good – necessary material conditions for <strong>the</strong>affirmation <strong>of</strong> each personal progress and individual well-being.Acquiring Aquinas’ ideas about <strong>the</strong> legitimity <strong>of</strong> 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 <strong>of</strong> 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 <strong>of</strong> public authority is not completely identical to that <strong>of</strong> ThomasAquinas, though, all <strong>the</strong> more since Aquinas’ last justification <strong>of</strong> its authority comes fromits Biblical origin and rests on a well-known saying ”There is no power but <strong>of</strong> God”.
152Marko Božićwhich direct <strong>the</strong> community towards common good 29 . In that respect he directlytouches upon Aquinas who, in <strong>the</strong> definition <strong>of</strong> human law, says: ”It is nothing elsethan an ordinance <strong>of</strong> reason for <strong>the</strong> common good, made by him who has care <strong>of</strong><strong>the</strong> community, and promulgated.” 30 . This understanding <strong>of</strong> <strong>the</strong> source <strong>of</strong> publicauthority and <strong>the</strong> essence <strong>of</strong> law is directly continued in o<strong>the</strong>r classical authors.Namely, antique political philosophy determines <strong>the</strong> function <strong>of</strong> <strong>the</strong> state asachieving common good and just order. Public authority also exists in order tosecure common good <strong>of</strong> a political community through its decisions. This is a veryold idea and is perhaps best illustrated by Aquinas’ idea about <strong>the</strong> nature <strong>of</strong> law andregulations: ”Consequently, since <strong>the</strong> law is chiefly ordained to <strong>the</strong> common good,any o<strong>the</strong>r precept in regard to some individual work, must needs be devoid <strong>of</strong> <strong>the</strong>nature <strong>of</strong> a law, save in so far as it regards <strong>the</strong> common good. Therefore every law isordained to <strong>the</strong> common good.” 31 .According to Finnis, for common good to be really protected by positivelaw, <strong>the</strong> decisions <strong>of</strong> public authority must <strong>the</strong>mselves be based on <strong>the</strong> principles<strong>of</strong> practical reasonableness. Only <strong>the</strong>n would law enable <strong>the</strong> accomplishment <strong>of</strong>basic human goods and values. This is exactly <strong>the</strong> connection between naturaland positive law which Finnis takes from Aquinas: while making decisions,every legislator must abide by <strong>the</strong> principles <strong>of</strong> practical reasonableness, should actreasonably, i.e. in accordance with natural law 32 . Only <strong>the</strong>n 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 <strong>the</strong> rule-guided stipulations <strong>of</strong>adjuticative institutions, this assembly <strong>of</strong> rules and institutions being directed reasonablyresolving any <strong>of</strong> <strong>the</strong> community’s co-ordination problems (and to ratifying, tolerating,regulating, or overriding co-ordination solutions from any o<strong>the</strong>r institutions or sources <strong>of</strong>norms) for <strong>the</strong> common good <strong>of</strong> that community, according to a manner and form itselfadapted to that common good by features <strong>of</strong> specificity, minimization <strong>of</strong> arbitrariness, andmaintenance <strong>of</strong> a quality <strong>of</strong> reciprocity between <strong>the</strong> subjects <strong>of</strong> <strong>the</strong> law both amongst<strong>the</strong>mselves and in <strong>the</strong>ir relations with <strong>the</strong> 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 <strong>of</strong> deducting positive law rules from <strong>the</strong>principle <strong>of</strong> natural law: modum conclusionis and modum determinationis, i.e. throughimmediate conclusion from <strong>the</strong>se universal principles and through a closer determinationor concretization <strong>of</strong> a general principle <strong>of</strong> natural law. Finnis is trying to distinguish <strong>the</strong>se
John Finnis, <strong>the</strong> Heir <strong>of</strong> <strong>the</strong> Aquinian Natural Law Tradition 153<strong>the</strong> function <strong>of</strong> his authority and contribute to common good by enabling eachindividual to achieve one’s own progress in life.Such views <strong>of</strong> law are <strong>the</strong> finest illustration <strong>of</strong> neo-Aquinianism <strong>of</strong> JohnFinnis. In o<strong>the</strong>r words, a parallel between <strong>the</strong> two authors could be stressedbecause, when Aquinas says: ”The political order is <strong>the</strong> rule <strong>of</strong> justice. The ruler isexpected to rule according to laws and <strong>the</strong>se laws must be just. That means that<strong>the</strong>y cannot be an arbitrary expression <strong>of</strong> will, whe<strong>the</strong>r it is individual orcollective, but a reasonable inference from <strong>the</strong> principle <strong>of</strong> justness which Godhas unveiled to man” 33 , Finnis continues, centuries later: ”The name commonlygiven to <strong>the</strong> state <strong>of</strong> affairs in which a legal system is legally in good shape is ’<strong>the</strong>Rule <strong>of</strong> Law’” 34 . Actually, to Finnis <strong>the</strong> rule <strong>of</strong> law is in fact nothing else than alegal system which respects <strong>the</strong> principles <strong>of</strong> practical reasonableness, i.e. it is asystem <strong>of</strong> positive law which follows <strong>the</strong> principles <strong>of</strong> natural law 35 . In such cases<strong>the</strong> legal norm has, not only a legally binding, but a morally binding strength.Such norms, in <strong>the</strong> words <strong>of</strong> Thomas Aquinas, ”bind a man in his conscience” 36 .2.2 Respecting an Unjust LawWhat Finnis considers a special problem is <strong>the</strong> situation when publicauthority and its decisions have not procured <strong>the</strong> necessary legitimity, whenwhen he says that ”deriving law from basic principles <strong>of</strong> practical reasonableness trulypossesses two main modalities identified and named by Thomas Aquinas; but <strong>the</strong>y 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 <strong>the</strong> preface T. Aquinas:The State, р. 21.34J. Finnis, Natural Law and Natural Rights, Oxford, 2002, p. 270.35Finnis recognizes all seven principles <strong>of</strong> <strong>the</strong> Rule <strong>of</strong> Law. It exists only when <strong>the</strong> legalsystem is such that: 1) its rules are prospective and not retroactive; 2) <strong>the</strong> rules are in nomanner such that <strong>the</strong>y are impossible to abide by; 3) its rules are promulgated; 4) its rule arecoherent one with ano<strong>the</strong>r; 5) its rules are stabile enough to enable people to be directed byits knowledge <strong>of</strong> <strong>the</strong> contents <strong>of</strong> <strong>the</strong> rules; 6) <strong>the</strong> bringing <strong>of</strong> decrees and orders applicableto relatively limited situations are directed by <strong>the</strong> rules which have been promulgated, clear,stabile and relatively general; 7) those people who possess authority to create, apply anduphold <strong>the</strong> rules in <strong>of</strong>ficial capacity a) responsible for <strong>the</strong>ir behavior in accordance withrules which can be applied onto <strong>the</strong>m and b) actually apply law in accordance with its spirit.These views, Finnis says, have been taken from o<strong>the</strong>r authors. In that respect <strong>the</strong> similarity<strong>of</strong> his <strong>the</strong>ory to that <strong>of</strong> Lon Fuller on <strong>the</strong> interior morality <strong>of</strong> law is evident.36T. Aquinas: Summa Theologica I-II, q. 96, a. 4 c.
154Marko Božićpositive law, created by <strong>the</strong> will <strong>of</strong> bearers <strong>of</strong> public authority, has not beenfounded on <strong>the</strong> principles <strong>of</strong> practical reasonableness, which in itself is not infavor <strong>of</strong> common good. The question is if <strong>the</strong> legal rule <strong>of</strong> corrupt authority staysbinding.According to Finnis, what gives a decision a character <strong>of</strong> justness is <strong>the</strong>fact that this decision comes from <strong>the</strong> power <strong>of</strong> 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 <strong>the</strong> regulation <strong>of</strong> 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 <strong>of</strong> positive law. However, such a regulation,being distanced from justice, loses its moral strength and stops binding man inhis conscience. Actually, in cases when <strong>the</strong> aforementioned principles <strong>of</strong> naturallaw are not respected, i.e. when <strong>the</strong> power <strong>of</strong> public authority is used againstgeneral interest, <strong>the</strong> 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 <strong>the</strong> principles<strong>of</strong> practical reasonableness does not stop being a law, although its characteristic<strong>of</strong> law is diminished, it is less legal or, in o<strong>the</strong>r words, is not completely law” 37 .Although it seems that by making <strong>the</strong>se claims Finnis radically departsfrom one <strong>of</strong> <strong>the</strong> most recognizable Aquinian <strong>the</strong>ses – 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 <strong>the</strong> opposite case an unjust law stays a merepositive law regulation devoid <strong>of</strong> full legitimity and inner moral strength 39 .37Vukadinović, G. Stepanov, R. Teorija prava I, (Theory <strong>of</strong> Law), p. 517.38Latin for: Unjust law is no law.39Actually, in his Summa Theologica Aquinas says: ” On <strong>the</strong> o<strong>the</strong>r hand laws may be unjustin two ways: first, by being contrary to human good, through being opposed to <strong>the</strong> thingsmentioned above – ei<strong>the</strong>r in respect <strong>of</strong> <strong>the</strong> end, as when an authority imposes on hissubjects burdensome laws, conducive, not to <strong>the</strong> common good, but ra<strong>the</strong>r to his owncupidity or vainglory – or in respect <strong>of</strong> <strong>the</strong> author, as when a man makes a law that goesbeyond <strong>the</strong> power committed to him – or in respect <strong>of</strong> <strong>the</strong> form, as when burdens areimposed unequally on <strong>the</strong> community, although with a view to <strong>the</strong> common good. The likeare acts <strong>of</strong> violence ra<strong>the</strong>r 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, <strong>the</strong> Heir <strong>of</strong> <strong>the</strong> Aquinian Natural Law Tradition 155In that manner Finnis’ doctrine becomes widely accepted and equallywell resounds not just among supporters <strong>of</strong> <strong>the</strong> revival <strong>of</strong> natural law, but alsoamong <strong>the</strong> followers <strong>of</strong> legal positivism. It plays <strong>the</strong> part <strong>of</strong> a compromise. ”Areason for that should simply be sought in <strong>the</strong> fact that its comprehension doesnot represent an antipode, but a complement <strong>of</strong> <strong>the</strong> attitudes <strong>of</strong> positivists,especially in <strong>the</strong> part where Finnis’ attitudes are compatible with <strong>the</strong> <strong>the</strong>orybased on sources according to which law, even if unjust, is formally validbecause <strong>of</strong> 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 <strong>the</strong>e one mile, go with him o<strong>the</strong>r 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 <strong>of</strong> 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 <strong>of</strong> <strong>the</strong> top twentylegal scholars in US. But his pragmatism, his qualified moral relativism, and hisaffection for <strong>the</strong> philosophy <strong>of</strong> Friedrich Nietzche set him apart from most<strong>American</strong> conservatives. His style is approachable, his explanations almostalways clear, although he is well know for his polemical style. His influences are<strong>the</strong> <strong>American</strong> jurist Holmes and Hend. Posner has written several books onjurisprudence and philosophy <strong>of</strong> law: Law, Pragmatism and Democracy, TheProblems <strong>of</strong> <strong>Jurisprudence</strong>, The Problematics <strong>of</strong> Moral and Legal Theory. Posner’sphilosophy is <strong>of</strong>ten controversial, but its contribution is significant whatever<strong>the</strong> subject at hand is.The book <strong>of</strong> Richard A. Posner The Problematics <strong>of</strong> Moral and Legal Theory,grew out <strong>of</strong> series <strong>of</strong> lectures given in 1997 at – Harvard, New York University,and at <strong>the</strong> University <strong>of</strong> Arizona.In this book, he argues why moral <strong>the</strong>ory should not influence <strong>the</strong>shaping <strong>of</strong> <strong>the</strong> law. His cry here is: „Free law from moral <strong>the</strong>ory” (p. 95).Posner’s primary interest is <strong>the</strong> law, but he accepted <strong>the</strong> opinion that isnow recognized that lawyers, judges, and law pr<strong>of</strong>essors can not do law withou<strong>the</strong>lp from o<strong>the</strong>r disciplines. That is becouse <strong>the</strong>y do not know enough aboutactivites that law regulates. He thinks that pr<strong>of</strong>ession needs help, but <strong>the</strong>re isdisagreement about where it should turn for help.Posner argues that moral philosophy has nothing to <strong>of</strong>fer to judges orlegal scholars in <strong>the</strong> formulation <strong>of</strong> jurisprudental or legal doctrines. For him itis particularly clear that legal issues should not be analyzed with <strong>the</strong> aid <strong>of</strong> moralphilosophy, but should instead be approached pragmatically.The book is in <strong>the</strong> two parts, each containing two chapters. The first partis primarily critical, <strong>the</strong> second primarily constructive.
Richard A. Posner: The Problematics <strong>of</strong> Moral and Legal Theory 157About moral problem he argues in <strong>the</strong> chapter Moral Theory. Posner thinksthat moral <strong>the</strong>orising does not provide a usable basis for moral judgements, andcannot make us morally better people. Even if moral <strong>the</strong>orising can provide ausable basis for moral judgements, it should not be used for making legaljudgements. Then he says that <strong>the</strong>re are no universal moral principles; <strong>the</strong>y areonly fancy dresses <strong>of</strong> social norms that vary from society to society. What isuniversal are <strong>the</strong> „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 <strong>the</strong>ory should be distinguished frommoral preachement outside <strong>the</strong> academy. The Jesus Christ <strong>of</strong> <strong>the</strong> Gospels is amoralist, but, unlike Plato and Aristotle, he is not a <strong>the</strong>orist and does not makeacademic-style arguments.From moral <strong>the</strong>ory Posner moves to legal <strong>the</strong>ory, examining how moral<strong>the</strong>ory has and might influence <strong>the</strong> law. As he sees it, <strong>the</strong> influence is extremelylimited. He cites a number <strong>of</strong> ostensibly moral legal cases, from euthanasia andabortion to segregation and finds moral <strong>the</strong>ory basically absent and unnecessaryfrom <strong>the</strong> judical decision regarding <strong>the</strong>m.In <strong>the</strong> chapter Legal <strong>the</strong>ory, moral <strong>the</strong>mes, he carries <strong>the</strong> discussionexplicitly into <strong>the</strong> relam <strong>of</strong> law. The term ”legal <strong>the</strong>ory” is not as familiar as itshould be. This chapter is about <strong>the</strong> infection <strong>of</strong> legal <strong>the</strong>ory by moral <strong>the</strong>oryand about <strong>the</strong> pr<strong>of</strong>ession’s efforts to resist <strong>the</strong> infection. Here he examines issuesin jurisprudence, constitutional law, common law and statutory law. He writesabout <strong>the</strong>se issues with reference to Dworkin, Hart and Habermas. The feature<strong>of</strong> <strong>the</strong>se jurisprudential <strong>the</strong>ories that he wants to emphasize is <strong>the</strong>ir pretensionto universality. Each <strong>the</strong>orist announces principles he thinks applicable to anylegal system. Yet, each is actually best understood as describing a national legalsystem <strong>of</strong> England in <strong>the</strong> case <strong>of</strong> Hart, <strong>American</strong> in <strong>the</strong> case <strong>of</strong> Dworkin, andGerman in <strong>the</strong> case <strong>of</strong> Habermas.The discrepancy between law and justice is an old problem, but it is obscuredby <strong>the</strong> law’s frequent borrowing <strong>of</strong> moral terminology, <strong>of</strong> terms such as „fair”and „unjust”. With reference to Holm’s thought, he says that long ago Holmswarned <strong>of</strong> <strong>the</strong> pitfalls <strong>of</strong> misunderstanding law by taking its moral vocabularytoo seriously. The law uses moral terms in part because <strong>of</strong> its origins; in part tobe impressive; in part to speak a language that <strong>the</strong> laymen to whom <strong>the</strong> commands<strong>of</strong> <strong>the</strong> law are adressed, is more likely to understand and at <strong>the</strong> end Posner
158Marko Trajkovićadmits, because <strong>the</strong>re is a considerable overlap between law and morality. Theoverlap however is too limited. Because <strong>of</strong> that it is not a big problem when <strong>the</strong>law fails to attach a sanction to immoral conduct or when it attaches a sanctionto conduct that is not immoral.In <strong>the</strong> third chapter Pr<strong>of</strong>essionalism he gives an example <strong>of</strong> how socialscience can help answer questions about <strong>the</strong> ideals <strong>of</strong> justice and actual behavior<strong>of</strong> <strong>the</strong> legal system (relations between crime and social classes, between socialclasses and criminalizing <strong>the</strong> mind-altering drugs, between <strong>the</strong> <strong>of</strong>fender and<strong>the</strong> victim, <strong>the</strong> plaintiff and <strong>the</strong> defendant, <strong>the</strong> judge and litigants), that leavetraditional thinkers confused. Sociology <strong>of</strong> law has a great part in Posner’s <strong>the</strong>ory.In this chapter we have a closer look at <strong>the</strong> practice <strong>of</strong> law. He says thatpr<strong>of</strong>essionalism is a precondition <strong>of</strong> <strong>the</strong> reform <strong>of</strong> law.Pragmatism, and that is a title for <strong>the</strong> last chapter, is <strong>the</strong> key to improvinglaw. That is <strong>the</strong> way how to get to real pr<strong>of</strong>essionalism. As he is a judge himselfhe wants to show in this chapter <strong>the</strong> work <strong>of</strong> <strong>the</strong> pragmatist judge. The judicalpragmatist has different priorites. He wants to come up with <strong>the</strong> decision that willbe best with regard to present and future cases and needs. He is not uninterested inpast decisions. Far from it. So <strong>the</strong> pragmatist judge regards precedents, statutes,and constitutional text both as sources <strong>of</strong> potentially valuable informationabout <strong>the</strong> likely best result in <strong>the</strong> present case. Inspite <strong>of</strong> his opinion about <strong>the</strong>education <strong>of</strong> lawyers, he argues that law pr<strong>of</strong>essors are not paid to train lawyersbut to study <strong>the</strong> law and teach students.This is <strong>the</strong> book devoted to <strong>the</strong> philosophy <strong>of</strong> pragmatism, which incitesdoubt, whereas doubt incites inquiry, making a judge and law pr<strong>of</strong>essors less <strong>of</strong>dogmatics and agnostics, and more <strong>of</strong> 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 <strong>of</strong> no use to lawyersand judges is very weak. Never<strong>the</strong>less, <strong>the</strong> 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 <strong>the</strong>y are being told. Provocative andinteresting <strong>the</strong> book is certainly highly recommended for all interested in moraland legal <strong>the</strong>ory.
4 Pr<strong>of</strong>. Danijela GrujićNovi Sad, SerbiaFOR THE LOVE OF ONE’S COUNTRYAND THE WORLDAbstract: In America, <strong>the</strong> academic discourse on <strong>the</strong> issue <strong>of</strong> patriotismand its limits at <strong>the</strong> end <strong>of</strong> <strong>the</strong> twentieth century 1 focuses on <strong>the</strong> basic modernpolitical anti<strong>the</strong>sis cosmopolitism versus patriotism, thus making it <strong>the</strong> startingpoint for a serious public discussion, which reaches far fur<strong>the</strong>r from its basichomeland, more precisely, far deeper than that, touching <strong>the</strong> goals <strong>of</strong> an empire,<strong>the</strong> eternal mankind. This path is very similar to <strong>the</strong> one that is walked by nationalliteratures climbing up to become world literatures, only that <strong>the</strong> interest whichit arises does not stop by <strong>the</strong> cultural, or <strong>the</strong> moral, or by <strong>the</strong> cosmopolitan view,as it is usually <strong>the</strong> case in a superficial approach. Even a certain historical interestcould be found in all this, a trial that <strong>the</strong> recent <strong>American</strong> and European historyis understood in <strong>the</strong> light <strong>of</strong> <strong>the</strong> anti<strong>the</strong>sis under consideration. At <strong>the</strong> same time,it enhances both <strong>the</strong>oretical and practical human behavior, in fact, it challengesa consequent life attitude to be chosen no matter where, ei<strong>the</strong>r here or in America.Key words: Cosmopolitism, patriotism, America, multicultural, globalization,international order <strong>of</strong> statesA way <strong>of</strong> thinking, arising from <strong>the</strong> contemporary political experience inAmerica, a unique reflection <strong>of</strong> <strong>the</strong> political practice at <strong>the</strong> end <strong>of</strong> <strong>the</strong> twentiethcentury follows up <strong>the</strong> tradition <strong>of</strong> <strong>the</strong> recent centuries, a way <strong>of</strong> thinking thatencapsulates cosmopolitism versus patriotism. The vivid interest shown by <strong>the</strong>1This discourse has been published in <strong>the</strong> Proceedings For The Love <strong>of</strong> 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 <strong>American</strong> identity. This was not an isolated attempt concerning streng<strong>the</strong>ning <strong>of</strong>patriotism, but, previously, Sheldon Hackney had provoked a national wide discourse about<strong>the</strong> <strong>American</strong> identity.
160Danijela Grujićspeakers taking part in <strong>the</strong> discussion 2 toward <strong>the</strong> relation <strong>of</strong> cosmopolitismand patriotism, opened up <strong>the</strong> possibility <strong>of</strong> taking under consideration <strong>the</strong> roleand importance <strong>of</strong> cosmopolitism and patriotism <strong>of</strong> <strong>the</strong> contemporary world ina complex way, as well as a variety <strong>of</strong> answers directed at <strong>the</strong> cosmopolitaninitiative given by Martha C. Nussbaum. In her introductory essay, this authoressreferred, above all, to <strong>the</strong> cultural cosmopolitism typical to <strong>the</strong> antique epoch,stressing ”<strong>the</strong> ancient ideal <strong>of</strong> a cosmopolitan, a man devoted to <strong>the</strong> everembracing global community <strong>of</strong> human beings” 3 , versus patriotic pride, whichis dangerous both in moral and politic way. The enthusiasm for <strong>the</strong> cosmopolitanconcept <strong>of</strong> education aims at ”putting global and not democratic or nationalcitizenship in <strong>the</strong> focus <strong>of</strong> civil education”, on <strong>the</strong> o<strong>the</strong>r hand, it refers to moderncosmopolitism as such, its political dimensions as well as <strong>the</strong> basic dichotomy<strong>of</strong> <strong>the</strong> new age about <strong>the</strong> meaning what civilian means, in this context: civilianin <strong>the</strong> USA, equals civilian <strong>of</strong> <strong>the</strong> world.Just to remind, let us stress that <strong>the</strong> tradition what cosmopolitism reallyis, what is <strong>of</strong>ten 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 <strong>the</strong> thought <strong>of</strong> cosmopolitismitself has transformed over its long history, having been undergoing a whole range<strong>of</strong> special shaping. An essential difference, however, should be made betweencosmopolitism in an antique sense and modern sense; <strong>the</strong> difference lies inepochal differences between <strong>the</strong> old and new world.<strong>American</strong> cosmopolitism bears basically a cultural character; it is just anabstract idea originating from a ra<strong>the</strong>r weak human subjectivism, although – ina historical sense – it did participate in <strong>the</strong> implementation <strong>of</strong> <strong>the</strong> antique Cosmopolis idea. Bearing that in mind, Nathan Glazer says: ”I assume that one reasonwhy cosmopolitism could make any sense for <strong>the</strong> philosophers studied byMartha Nussbaum is that <strong>the</strong>y <strong>the</strong>mselves were civilians <strong>of</strong> <strong>the</strong> ’Cosmo polis’ –an almost universal state and civilization – <strong>the</strong> one sided rights and obligations <strong>of</strong>which were reflected in <strong>the</strong> uniformity <strong>of</strong> urban architecture.” 4 Never<strong>the</strong>less, it2In <strong>the</strong> above mentioned Proceedings: Martha C. Nussbaum, Joshua Cohen (ed.) for <strong>the</strong>Love <strong>of</strong> One’s Country (A Discourse on Limits Concerning Patriotism), Biblioteka ”XX vek”,Beograd 1999, <strong>the</strong>re are Martha Nussbaum’s editorial, papers <strong>of</strong> sixteen speakers and MarthaNussbaum’s final paper.3Op. cit., p. 104Op. cit., p. 77
For <strong>the</strong> Love <strong>of</strong> One’s Country and <strong>the</strong> World 161was a negative experience in civilization sense concerning <strong>the</strong> formation <strong>of</strong> aCosmo polis, a totally opposite model <strong>of</strong> <strong>the</strong> contemporary belief about whatcosmopolitism is. It was not a cosmopolitan empire at all; <strong>the</strong>refore, we shouldnot be surprised by Amy Guttmann’s opinion, which is: ”According to what wehave known so far, <strong>the</strong> only world political order possible is tyranny.” 5 SisselaBok also realizes <strong>the</strong> same, when she reminds us that ”<strong>the</strong> Stoic Marco Aurelio’sinspiring reflection about cosmopolitism, equality and love toward your fellowmen did not stop <strong>the</strong> Roman Emperor Marco Aurelio to oversee <strong>the</strong> increasedpersecution <strong>of</strong> Christians, who fought for <strong>the</strong> very same ideals.” 6When speaking <strong>of</strong> <strong>the</strong> modern epoch, situation is quite <strong>the</strong> opposite.Cosmopolitism as a child <strong>of</strong> <strong>the</strong> enlightenment has become a relevant politicalidea, which, however, did not succeed to be brought about in <strong>the</strong> contemporaryinternational world order <strong>of</strong> <strong>the</strong> national states. The strong modern anti<strong>the</strong>sisto cosmopolitism and patriotism within <strong>the</strong> issue <strong>of</strong> political ideas has beenproven immature when speaking <strong>of</strong> historical reality.Therefore, Amy Guttmann’s words should be taken seriously: ”Indeed,we can be citizens <strong>of</strong> <strong>the</strong> world only if a worldwide political structure exists” 7 ,<strong>of</strong> course, such a structure which would be <strong>the</strong> expression <strong>of</strong> a Cosmo politicpursuit in a modern sense.The <strong>American</strong> InternationalismThe specific nature <strong>of</strong> <strong>the</strong> <strong>American</strong> national identity, as an extraordinaryblend <strong>of</strong> cosmopolitism and a parish centered structure, studied closely byBenjamin R. Barber, discloses <strong>the</strong> almost forgotten bitter life story <strong>of</strong> Europefrom <strong>the</strong> last century, being shattered by <strong>the</strong> brutality <strong>of</strong> intolerant social relations.The birth <strong>of</strong> <strong>American</strong> citizens in <strong>the</strong> light <strong>of</strong> historically extremely tenseanti<strong>the</strong>sis <strong>of</strong> cosmopolitism and patriotism gets a special cosmopolitan sense.”Settlers and (later on) residents saw <strong>the</strong>mselves as subjects <strong>of</strong> a new process <strong>of</strong>losing roots and taking roots again.” In his famous An <strong>American</strong> Farmer’s Letters,St. John Cravacker introduces <strong>the</strong> new <strong>American</strong> shape <strong>of</strong> patriotism as acounterpart to <strong>the</strong> religious parish centered structure and to <strong>the</strong> persecutions5Op. cit., p. 836Op. cit., p. 497Op. cit., p. 83
162Danijela Grujićwhich caused people immigrates to America. <strong>American</strong> patriotism was <strong>the</strong>counterpart to all those evil, which Martha Nussbaum links to <strong>American</strong>patriotism. Cravacker celebrates <strong>the</strong> formation <strong>of</strong> <strong>the</strong> ”new man” in <strong>the</strong> ”great<strong>American</strong> asylum (where)... everything tends toward <strong>the</strong> renewal (<strong>of</strong> man)...new laws, new life style, new social structure: here <strong>the</strong>y have become people; inEurope <strong>the</strong>y were just infertile plants... (here) <strong>the</strong>y have struck <strong>the</strong>ir roots andbloomed.” How it happened? ”What power caused that unusual change happen?The power <strong>of</strong> law did.” <strong>American</strong> civil identity was invented as a barrier, toprevent religious wars; on <strong>the</strong> o<strong>the</strong>r hand, Martha Nussbaum fears, that religiouswar was exactly what <strong>American</strong> civil identity could have caused.” 8 The issueis about <strong>the</strong> <strong>American</strong> intention to overcome <strong>the</strong> dualism <strong>of</strong> patriotism andCosmo politics, which is a special experiment ”to implant patriotic feeling ontoa constitutional trunk” 9 , an exception <strong>of</strong> a new collection <strong>of</strong> patriotic ideas, thathad to free <strong>the</strong> inhabitants in America from <strong>the</strong> burden <strong>of</strong> European culturaland political links. The <strong>American</strong> internationalism is defined by Lincoln’swords, ”America is perhaps our best hope ’for <strong>the</strong> people worldwide’; thoseideas attracted to <strong>the</strong> <strong>American</strong> shores people who had been made unhappy byall kinds <strong>of</strong> poisonous patriotism.” 10The <strong>American</strong> tendency to overcome <strong>the</strong> modern anti<strong>the</strong>sis <strong>of</strong> cosmopolitismand patriotism was implemented in a special state, which fact caused a range <strong>of</strong>collateral 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 <strong>of</strong> imperialism” 11 – explains Benjamin R. Barber.Michael Walzer speaks about <strong>the</strong> consequences <strong>of</strong> making a state cosmopolitan,saying that crimes ”in <strong>the</strong> 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 meaning<strong>of</strong> <strong>the</strong> 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 <strong>the</strong> Love <strong>of</strong> One’s Country and <strong>the</strong> World 163specially wrong when addressed to a country that will most likely accept it: <strong>the</strong>United States <strong>of</strong> America. No matter what <strong>the</strong> truth about cultures <strong>of</strong> o<strong>the</strong>rcountries might be, <strong>the</strong> <strong>American</strong> culture has been emphasizing universalprinciples <strong>of</strong> natural justice ra<strong>the</strong>r than pride and dignity <strong>of</strong> a particular race andnation.” 13 It is <strong>the</strong> site <strong>of</strong> a contemporary, ripe experience <strong>of</strong> multiculturalism,as a wide ground for modern cosmopolitism. It is all about a special pride comingfrom belonging to <strong>the</strong> <strong>American</strong> nation, a pride based on ”a general acceptance<strong>of</strong> various segments from cultures <strong>of</strong> different nations, i.e. our ancestors’, comingfrom each and every corner <strong>of</strong> <strong>the</strong> globe. We would certainly make a big mistakeif we denied it, wouldn’t we?” 14Indeed, it is <strong>the</strong> cosmopolitan base that should be streng<strong>the</strong>ned <strong>the</strong>se days,as Sissela Bok also states it: ”If we do not learn how to understand <strong>the</strong> uniquenature <strong>of</strong> cultures, starting from our own, we will probably not know how toappreciate human diversity nei<strong>the</strong>r, along with a common humanity that is <strong>the</strong>essence <strong>of</strong> <strong>the</strong> cosmopolitan ideal.” 15Being a Cosmopolitan in a Historical WorldBy focusing on what is <strong>the</strong> universal in culture, Judith Butler is showinginterest in <strong>the</strong> particular experience <strong>of</strong> <strong>the</strong> universal, its cultural diversity andcultural interpretation as a unique cultural articulation <strong>of</strong> <strong>the</strong> universal. Universalis in <strong>the</strong> very core <strong>of</strong> cosmopolitism, it is not its constant unit, though.Its sense has been being historically formed, open for <strong>the</strong> future, and cancome only as a result <strong>of</strong> multicultural interaction. ”Interpretation on that scene<strong>of</strong> clashes is such that <strong>the</strong> intended meaning is not more decisive for <strong>the</strong> ”final”reading than <strong>the</strong> received meaning, so <strong>the</strong>re can not come any final judgment asregarding <strong>the</strong> opposed positions. Without this final judgment, <strong>the</strong> dilemmaconcerning interpretation still stays, representing a dynamic feature <strong>of</strong> <strong>the</strong>upcoming democratic praxis.” 16 That is how, in <strong>the</strong> cultural sphere, <strong>the</strong> issue <strong>of</strong>historical category in <strong>the</strong> 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 <strong>the</strong> acceptance <strong>of</strong> that form<strong>of</strong> a change has an erotic attraction, which can be a counterpart to patriotism” 17– Robert Pinsky thinks. Criticism <strong>of</strong> dry formulations regarding cosmopolitismcan also be frequently heard, along with <strong>the</strong> 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 <strong>the</strong> historical character <strong>of</strong> <strong>the</strong> practicalworld and its categories one should go behind <strong>the</strong> anti<strong>the</strong>sis <strong>of</strong> cosmopolitismand patriotism. Different traditions take part in <strong>the</strong> discussion and debate, and<strong>the</strong> very understanding <strong>of</strong> <strong>the</strong> universal itself is being reconsidered. ”Shortly, wedo not have to choose between patriotism and <strong>the</strong> universal mind; <strong>the</strong> criticalintelligence and <strong>the</strong> devotion to <strong>the</strong> best values in our own tradition, includingour national and ethnic traditions, are mutually dependant.” 19A full appreciation <strong>of</strong> intercultural differences and <strong>the</strong>ir harmony mean<strong>the</strong> very life core <strong>of</strong> contemporary cosmopolitism. ”The very celebration <strong>of</strong>cultural differences is what distinguishes a cosmopolitan from some o<strong>the</strong>rsuccessors <strong>of</strong> enlightened humanism.” 20 – thinks Kwame Anthony Appiah.That is <strong>the</strong> opinion which comprises cosmopolitism and patriotism in <strong>the</strong>common task <strong>of</strong> 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 <strong>of</strong> CosmopolitismThe reconsideration <strong>of</strong> Richard Falk’s cosmopolitism means a seriousjudgment about <strong>the</strong> nature <strong>of</strong> <strong>the</strong> contemporary relation between cosmopolitismand patriotism, a widely accepted definition <strong>of</strong> cosmopolitism, which focuses on17Op. cit., p. 10918Op. cit., p. 11519Op. cit., p. 11920Op. cit., p. 38
For <strong>the</strong> Love <strong>of</strong> One’s Country and <strong>the</strong> World 165<strong>the</strong> specific features <strong>of</strong> contemporary international order <strong>of</strong> affairs. ”Although Ibasically share Martha Nussbaum’s vision, I am concerned about <strong>the</strong> fact thatshe implicitly supports <strong>the</strong> polarized – ei<strong>the</strong>r/or – opinion on <strong>the</strong> tension between<strong>the</strong> national and cosmopolitan awareness. The discussion launched this waynecessarily overlooks <strong>the</strong> uniqueness’ <strong>of</strong> our political circumstances at <strong>the</strong> end<strong>of</strong> <strong>the</strong> twentieth century, and exactly that uniqueness makes both extremismsproblematic.” 21 The loss <strong>of</strong> high degree autonomy and <strong>the</strong> primacy <strong>of</strong> asupreme state, with strong processes <strong>of</strong> regionalization, globalization andtrespasses <strong>of</strong> human states caused by demands <strong>of</strong> <strong>the</strong> global market make <strong>the</strong>key structural nature <strong>of</strong> international history <strong>the</strong>se days. Naturally, it makes <strong>the</strong>blade <strong>of</strong> patriotism become blunt, but also enables common performance forpatriotism and cosmopolitism in <strong>the</strong> world, where <strong>the</strong> political unit <strong>of</strong> measure isnot national state any more. Recovering <strong>of</strong> human state and human region withsocially engaged institutions demands a common initiative both for patriotismand cosmopolitism.Thus, very important part <strong>of</strong> <strong>the</strong> discussion is warning to <strong>the</strong> dangers bornby globalization, as well as <strong>the</strong> talkers’ stressed opinion that cosmopolitismshould be distanced from this contemporary process ruled only by <strong>the</strong> market.”To fulfill <strong>the</strong> confidence, cosmopolitism should join <strong>the</strong> criticism aimed at <strong>the</strong>ethically imperfect globalization, embodied in <strong>the</strong> neo-liberal models <strong>of</strong> thinking,and in such view <strong>of</strong> <strong>the</strong> world as a whole, which minimalizes <strong>the</strong> ethical andvisionary content <strong>of</strong> <strong>the</strong> cosmopolitan idea.” 22 – says Richard Folk, by addingthat ”such a view on <strong>the</strong> whole completely oversees ethic imperatives <strong>of</strong> humansolidarity.” 23 The matter with globalization coming from beneath ethically isnei<strong>the</strong>r neutral nor capital motivated. Moreover, it can be understood as anexpression <strong>of</strong> neo-cosmopolitism, in its base <strong>the</strong>re are trans-national and localparticipants and processes, along with voluntarily joined citizens, <strong>of</strong>ten engagedaround <strong>the</strong> global problems concerning environmental pollution.Ano<strong>the</strong>r kind <strong>of</strong> answer to <strong>the</strong> accelerated globalization is <strong>the</strong> development<strong>of</strong> cosmopolitan culture that is, for <strong>the</strong> time being, mostly aimed at establishingan international discourse comprising topics such as for example: women,development, population and environment. Gradual moving away <strong>of</strong> democraticpractice from its narrow ties to state as such can be <strong>the</strong> path <strong>of</strong> reconciliation21Op. cit., p. 6522Op. cit., p. 6923Op. cit., p. 70
166Danijela Grujićbetween patriotism and cosmopolitism. Amy Guttmann says it similarly: ”we canreject <strong>the</strong> idea that our primary commitment belongs to any specific communityand that we can understand <strong>the</strong> moral importance <strong>of</strong> living as free and equalcitizens in any really democratic political system.” 2424Op. cit., p. 83
IVArgumentation and Interpretation <strong>of</strong> Law1 Pr<strong>of</strong>. Marijan Pavčnik, PhDFaculty <strong>of</strong> Law, Ljubljana, SloveniaConstitutional Interpretation2 Slobodan Beljanski, PhDAttorney <strong>of</strong> Law, Novi Sad, SerbiaPound’s Concept <strong>of</strong> Law Standards3 Petar Te<strong>of</strong>ilović, SJDProvincial Ombudsman <strong>of</strong> AP Vojvodina, SerbiaThe Contribution <strong>of</strong> <strong>the</strong> US <strong>Jurisprudence</strong> to Freedom <strong>of</strong> Expressionin <strong>the</strong> USA Through <strong>the</strong> Development <strong>of</strong> Defamation Law4 Dragutin Avramović, AssistantPolice Academy, Belgrade, SerbiaAlan Watson: Legal Transplantats – An Approach toComparative Law
Constitutional Interpretation 1691 Pr<strong>of</strong>. Marijan Pavčnik, PhDFaculty <strong>of</strong> Law, Ljubljana, SloveniaCONSTITUTIONAL INTERPRETATIONAbstract: The author begins <strong>the</strong> article with <strong>the</strong> nature <strong>of</strong> <strong>the</strong> constitutionand some problems <strong>of</strong> its interpretation. Fur<strong>the</strong>r on, he analizes <strong>the</strong> classicinterpretative arguments: linguistic, logical, systematic, historical and teleologicalinterpretations. In <strong>the</strong> end, he emphasizes <strong>the</strong> importance <strong>of</strong> legal principlesand <strong>the</strong> mode <strong>of</strong> application.Key words: Constitution, interpretation, interpretative arguments, legalprinciples, mode <strong>of</strong> applicationI IntroductionConstitutional interpretation is one kind <strong>of</strong> interpretation <strong>of</strong> legal texts(→statutory interpretation). It is only an interpretation when <strong>the</strong> legal meaningis at <strong>the</strong> same time <strong>the</strong> meaning <strong>of</strong> <strong>the</strong> words or one <strong>of</strong> <strong>the</strong> meanings <strong>of</strong> <strong>the</strong>words <strong>of</strong> <strong>the</strong> legal text. It is in <strong>the</strong> nature <strong>of</strong> 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 <strong>of</strong> legalunderstanding is most intensive in connection with <strong>the</strong> constitution, which is,at least from <strong>the</strong> standpoint <strong>of</strong> national law, <strong>the</strong> legal act standing at <strong>the</strong> top <strong>of</strong><strong>the</strong> hierarchy. In <strong>the</strong> end, <strong>the</strong> person interpreting it is alone. Above him, <strong>the</strong>re isno higher legal act that could very intensively direct <strong>the</strong> interpretation <strong>of</strong> alower one. To paraphrase Kant, above him <strong>the</strong>re are only <strong>the</strong> starry sky and <strong>the</strong>moral 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 whe<strong>the</strong>r, in view <strong>of</strong> what has been said, <strong>the</strong>interpretation <strong>of</strong> <strong>the</strong> constitution is a supra-constitutional or a sub-constitutionalact. The dilemma was intensified by <strong>the</strong> former U. S. Supreme Court JusticeCharles Evan Hughes, who stated that <strong>the</strong> judges are ”under a constitution, but <strong>the</strong>constitution is what <strong>the</strong> judges say it is.” If one tries to be precise, one can see that<strong>the</strong> interpreter is above <strong>the</strong> text; <strong>the</strong> 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 <strong>of</strong>individual interpretative arguments what <strong>the</strong> text contains, or does he want to doeverything to willingly bring his own views, aims, and desires into <strong>the</strong> text?The suitable view for <strong>the</strong> interpretation <strong>of</strong> <strong>the</strong> constitution is <strong>the</strong> approachmentioned first, which attempts to discover what <strong>the</strong> constitution contains.Finding out what <strong>the</strong> constitution contains, which possibilities it <strong>of</strong>fers, andwhat <strong>the</strong> meaning <strong>of</strong> <strong>the</strong>se possibilities is, is not just an act <strong>of</strong> rendition/reconstruction, but also a creative act. On <strong>the</strong> level <strong>of</strong> principle it can be saidthat ”<strong>the</strong> real meaning <strong>of</strong> a text, as it speaks to <strong>the</strong> interpreter (...) is alwaysco-determined also by <strong>the</strong> historical situation <strong>of</strong> <strong>the</strong> interpreter and hence by <strong>the</strong>totality <strong>of</strong> <strong>the</strong> objective course <strong>of</strong> 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 <strong>the</strong> legal understanding <strong>of</strong><strong>the</strong> constitution, <strong>the</strong>re are numerous important circumstances co-determiningsuch understanding. The task <strong>of</strong> individual interpretative arguments is to open<strong>the</strong> context <strong>of</strong> understanding and to rationalize, check, and direct understanding.The interpretation stops at <strong>the</strong> point where it goes beyond <strong>the</strong> possible meanings<strong>of</strong> <strong>the</strong> words <strong>of</strong> <strong>the</strong> constitution 3 .Constitutional interpretation is treated as one method <strong>of</strong> arriving at apossible understanding <strong>of</strong> <strong>the</strong> constitution by constitutional courts too. Thisanalysis can be appropriately applied to interpretation carried out by regularcourts or o<strong>the</strong>r 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 <strong>the</strong> competencies <strong>the</strong>y have. The position a court has in<strong>the</strong> hierarchy <strong>of</strong> courts is <strong>of</strong> great importance as well. In principle, <strong>the</strong> higherthis position is, <strong>the</strong> greater is <strong>the</strong> influence upon <strong>the</strong> creation <strong>of</strong> court practice.II Some Interpretative DilemmasIn principle, <strong>the</strong> same problems and reservations that apply to <strong>the</strong>understanding <strong>of</strong> legal texts in general also apply to <strong>the</strong> understanding <strong>of</strong> <strong>the</strong>constitution, though this does not mean that no differences <strong>of</strong> meaning existbetween <strong>the</strong> two kinds <strong>of</strong> understanding. In a very schematic way, three commondilemmas in particular can be mentioned: <strong>the</strong> openness <strong>of</strong> interpretativearguments with regard to <strong>the</strong>ir meaning, <strong>the</strong> open circle <strong>of</strong> interpretativearguments, and <strong>the</strong> loose relations between <strong>the</strong> interpretative arguments.If legal texts were defined in terms <strong>of</strong> <strong>the</strong>ir meaning from <strong>the</strong> very beginningand if <strong>the</strong>y maintained this definiteness also in contact with concrete cases, <strong>the</strong>ywould not need to be interpreted (In claris not fit interpretatio!), but one couldapply <strong>the</strong>m 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 <strong>the</strong>nature <strong>of</strong> a form, it would still be just one <strong>of</strong> 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 at<strong>the</strong>ir best,” Aarnio says, ”<strong>the</strong>y 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 <strong>of</strong> interpretativearguments. The argumentative circle is open, to already known arguments newones can be added if <strong>the</strong>y can contribute to discovering and checking <strong>the</strong> meaning<strong>of</strong> <strong>the</strong> legal text. New arguments are constantly produced by approaches foundedespecially on basic (human) rights and duties, and on legal principles (e.g. on<strong>the</strong> principle <strong>of</strong> <strong>the</strong> state governed by <strong>the</strong> rule <strong>of</strong> law and on <strong>the</strong> principle <strong>of</strong> <strong>the</strong>constitutional separation <strong>of</strong> powers), etc. If, in spite <strong>of</strong> 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 <strong>of</strong> law. The common point <strong>of</strong> <strong>the</strong> established arguments is vonSavigny’s design <strong>of</strong> interpretation (see section IV).Nor is <strong>the</strong>re any easy solution to <strong>the</strong> third dilemma, drawing attention to<strong>the</strong> relation between <strong>the</strong> 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: <strong>the</strong>re is no fixed sequence, <strong>the</strong>re exists exactly<strong>the</strong> same number <strong>of</strong> answers as <strong>the</strong>re are authors who have dealt with methods<strong>of</strong> interpretation. Never<strong>the</strong>less, <strong>the</strong> answer to such interpretative conflict is notarbitrary because suitable orientations can be achieved in spite <strong>of</strong> differences.The basic orientation is that only such interpretation is allowed that remainswithin <strong>the</strong> possible meaning (as porous as it might be) <strong>of</strong> <strong>the</strong> legal text. The secondorientation is that all main viewpoints <strong>of</strong> interpretation (logical, systematic,historical, and teleological points <strong>of</strong> view) are to be checked and <strong>the</strong> solutions<strong>the</strong>y bring are to be established. From among <strong>the</strong>se meanings interpreters choose<strong>the</strong> most convincing one, which is <strong>the</strong> one with <strong>the</strong> most arguments (with regardto quality as well as to quantity) speaking in favour <strong>of</strong> it and which is at <strong>the</strong>same time <strong>the</strong> meaning corresponding to <strong>the</strong> purpose (telos) <strong>of</strong> <strong>the</strong> legal rule. If<strong>the</strong> interpreter vacillates between several solutions he decides on <strong>the</strong> one that isin accordance with <strong>the</strong> purpose <strong>of</strong> <strong>the</strong> legal rule (see section IV.6.). In this sense<strong>the</strong> teleological interpretation toge<strong>the</strong>r with <strong>the</strong> linguistic one is <strong>the</strong> basic principle<strong>of</strong> interpretation. At <strong>the</strong> same time, this is <strong>the</strong> common denominator reachedby <strong>the</strong>ories studying <strong>the</strong> conflict between <strong>the</strong> interpretative arguments.III The Nature <strong>of</strong> <strong>the</strong> ConstitutionHow <strong>the</strong> constitution is designed and understood as a legal act influences <strong>the</strong>interpretation <strong>of</strong> <strong>the</strong> constitution. It is in <strong>the</strong> nature <strong>of</strong> <strong>the</strong> constitution that it is <strong>the</strong>starting-point legal act and <strong>the</strong> basic legal act: it is <strong>the</strong> starting-point act because ithas <strong>the</strong> highest legal validity within <strong>the</strong> state, and it is <strong>the</strong> basic legal act because itregulates ”just” <strong>the</strong> most important social relations. Being <strong>the</strong> starting-point actalso means that <strong>the</strong> constitution is (at least from a certain point <strong>of</strong> view) primarily aprocedural act, which enables all political subjects to play <strong>the</strong> legal game. Theconstitution foresees <strong>the</strong> kinds and responsibilities <strong>of</strong> legal subjects, <strong>the</strong> relationsbetween <strong>the</strong>m and <strong>the</strong> basic procedural rules forming <strong>the</strong> framework within whichlegal and political decisions can be taken. The procedural side <strong>of</strong> <strong>the</strong> constitution is
Constitutional Interpretation 173especially important for <strong>the</strong> modern state. Nowadays <strong>the</strong> state is a kind <strong>of</strong> a suprasystem,within which different systems and subsystems must act toge<strong>the</strong>r.The constitution is also <strong>the</strong> basic legal act that regulates social relationswith regard to <strong>the</strong>ir contents. The constitutions <strong>of</strong> modern democratic statesgoverned by <strong>the</strong> rule <strong>of</strong> law are especially focused on three groups <strong>of</strong> questions:basic (human) rights (i.e. fundamental rights and freedoms), <strong>the</strong> form <strong>of</strong> <strong>the</strong>state, and <strong>the</strong> organisation <strong>of</strong> <strong>the</strong> state. This embodies <strong>the</strong> so-called classicmateria constitutionis. If one compares <strong>the</strong>se three subject matters, it can benoticed that <strong>the</strong>y differ linguistically as well as technically. The organisation <strong>of</strong><strong>the</strong> state is <strong>the</strong> best-focused one with regard to its content and can be directlyconcretized as a whole to an important extent, whereas <strong>the</strong> form <strong>of</strong> <strong>the</strong> state is insome important parts expressed ”just” through principles such as <strong>the</strong> principles<strong>of</strong> democracy, <strong>of</strong> <strong>the</strong> state governed by <strong>the</strong> rule <strong>of</strong> law, <strong>of</strong> <strong>the</strong> social state, <strong>of</strong> <strong>the</strong>separation <strong>of</strong> powers, etc. These principles are ei<strong>the</strong>r normatively put in aconcrete form in o<strong>the</strong>r parts <strong>of</strong> <strong>the</strong> constitution (e.g. <strong>the</strong> principle <strong>of</strong> <strong>the</strong> separation<strong>of</strong> powers is elaborated in <strong>the</strong> chapter on <strong>the</strong> organisation <strong>of</strong> <strong>the</strong> state) orrepresent guidelines for <strong>the</strong> legislature and for concrete behaviour. A specialform with regard to <strong>the</strong> content is given to human rights and fundamentalfreedoms. The starting point is that <strong>the</strong>y are defined in <strong>the</strong> constitution in such away that <strong>the</strong>y can be exercised directly. It can only deviate from this rule whenthis is necessary due to <strong>the</strong> particular nature <strong>of</strong> an individual right or freedomor when it is provided for some rights that a statute regulates <strong>the</strong> manner <strong>of</strong>exercising <strong>the</strong>m. This technical legal possibility is in practice widely applied.The descriptions <strong>of</strong> <strong>the</strong> basic rights also comprise numerous value criteria suchas ”human dignity”, ”personal dignity”, ”inhuman or degrading treatment orpunishment”, ”<strong>the</strong> inviolability <strong>of</strong> <strong>the</strong> physical and mental integrity <strong>of</strong> everyperson”, ”<strong>the</strong> economic, social, and environmental function <strong>of</strong> property”, etc.(cf. Treaty establishing a Constitution for Europe, Art. II-61 ff.). The basicrights with <strong>the</strong>se and similar value criteria have <strong>the</strong> nature <strong>of</strong> ”legal principles”,which are described in more or less detail, and have to be fur<strong>the</strong>r elaboratedand concretized with regard to <strong>the</strong>ir meaning.These and o<strong>the</strong>r cognitive laws are not obstacles to be overcome anddirectly filled by <strong>the</strong> understanding (interpretation) <strong>of</strong> <strong>the</strong> constitution. Theyare only <strong>the</strong> laws <strong>the</strong> interpreter has to consider, while at <strong>the</strong> same time he hasto be aware <strong>of</strong> who should normatively concretize <strong>the</strong> 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 <strong>the</strong> constitution anoperational form by means <strong>of</strong> statutes and o<strong>the</strong>r general legal acts, and ordinarymortals, who are limited by <strong>the</strong> equal rights <strong>of</strong> o<strong>the</strong>rs, to <strong>the</strong> state body (e. g. to<strong>the</strong> constitutional court), which ensures that <strong>the</strong> game takes place within <strong>the</strong>limits <strong>of</strong> <strong>the</strong> law as regards <strong>the</strong> content and <strong>the</strong> procedure. And this is also <strong>the</strong>key to understanding <strong>the</strong> constitution. In a way, this key is very simple: we arewithin <strong>the</strong> constitution as long as we take into account <strong>the</strong> norms regardingjurisdiction, procedure, and orientation as concerns content (toge<strong>the</strong>r with itsbinding limitations). As long as <strong>the</strong>se are our starting points, we are within <strong>the</strong>framework <strong>of</strong> <strong>the</strong> law (<strong>the</strong> constitution) and at <strong>the</strong> same time this setting enablesus to make <strong>the</strong> content dynamic and to normatively develop it fur<strong>the</strong>r and inmore detail. As long as we act in such a manner, we act legally and at <strong>the</strong> sametime support any new content we consider legitimate. And it is also a game thatcan and must be controlled by <strong>the</strong> competent state body (e. g. by <strong>the</strong> constitutionalcourt or by <strong>the</strong> supreme court). This competent state body does not have anysupra-constitutional criterion that would indicate whe<strong>the</strong>r <strong>the</strong> development <strong>of</strong><strong>the</strong> contents <strong>of</strong> <strong>the</strong> valid constitution is constitutional. The competent state bodycan ”only” decide whe<strong>the</strong>r <strong>the</strong> development <strong>of</strong> <strong>the</strong> content is still within <strong>the</strong>limits <strong>of</strong> constitutional possibilities and whe<strong>the</strong>r such has occurred according toa procedure that is still within <strong>the</strong> limits <strong>of</strong> <strong>the</strong> constitutional procedural game.It is <strong>of</strong> special importance for <strong>the</strong> competent state body (e. g. for <strong>the</strong> constitutionalcourt) to continuously examine whe<strong>the</strong>r legal participants respect <strong>the</strong>constitutionally consolidated institutions <strong>of</strong> a state governed by <strong>the</strong> rule <strong>of</strong> law(such as <strong>the</strong> so-called constitutional democracy).What does it mean to be ”still within <strong>the</strong> borders <strong>of</strong> constitutionalpossibilities” or to be ”still within constitutional procedural play”? Such is not afirm but <strong>of</strong>ten a vague criterion. It is unproductive not to admit it and to hidebehind <strong>the</strong> constitutional text, as if it were certain enough. It would be muchwiser to ascertain <strong>the</strong> relative uncertainty <strong>of</strong> <strong>the</strong> constitutional text, to analyse itas such and <strong>the</strong>n to search for those implementations that are not beyond <strong>the</strong>constitution and which try to embody <strong>the</strong> meaning that <strong>the</strong> 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 <strong>the</strong> highest judicial body (e.g. for <strong>the</strong> 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 <strong>the</strong> valid constitution (cf. → activism, judicial).
Constitutional Interpretation 175IV Classic Interpretative Arguments1 IntroductionEach field <strong>of</strong> law has a number <strong>of</strong> peculiarities which have to be considered,and which also influence <strong>the</strong> interpretative approach. The general methodologies<strong>of</strong> evaluation as well as individual legal sciences have to take into account <strong>the</strong>sepeculiarities. The first step to take is to start with <strong>the</strong> classic interpretativearguments <strong>of</strong> von Savigny and to try to determine whe<strong>the</strong>r <strong>the</strong>y have any specialtraits when <strong>the</strong>y come into contact with <strong>the</strong> text <strong>of</strong> <strong>the</strong> constitution. Theinterpretative arguments <strong>the</strong>mselves fur<strong>the</strong>r such approach because <strong>the</strong>y arealways in a suitable ”dialogue” with <strong>the</strong> object <strong>of</strong> <strong>the</strong>ir 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 <strong>the</strong>se arguments have or can have in constitutional interpretation.Similar arguments are used in <strong>the</strong> interpretation <strong>of</strong> <strong>the</strong> Constitution <strong>of</strong> <strong>the</strong>United States. Philip Bobbitt 5 analyzes six forms or modalities <strong>of</strong> constitutionalinterpretation. These forms are <strong>the</strong> following: historical argument, textualargument, structural argument (this argument is similar to systematicinterpretation), precedent, ethical argument (which derives ”rules from thosemoral commitments <strong>of</strong> <strong>the</strong> <strong>American</strong> ethos that are reflected in <strong>the</strong> Constitution”),and prudential arguments (which seek ”to balance <strong>the</strong> costs and benefits <strong>of</strong> aparticular rule”) 6 .2 Linguistic InterpretationThe basic characteristic <strong>of</strong> linguistic interpretation is that <strong>the</strong> language <strong>of</strong><strong>the</strong> constitution is <strong>the</strong> starting-point legal act and <strong>the</strong> basic legal act (see sectionIII). In <strong>the</strong> constitution <strong>the</strong> organisation <strong>of</strong> <strong>the</strong> state is defined in a relativelyprecise manner, whereas legal principles and general provisions on <strong>the</strong> form <strong>of</strong>5Bobbitt, Philip: Constitutional Interpretation, in: Kermit L. Hall (glavni ur.): The OxfordCompanion to <strong>the</strong> Supreme Court <strong>of</strong> <strong>the</strong> United States, New York Oxford 1992, pp. 184-1886Cf.: Summers Robert S.: Statutory Interpretation in <strong>the</strong> United States, in: MacCormick NeilD., Summers Robert S. (eds.) 1991. pp. 412-419
176Marijan Pavčnik<strong>the</strong> state, on <strong>the</strong> characteristics <strong>of</strong> legal order and numerous elements <strong>of</strong> basic(human) rights are relatively uncertain. The relatively uncertain terms aresurrounded, as Hart says, by a penumbra <strong>of</strong> doubt, which leaves open <strong>the</strong> questionwhe<strong>the</strong>r concrete cases still belong under general rules 7 . The circumstance that<strong>the</strong> constitution is <strong>the</strong> hierarchically highest state act aggravates this problem. If<strong>the</strong> constitutional court or some o<strong>the</strong>r organ which interprets <strong>the</strong> constitutionwith finality, is not prepared to exercise self-restraint, this endangers <strong>the</strong>principles <strong>of</strong> <strong>the</strong> separation <strong>of</strong> powers. The edge <strong>of</strong> doubt may hide <strong>the</strong> dangerthat <strong>the</strong> representative <strong>of</strong> <strong>the</strong> interpretative power changes <strong>the</strong> basis <strong>of</strong> <strong>the</strong> legalorder; on <strong>the</strong> o<strong>the</strong>r hand, it draws attention to <strong>the</strong> importance <strong>of</strong> <strong>the</strong> moralstarting point <strong>of</strong> law and to <strong>the</strong> sensitive moral role (and also responsibility) <strong>of</strong>those interpreting <strong>the</strong> constitution.3 Logical InterpretationLogical interpretation is not ”interesting” in its aspect <strong>of</strong> demandingtreatment in accordance with <strong>the</strong> rules <strong>of</strong> formal logic with regard to <strong>the</strong> formation<strong>of</strong> thoughts, inference, and pro<strong>of</strong>. In this sense no differences exist between <strong>the</strong>understanding <strong>of</strong> <strong>the</strong> constitution and any o<strong>the</strong>r legal understanding. Logicalinterpretation becomes exciting when it refers to persuasion and substantiationconcerning <strong>the</strong> content, which cannot be checked and chained by strict rules <strong>of</strong>formal logic. Examples <strong>of</strong> persuasive argumentation are argumentum a contrario,argumentum a simili ad simile (within <strong>the</strong> legal text or due to a gap in <strong>the</strong>constitution), argumentum a fortiori, argument <strong>of</strong> <strong>the</strong> nature <strong>of</strong> things, etc.As an example <strong>of</strong> persuasive argument, <strong>the</strong> argumentum a maiori ad minusmay be taken. This argument has been used by some courts when deciding on<strong>the</strong> conformity <strong>of</strong> laws with <strong>the</strong> constitution and on <strong>the</strong> conformity <strong>of</strong> regulationswith <strong>the</strong> constitution and with laws. The courts have taken <strong>the</strong> view that everythingshort <strong>of</strong> an immediate abrogation or a complete annulment <strong>of</strong> a regulation isallowed. In this sense also <strong>the</strong> so-called interpretative decision should be permitted,though mentioned nei<strong>the</strong>r in <strong>the</strong> constitution nor in <strong>the</strong> constitutional court act.Interpretative decisions may be ra<strong>the</strong>r questionable if <strong>the</strong>y are not broughtinto accordance with <strong>the</strong> role <strong>of</strong> <strong>the</strong> constitutional court in a certain state legalsystem (systematic and teleological interpretation!). If <strong>the</strong> constitutional courtis to be subordinate to constitutional institutions (i.e. <strong>the</strong> guidance <strong>of</strong> a state7Hart H.L.A.: The Concept <strong>of</strong> Law, 2 nd edition, Oxford 1994., pp. 123, see also pp. 128-136.
Constitutional Interpretation 177governed by <strong>the</strong> rule <strong>of</strong> law) and restrained in its actions so that it does notintervene in <strong>the</strong> responsibility <strong>of</strong> <strong>the</strong> legislature (<strong>the</strong> principle <strong>of</strong> <strong>the</strong> separation<strong>of</strong> powers!), this means that only some interpretative decisions are allowed.The basic task <strong>of</strong> an interpretative decision is to exclude from <strong>the</strong> legalsystem <strong>the</strong> meaning <strong>of</strong> <strong>the</strong> text <strong>of</strong> a statute (or some o<strong>the</strong>r legal text) that isunconstitutional. The interpretative decision saves <strong>the</strong> statute (this applies mutatismutandis to <strong>the</strong> general legal acts that can be <strong>the</strong> object <strong>of</strong> a constitutional courtreview) and helps <strong>the</strong> legislature to keep its legal message within <strong>the</strong> limits <strong>of</strong>constitutional possibilities. In principle, <strong>the</strong> task <strong>of</strong> <strong>the</strong> constitutional court is toauthoritatively remove any unconstitutional interpretation.It is important, however, that <strong>the</strong> interpretation must never take over <strong>the</strong>role <strong>of</strong> <strong>the</strong> legislature, which can, within <strong>the</strong> limits <strong>of</strong> <strong>the</strong> constitution, decide infavour <strong>of</strong> a broader or a narrower scope <strong>of</strong> <strong>the</strong> meaning <strong>of</strong> <strong>the</strong> legal text. Inprinciple, <strong>the</strong> constitutional court should not establish which meanings <strong>of</strong> <strong>the</strong>legal text are <strong>the</strong> only legally (constitutionally) correct ones, but should just keepwatch on whe<strong>the</strong>r <strong>the</strong> search for <strong>the</strong> dimensions <strong>of</strong> <strong>the</strong> meaning <strong>of</strong> a statute isconstitutional (i.e. within <strong>the</strong> limits <strong>of</strong> <strong>the</strong> constitution). Legal hermeneuticsknows that new cases give rise to new solutions and new developments regarding<strong>the</strong> meaning <strong>of</strong> a statute. The constitutional court should only exceptionally in <strong>the</strong> case <strong>of</strong> very unclear statutes that cannot be abrogated without causingirreparable damage state in a positive manner which interpretation isconstitutional, in all o<strong>the</strong>r 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 <strong>the</strong> role attributed to <strong>the</strong>external and internal legal system 8 , as well as to <strong>the</strong> manner <strong>of</strong> connecting andharmonising <strong>the</strong>se two systems if incompatibilities exist between <strong>the</strong>m. Thelatter case already deals with a special meaning that is typical <strong>of</strong> individual legalfields. The case behind it refers to <strong>the</strong> fact that <strong>the</strong> constitutional interpretationmust also consider <strong>the</strong> ”spirit” and <strong>the</strong> 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 <strong>the</strong> established findings <strong>of</strong> legal science (cf. Art. 1/2 <strong>of</strong> <strong>the</strong> Swiss CivilCode). This tradition and <strong>the</strong>se findings can be so intensive that <strong>the</strong>y have <strong>the</strong>nature <strong>of</strong> a ”commonplace or topos”. If such ”clues” exist, it is only normal that<strong>the</strong> constitutional court takes <strong>the</strong>m into account and raises <strong>the</strong>m to <strong>the</strong> level <strong>of</strong>”constitutional arguments” if it finds that <strong>the</strong>y conform to <strong>the</strong> spirit, <strong>the</strong> principles,and <strong>the</strong> criteria <strong>of</strong> <strong>the</strong> text <strong>of</strong> <strong>the</strong> constitution. To put it even more clearly:”commonplaces” do not have precedence over <strong>the</strong> constitution; since <strong>the</strong>y areso well founded and persuasive, however, it is possible that <strong>the</strong> constitutionalcourt accepts <strong>the</strong>m as ”constitutional criteria”. A number <strong>of</strong> constitutionalcourt decisions referring to individual constitutional rights (cf. →HumanDignity, →Due Process Clause, →Equal Protection Clause, →Prisoners’ Rights)have <strong>the</strong> nature <strong>of</strong> ”constitutional criteria” or ”commonplaces”.At least two more questions are important for <strong>the</strong> interpretation <strong>of</strong> <strong>the</strong>constitution. Both are connected to legal principles and <strong>the</strong>ir importance for<strong>the</strong> understanding <strong>of</strong> <strong>the</strong> constitution. Legal principles do not have more legalvalidity than <strong>the</strong> o<strong>the</strong>r parts <strong>of</strong> <strong>the</strong> constitution, but are an integral part <strong>the</strong>re<strong>of</strong>.General constitutional provisions represent <strong>the</strong> leading principles and <strong>the</strong>starting points only inasmuch as <strong>the</strong>ir content is realized in o<strong>the</strong>r chapters <strong>of</strong><strong>the</strong> constitution, in individual statutes and o<strong>the</strong>r formal legal sources. Thus, <strong>the</strong>constitution is a legal whole, wherein individual provisions must conform toeach o<strong>the</strong>r: everything must exist within <strong>the</strong> limits <strong>of</strong> <strong>the</strong> constitution and in <strong>the</strong>sense <strong>of</strong> <strong>the</strong> general provisions, which toge<strong>the</strong>r with <strong>the</strong> preamble represent itsinterpretative starting point.Legal principles are a very important, but also a very sensitive, elementthat sets <strong>the</strong> tone <strong>of</strong> <strong>the</strong> constitutional and legal system as a whole. Specialattention should be paid to <strong>the</strong> fact that even very abstract principles are a part<strong>of</strong> <strong>the</strong> system as well and that it would <strong>the</strong>refore not be legal if new contentswere brought into <strong>the</strong> system from <strong>the</strong> outside. We have again arrived at <strong>the</strong>hermeneutical circle and at <strong>the</strong> manner <strong>of</strong> entering it. We are within <strong>the</strong>constitutional system as long as we start out from its elements and startingpoints.If this basis <strong>of</strong> interpretation does not exist, we have already gonebeyond <strong>the</strong> system and find ourselves on non-legal (non-constitutional)ground. This kind <strong>of</strong> interpretation is no longer in accordance with <strong>the</strong>principle <strong>of</strong> a →state governed by <strong>the</strong> rule <strong>of</strong> law.
Constitutional Interpretation 1795 Historical InterpretationHistorical interpretation is a classic interpretative argument that comprisesseveral elements: it considers <strong>the</strong> historical conditions in which and because <strong>of</strong>which <strong>the</strong> legal text originated, it discovers <strong>the</strong> genesis and <strong>the</strong> whole development<strong>of</strong> how <strong>the</strong> legal text obtained its final linguistic expression and it compares anyearlier legal text with <strong>the</strong> new text regulating <strong>the</strong> same legal matter. In all <strong>the</strong>secases <strong>the</strong> historical circumstances help to establish <strong>the</strong> meaning <strong>of</strong> <strong>the</strong> legal text.All three groups <strong>of</strong> questions are certainly also important for <strong>the</strong>understanding <strong>of</strong> <strong>the</strong> constitution. Historical circumstances are especiallyimportant for <strong>the</strong> preamble and its interpretative power; <strong>the</strong> preparatory materialsavailable are especially interesting in connection with <strong>the</strong> constitutional provisionswhich were <strong>the</strong> subject <strong>of</strong> different points <strong>of</strong> view at <strong>the</strong> time when <strong>the</strong>constitutional text was in <strong>the</strong> process <strong>of</strong> being adopted or where <strong>the</strong> final text isa compromise between several points <strong>of</strong> view, whereas a comparison <strong>of</strong> <strong>the</strong> earlierconstitution with <strong>the</strong> new text is especially valuable in connection with <strong>the</strong>constitutional provisions that are different in <strong>the</strong> new constitution.The historical interpretation opens ano<strong>the</strong>r central dilemma, which is <strong>of</strong>key importance for <strong>the</strong> understanding <strong>of</strong> <strong>the</strong> constitution. It is <strong>the</strong> dilemma <strong>of</strong>whe<strong>the</strong>r priority should be given to a subjective-static or to an objective-dynamicinterpretation <strong>of</strong> <strong>the</strong> constitutional text. The majority opinion is that <strong>the</strong>constitution is a legal act that should encompass <strong>the</strong> legal life in a statecommunity in <strong>the</strong> long term. It would be unbearable if <strong>the</strong> legal life wereencompassed by <strong>the</strong> ”will” <strong>of</strong> <strong>the</strong> historical lawmaker. This ”will” is certainlyimportant, one element <strong>of</strong> <strong>the</strong> understanding <strong>of</strong> <strong>the</strong> constitution will always be<strong>the</strong> ”will” <strong>of</strong> <strong>the</strong> constitution-maker, which has to be established from case tocase and a position has to be taken <strong>the</strong>reon. The younger <strong>the</strong> constitution, <strong>the</strong>more <strong>the</strong> ”will” <strong>of</strong> <strong>the</strong> historical constitution-maker is present. Yet this ”will” isnot an independent legal source and is not automatically binding, it is just anelement accompanying <strong>the</strong> understanding <strong>the</strong> constitutional text.The constitution is a long-term authoritative legal act, which is open toobjective-dynamic understanding. The question is not whe<strong>the</strong>r this approachcan be avoided; <strong>the</strong> question is which position is taken <strong>the</strong>reon and which senseis given <strong>the</strong>reto. The key ground <strong>of</strong> understanding is nei<strong>the</strong>r <strong>the</strong> fossilized pastmeaning <strong>of</strong> <strong>the</strong> constitution nor its ”prophetic” future meaning, but <strong>the</strong>possible linguistic meaning, which is a part <strong>of</strong> <strong>the</strong> world we live in. We haveagain arrived at legal ethics, which builds upon <strong>the</strong> 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 <strong>of</strong> <strong>the</strong> responsibility to future generations.6 Teleological InterpretationAno<strong>the</strong>r <strong>of</strong> <strong>the</strong> classic interpretative arguments is <strong>the</strong> teleologicalinterpretation, which is closely connected to <strong>the</strong> objective-dynamic understanding<strong>of</strong> legal texts. A teleological interpretation determines <strong>the</strong> meaning <strong>of</strong> linguisticsigns with regard to <strong>the</strong> purpose <strong>of</strong> <strong>the</strong> legal provision. From <strong>the</strong> legal point <strong>of</strong>view <strong>the</strong> path from <strong>the</strong> purpose to <strong>the</strong> final determination <strong>of</strong> <strong>the</strong> meaning <strong>of</strong> alegal rule must be determined to such an extent that <strong>the</strong> meaning <strong>of</strong> <strong>the</strong> legal ruleis based on criteria contained in <strong>the</strong> legal text (in this case in <strong>the</strong> constitutionand/or in statute) i.e. on criteria that can be activated by established methods <strong>of</strong>interpretation. If <strong>the</strong> legal text does not contain any support on which to base<strong>the</strong> understanding <strong>the</strong>re<strong>of</strong>, one cannot speak <strong>of</strong> interpretation: in such a case ateleological interpretation cannot replace o<strong>the</strong>r interpretative arguments and initself (as <strong>the</strong> 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 <strong>the</strong> 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 <strong>the</strong> legal nature <strong>of</strong> teleologicalinterpretation that it must also be based on o<strong>the</strong>r elements built into <strong>the</strong> legalsystem 9 . The greater <strong>the</strong> number <strong>of</strong> <strong>the</strong>se elements determining <strong>the</strong> interpretationwith regard to its meaning and <strong>the</strong> more <strong>the</strong>se elements complement oneano<strong>the</strong>r or <strong>the</strong> less <strong>the</strong>y exclude or even contradict one ano<strong>the</strong>r, <strong>the</strong> morecoherent <strong>the</strong> teleological interpretation is. The task <strong>of</strong> <strong>the</strong> interpreter is to workout <strong>the</strong>se criteria, to combine and evaluate <strong>the</strong>m and to substantiate a solutionhe accepts as <strong>the</strong> one carrying <strong>the</strong> greatest weight and <strong>the</strong> most reasonable one.It is natural and legal that <strong>the</strong> interpreter first looks for <strong>the</strong> criteriaconcerning <strong>the</strong> purpose <strong>of</strong> a legal rule in <strong>the</strong> legal text itself. Logical interpretationwill tell him whe<strong>the</strong>r <strong>the</strong> 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 <strong>the</strong> purpose attributed to <strong>the</strong> legal text (legal rule) by <strong>the</strong> lawmaker or to <strong>the</strong>purpose determined by <strong>the</strong> historical circumstances that gave rise to <strong>the</strong> legaltext and in which circumstances <strong>the</strong> legal text originated. In a broader sensehistorical interpretation will also open <strong>the</strong> dilemma whe<strong>the</strong>r <strong>the</strong> interpreter isbound by ”<strong>the</strong> will <strong>of</strong> <strong>the</strong> historical constitution-maker”, ”<strong>the</strong> will <strong>of</strong> <strong>the</strong> actualconstitution-maker” or by <strong>the</strong> purpose <strong>the</strong> independent text has acquired by <strong>the</strong>time <strong>of</strong> <strong>the</strong> interpretation (objective-dynamic interpretation). In this broadrange <strong>of</strong> possibilities, which may also be divergent and contradictory, systematicinterpretation will draw attention to <strong>the</strong> meaning <strong>of</strong> legal principles, to <strong>the</strong>meaning <strong>of</strong> <strong>the</strong> legal rule with regard to its position in <strong>the</strong> system, and to <strong>the</strong>”internal logic” combining <strong>the</strong> parts into a whole and <strong>the</strong>reby determining <strong>the</strong>mwith regard to <strong>the</strong> purpose.An ideal situation is when <strong>the</strong>se and o<strong>the</strong>r interpretative arguments act inaccordance with one ano<strong>the</strong>r and <strong>the</strong>reby confirm that <strong>the</strong> legal text has arelatively clear and definite meaning. In legal practice, however, it <strong>of</strong>ten happensthat <strong>the</strong> arguments do not seem to work toge<strong>the</strong>r and make it possible to discovertwo or even more meanings <strong>of</strong> a legal text. In <strong>the</strong> event <strong>of</strong> a collision between<strong>the</strong> arguments, <strong>the</strong> argument <strong>of</strong> purpose (teleological argument) carries specialweight. It is generally accepted in <strong>the</strong>ory and legal practice that in such a situation,among several linguistically possible solutions, <strong>the</strong> one best corresponding to <strong>the</strong>purpose <strong>of</strong> <strong>the</strong> legal rule has to be chosen. A necessary condition is, <strong>of</strong> course,that this is not <strong>the</strong> purpose that <strong>the</strong> interpreter presupposes or even desires, butthat this is a purpose that is already expressed by <strong>the</strong> legal text or which canbe understood from <strong>the</strong> text and its teleological context to a relatively (i.e.sufficiently) defined extent.V The Importance <strong>of</strong> Legal PrinciplesThe limits and <strong>the</strong> orientation <strong>of</strong> constitutional possibilities are alsodetermined by <strong>the</strong> legal principles that have already been mentioned severaltimes. In positive-law <strong>the</strong>ory and in legal practice legal principles are <strong>of</strong>ten notsufficiently observed. For many <strong>the</strong> main legal guideline is still <strong>the</strong> legal rule(for some, even just <strong>the</strong> ”legal regulation”, ”legal provision”, ”constitutionalprovision”, ”article” <strong>of</strong> constitution, etc.) and not also <strong>the</strong> legal principle, thoughboth legal guidelines are closely connected to each o<strong>the</strong>r: rules without principles
182Marijan Pavčnikwould lose <strong>the</strong>ir direction (as well as <strong>the</strong>ir inner substance) and <strong>the</strong>reby fossilize,principles without rules would lose <strong>the</strong>ir variety with regard to content (as wellas <strong>the</strong>ir foreseeability and <strong>the</strong> firmness <strong>of</strong> <strong>the</strong>ir meaning), which would result inunprincipled and arbitrary legal adjudication. In short, <strong>the</strong> law is a system <strong>of</strong>legal principles and legal rules and within this whole <strong>the</strong>re are differences thathave to be considered.For instance, <strong>the</strong> following differences are important for <strong>the</strong> interpretation<strong>of</strong> <strong>the</strong> constitution. It is in <strong>the</strong> nature <strong>of</strong> legal principles that <strong>the</strong>y are valuecriteria put into effect by legal rules. The constitution-maker and <strong>the</strong> legislatureoperationalize <strong>the</strong> constitutional principles: <strong>the</strong> former does it within <strong>the</strong>constitution itself, which is a system <strong>of</strong> constitutional principles and rules, and<strong>the</strong> latter does it by statutes which, with regard to <strong>the</strong>ir content, are subordinateto constitutional principles and constitutional rules. The legislature’s field <strong>of</strong>decision 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 <strong>the</strong> principle <strong>of</strong> a state governed by <strong>the</strong> rule <strong>of</strong>law or with <strong>the</strong> principle <strong>of</strong> a social state) to an upper limit, which can be ashigh as possible (e.g. <strong>the</strong> Disability Insurance Act may encompass a very highdegree <strong>of</strong> social values). Actually, <strong>the</strong> upper limit is an optimum that can neverbe reached 10 .Legal principles are characterized by a high degree <strong>of</strong> abstractness. Theabstractness is so high that nei<strong>the</strong>r all cases to which <strong>the</strong> 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 <strong>the</strong> relevant factual elements several principles are applied at<strong>the</strong> same time (though with a different degree <strong>of</strong> intensity, which colours differentlegal principles to such an extent that <strong>the</strong>y are not mutually exclusive). In aconcrete case <strong>the</strong> court can decide to exclude one or several principles if someo<strong>the</strong>r principle proves to be stronger (e.g. <strong>the</strong> right to reverence, which is anelement <strong>of</strong> <strong>the</strong> right to privacy, has priority over freedom <strong>of</strong> expression).In <strong>the</strong> German constitutional-court practice <strong>the</strong> ”Lebach judgement”caused lively debate. In this judgement <strong>the</strong> court gave priority to <strong>the</strong> protection<strong>of</strong> personality over freedom <strong>of</strong> expression (information). A documentaryshowed how four persons were killed because <strong>of</strong> <strong>the</strong> <strong>the</strong>ft <strong>of</strong> some weapons. Theconvicted person, who aided and abetted <strong>the</strong> felony, was named several times in10See: Alexy Robert: Theorie der Grundrechte. Frankfurt/Main 1986, pp. 75-76
Constitutional Interpretation 183<strong>the</strong> film and his picture was shown as well. At <strong>the</strong> time when <strong>the</strong> documentaryshould have been televised he was due to be released from prison. If <strong>the</strong> filmhad been televised, his resocialization would have been endangered. The regularcourts did not substantiate his claim that <strong>the</strong> documentary should not betelevised. In <strong>the</strong> proceedings <strong>of</strong> his constitutional complaint this was done by<strong>the</strong> Constitutional Court. It evaluated <strong>the</strong> opposing rights as principles and was<strong>of</strong> <strong>the</strong> opinion that, in view <strong>of</strong> <strong>the</strong> circumstances <strong>of</strong> <strong>the</strong> case, such an intensiveinvasion <strong>of</strong> <strong>the</strong> protection <strong>of</strong> personality would take place that <strong>the</strong> freedom <strong>of</strong>expression (information) must give way to <strong>the</strong> protection <strong>of</strong> personality 11 .A peculiarity <strong>of</strong> basic (human) rights is that each <strong>of</strong> <strong>the</strong>m is based on asuitable principle it operationalizes as a legal rule (right). If two rights are inconflict, first a conflict <strong>of</strong> two principles arises (e.g. a conflict between <strong>the</strong>protection <strong>of</strong> personality and freedom <strong>of</strong> expression). It depends on <strong>the</strong> nature<strong>of</strong> <strong>the</strong> principles and on <strong>the</strong> characteristics <strong>of</strong> <strong>the</strong> life case whe<strong>the</strong>r <strong>the</strong> twoprinciples can co-exist (in any proportion) or whe<strong>the</strong>r one <strong>of</strong> <strong>the</strong>m must giveway to <strong>the</strong> o<strong>the</strong>r. Behind a conflict <strong>of</strong> two rights ano<strong>the</strong>r, even stronger conflicttakes place, namely <strong>of</strong> two principles that make it possible to arrive at a legaldecision. Here we are dealing with <strong>the</strong> doctrine that human rights and basicfreedoms are only limited by (those) rights <strong>of</strong> o<strong>the</strong>rs that are mutually limitablein view <strong>of</strong> legal principles, and not by <strong>the</strong> rights <strong>of</strong> o<strong>the</strong>rs that are, in view <strong>of</strong>legal principles, evidently weaker than ano<strong>the</strong>r (stronger) right.At first glance it seems that <strong>the</strong> situation in <strong>the</strong> latter case is <strong>the</strong> same aswhen choosing among several legal rules in order to solve a concrete life case.The basic difference lies in <strong>the</strong> circumstance that in choosing among severalpossible rules, more emphasis is placed on <strong>the</strong> comparison <strong>of</strong> <strong>the</strong> factual andnormative constituent elements, whereas in choosing between two or moreprinciples more weight is given to <strong>the</strong> valuation itself. Also in <strong>the</strong> 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 <strong>the</strong> case <strong>of</strong> legal rules <strong>the</strong> interpretation path isusually shorter and less complex, whereas with legal principles <strong>the</strong> interpretationprocedure is generally more prolonged and more complex. In ei<strong>the</strong>r case <strong>the</strong>decision is only possible when <strong>the</strong> rule/principle is chosen and when at <strong>the</strong>same 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 <strong>of</strong> ApplicationIt is in <strong>the</strong> nature <strong>of</strong> <strong>the</strong> legal (also constitutional) understanding <strong>of</strong> legaltexts that one can understand <strong>the</strong>m differently than <strong>the</strong> constitution-framers. Theunderstanding <strong>of</strong> a legal (constitutional) text is always a part <strong>of</strong> correspondingbroader and narrower contexts, and <strong>the</strong> interpreter himself is also a part <strong>of</strong><strong>the</strong>se contexts. The broader context corresponds to <strong>the</strong> historical and culturaltradition and to <strong>the</strong> time <strong>of</strong> activity, <strong>the</strong> narrower context is <strong>of</strong> a more legalnature and is co-determined by <strong>the</strong> constitutional and <strong>the</strong> entire state-laworders, by <strong>the</strong> dominant political ideology and values, by legal <strong>the</strong>ory and legaldogmatics, by <strong>the</strong> education <strong>of</strong> lawyers, and <strong>the</strong> manner <strong>of</strong> legal thinking (bothare important elements <strong>of</strong> <strong>the</strong> lawyers’ pre-understanding), by <strong>the</strong> court andconstitutional-court practice, and finally by <strong>the</strong> concrete case that gave rise to<strong>the</strong> interpretation.The fact that a legal text (<strong>the</strong> constitution) can be wiser than its authorand <strong>the</strong> interpreter wiser than both <strong>of</strong> <strong>the</strong>m 12 is not bad in itself. It is simply aproperty <strong>of</strong> understanding, which is a never finished process and is thus nevergiven in advance as a closely rounded fact. Any understanding <strong>of</strong> a legal text is,as has already been stated, caused by concrete life cases (<strong>the</strong> case can also be <strong>the</strong>text <strong>of</strong> a statute that has to be in conformity with <strong>the</strong> constitution). Also Gadamer’slegal hermeneutics pays attention to <strong>the</strong> mode <strong>of</strong> application: ”The juristunderstands <strong>the</strong> meaning <strong>of</strong> <strong>the</strong> law from <strong>the</strong> present case and for <strong>the</strong> sake <strong>of</strong>this present case” 13 . It is characteristic that <strong>the</strong> application is no laterapplication <strong>of</strong> a given generality, which was initially understood in itself, to agiven case, but <strong>the</strong> application is only <strong>the</strong> real understanding <strong>of</strong> <strong>the</strong> generalityitself, which <strong>the</strong> given text represents for us 14 . Fur<strong>the</strong>rmore: ”The judge whoadapts <strong>the</strong> transmitted law to <strong>the</strong> needs <strong>of</strong> <strong>the</strong> 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 <strong>the</strong> ’legal idea’in mediating it with <strong>the</strong> present” 15 .If one thinks about it, <strong>the</strong> new understanding <strong>of</strong> <strong>the</strong> constitution is notnecessarily better than <strong>the</strong> previous one, yet it can certainly be a differentunderstanding if <strong>the</strong> case and <strong>the</strong> circumstances <strong>of</strong> <strong>the</strong> understanding havechanged. It is a special feature <strong>of</strong> legal understanding that it must remain within<strong>the</strong> framework <strong>of</strong> <strong>the</strong> possibilities <strong>of</strong>fered by <strong>the</strong> constitutional text itself and thatit must – within <strong>the</strong>se limits – look for a solution that is typical for <strong>the</strong> society asmuch as possible. However, <strong>the</strong> constitutional text itself cannot guarantee that<strong>the</strong>se requirements will be considered (and filled with contents) at all and howthis will be done; if <strong>the</strong> text is <strong>of</strong> good quality (with regard to <strong>the</strong> language andto <strong>the</strong> thinking), it can pave <strong>the</strong> way for legal <strong>the</strong>ory and legal practice to be ableto fulfil <strong>the</strong>se requirements.Legal <strong>the</strong>ory has much room to manoeuvre. It can be very important in<strong>the</strong> educational as well as in <strong>the</strong> <strong>the</strong>oretical field. In <strong>the</strong> educational field it isimportant whe<strong>the</strong>r it contributes to making lawyers capable <strong>of</strong> independent andproblem-orientated thinking. Problem-orientated legal thinking is responsiblethinking, which each time also requires reasons (arguments). High creativepossibilities can also be found in <strong>the</strong> field <strong>of</strong> legal <strong>the</strong>ory (in a broader sense <strong>of</strong><strong>the</strong> word). A good understanding <strong>of</strong> <strong>the</strong> constitution is always based, inter alia,on appropriate legal <strong>the</strong>ory and on appropriate legal dogmatics.An interpretation <strong>of</strong> <strong>the</strong> constitution without considering concreteconstitutional-court cases cannot work. Mutatis mutandis, this is also true <strong>of</strong> aconstitutional-court practice that is deaf to legal <strong>the</strong>ory. The standard (typus)quality <strong>of</strong> constitutional rules is sometimes just hinted at in <strong>the</strong> 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 <strong>the</strong>re can be achieved a dialogue and a suitablecreative tension between a practice that can listen to <strong>the</strong> views and intentions <strong>of</strong> <strong>the</strong><strong>the</strong>ory and a <strong>the</strong>ory that knows where <strong>the</strong> real law is created [cf. e. g. Maunz/Dürig’s Grundgesetz Kommentar (Commentary on <strong>the</strong> 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 <strong>of</strong> <strong>the</strong> constitution is only permissible whenwe have sound (conclusive) arguments for diverging from <strong>the</strong> establishedconstitutional-court practice, for changing it and/or bringing new nuances into it.VII Links to O<strong>the</strong>r EntriesThe entry Constitutional Interpretation has many links to o<strong>the</strong>r entries.The strongest connections include <strong>the</strong> entries Constitution, Constitutionalism,Judicial Review, Statutory Interpretation, and Methods <strong>of</strong> Interpretation, and withinthis framework, more broadly connected are <strong>the</strong> entries on ConstitutionalPrinciples, Constitutional Rights and Constitutional Duties, Constitutional Values,Democracy and Modern Law, Law and Politics, Rule <strong>of</strong> Law, State, etc. Thoseentries which treat <strong>the</strong> contents <strong>of</strong> <strong>the</strong> constitution and various concepts <strong>of</strong> howa state should operate are especially connected to this entry.The entry Constitutional Interpretation is focused on <strong>the</strong> interpretation <strong>of</strong><strong>the</strong> constitution as a written (formal legal) act. The entries on ConstitutionalConventions, which are especially characteristic <strong>of</strong> <strong>the</strong> United Kingdom, and on<strong>the</strong> Constitution <strong>of</strong> <strong>the</strong> United States, which due to <strong>the</strong> interpretative role <strong>of</strong> <strong>the</strong>Supreme Court actively contributes to a modern understanding <strong>of</strong> constitutionalityand <strong>the</strong> rule <strong>of</strong> law, both deserve separate treatment. The item ConstitutionalInterpretation in <strong>the</strong> UK and USA is an entry <strong>of</strong> 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 <strong>the</strong> Supreme Court <strong>of</strong> <strong>the</strong> United States. New York,Oxford 1992, pp. 183-190.Bogdanor Vernon (ed.): The British Constitution in <strong>the</strong> Twentieth <strong>Century</strong>.Oxford 2005.Canaris Claus-Wilhelm: Systemdenken und Systembegriff in der Jurisprudenz.2 nd Edition. Berlin 1983.Dicey A. V.: Introduction to <strong>the</strong> Study <strong>of</strong> <strong>the</strong> Law <strong>of</strong> <strong>the</strong> 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 <strong>of</strong> 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 <strong>of</strong> 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, Kirchh<strong>of</strong> Paul (eds.): Handbuch des Staatsrechts. Band II. Heidelberg1987. Band VII. Heidelberg 1992.Jovičić Miodrag: O ustavu (About <strong>the</strong> Constitution). Beograd 1977.Kant Immanuel: Kritik der praktischen Vernunft. Suhrkamp: Frankfurt/Main1989.Kelsen Hans: General Theory <strong>of</strong> 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, Kirchh<strong>of</strong> (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 <strong>the</strong> United States, in: MacCormickNeil D., Summers Robert S. (eds.) 1991, pp. 407-459.Winkler Gün<strong>the</strong>r: Studien zum Verfassungsrecht. Wien, New York 1991.
2 Slobodan Beljanski, PhDAttorney <strong>of</strong> Law, Novi Sad, SerbiaPOUND’S CONCEPT OF LAW STANDARDSAbstract: <strong>American</strong> legal <strong>the</strong>oretician Roscoe Pound was among <strong>the</strong> firstto point to <strong>the</strong> fact that law, in addition to rules, principles and concepts,governs life also by <strong>the</strong> criterion which we refer to as law standards. We use<strong>the</strong>m, he believed, in <strong>the</strong> 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 <strong>the</strong> basic postulate that lawstandards belong to <strong>the</strong> application and enforcement <strong>of</strong> law, notices that <strong>the</strong>irfunction cannot be singled out from <strong>the</strong> field <strong>of</strong> law creation and that <strong>the</strong>ir contentcannot be deprived <strong>of</strong> ideals. Norms are part <strong>of</strong> <strong>the</strong> corpus <strong>of</strong> competent directivesfor decision-making. However, having in mind that <strong>the</strong>ir starting points areaccepted ideals, a procedure for reaching such ideals and methods <strong>of</strong> <strong>the</strong>ir use is by<strong>the</strong>ir character <strong>of</strong> legislative nature. In such a way, interpretation in law starts to be<strong>of</strong> use to creation while passing a judgment to setting goals based on ethics.In this paper <strong>the</strong> author analyses Pound’s postulates and concludes thatdisregarding <strong>the</strong> fact that his idea <strong>of</strong> law standards cannot be identified withcontemporary meaning <strong>of</strong> this phenomenon, in things most closely linked withreality and to which answers can be given only under shadow <strong>of</strong> consistentrelativism, Pound presents us with <strong>the</strong> absolute and <strong>the</strong> contradiction <strong>of</strong>metaphysics. The metaphysical dimension <strong>of</strong> 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 <strong>of</strong> itsacceptable universality. Metaphysics <strong>of</strong> law standards is an expression <strong>of</strong> ourincompletion <strong>of</strong> law and unattainability <strong>of</strong> justice.Key words: law standards, moral ponderation, relativism, ideals, metaphysics
190Petar Te<strong>of</strong>ilovićThe frequent and wide usage <strong>of</strong> <strong>the</strong> concept law standard is, to say <strong>the</strong>least, different from its meaning: it is nei<strong>the</strong>r 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 <strong>of</strong>positive law and systems <strong>of</strong> juristic interpretation.The original use <strong>of</strong> this concept in <strong>the</strong> contemporary <strong>the</strong>ory referred to<strong>the</strong> juristic interpretation. Law standards were used only as a methodicalphenomenon in <strong>the</strong> ”technique <strong>of</strong> law”, and not as a source <strong>of</strong> law. That is why<strong>the</strong>y were deduced to a judge’s decision in <strong>the</strong> service <strong>of</strong> legality. One <strong>of</strong> <strong>the</strong>supporters <strong>of</strong> this interpretation claims that, in using standards and directives,<strong>the</strong> judge does not depart from <strong>the</strong> principle <strong>of</strong> legality, he applies legal conceptsin a way which corresponds to <strong>the</strong>ir typological nature. 1 Such comprehension <strong>of</strong>law standards would be more precisely termed as standard ways <strong>of</strong> interpretation.<strong>American</strong> law <strong>the</strong>oretician Roscoe Pound is said to be among <strong>the</strong> first topoint to <strong>the</strong> fact that law, in addition to rules, principles and concepts, governsrelationships in a society by measures we call law standards. We use <strong>the</strong>m, hewrote, in <strong>the</strong> individualization process when practicing law, when we are forcedto rely on our experience and resort to intuition. This approach has led to <strong>the</strong>conclusion that law standards become prominent only when using discretionalauthorities and assessing circumstances which are characteristic <strong>of</strong> individualcases.In his criticism <strong>of</strong> realistic radicalism, Pound has ascribed three featuresto law standards: <strong>the</strong>y contain a moral judgment about people’s behavior,instead <strong>of</strong> exact legal knowledge, <strong>the</strong>y demand <strong>the</strong> judgment <strong>of</strong> common sense,and <strong>the</strong>y are relative regarding place, time and circumstances. 2 It is easy to seethat Pound’s categorization is tautological and conclusive. Each <strong>of</strong> <strong>the</strong> threelisted features is deduced to <strong>the</strong> level <strong>of</strong> <strong>the</strong> same class and explanation, whileevery latter feature follows from <strong>the</strong> former. That is actually why Pound claimsonly that law standards are <strong>the</strong> judgments <strong>of</strong> relative character, based on commonsense, intuition and moral judgment. His assertion is <strong>the</strong> consequence <strong>of</strong> anunderstanding that moral judgment belongs to <strong>the</strong> realm <strong>of</strong> common sense, that1Frank, S., Standardi i direktive u kaznenom pravu, Arhiv, 5-6/1939, p. 423-432.2Pound, R., Introduction to <strong>the</strong> Philosophy <strong>of</strong> Law, New Haven, 1961, cited in: Paund, R.,Uvod u filoz<strong>of</strong>iju prava, Podgorica, 1996. transl. by N. S. Krznarić, p. 101-102; <strong>Jurisprudence</strong>,cited in: Paund, R., Jurisprudencija, I, Beograd – Podgorica, 2000, transl. by Đ. Krstić, p. 360.
The Contribution <strong>of</strong> <strong>the</strong> US <strong>Jurisprudence</strong> to Freedom... 191common sense relies primarily on intuition, and that intuition operates in <strong>the</strong>sphere <strong>of</strong> relative values.Whe<strong>the</strong>r because he realized this weakness or because <strong>of</strong> <strong>the</strong> unfinishednature <strong>of</strong> his assumptions, Pound did not ascribe any particular credits to hisname regarding <strong>the</strong> introduction <strong>of</strong> law standards in <strong>the</strong> systematics <strong>of</strong> law. On<strong>the</strong> contrary, he stressed that law standards appeared even in Roman law andnatural law. That is because he referred to Cicero’s attitude that <strong>the</strong> decision onactiones bonae fidei, because <strong>of</strong> too much freedom allowed by <strong>the</strong>ir interpretations,should be given to judges with firm beliefs and strong personalities.Besides that, Pound’s usage <strong>of</strong> this concept is not devoid <strong>of</strong> contradictions.How can anything standard be deduced from a string <strong>of</strong> conditional accidencesconnected with our immediate comprehension and more or less arbitrary sense<strong>of</strong> values? Isn’t intuitive opinion a paradox? Aren’t standardized views <strong>of</strong> <strong>the</strong>world, based on any known eschatology, merely castles in <strong>the</strong> sand? Let us justremember a bitter remark <strong>of</strong> a contemporary thinker that none <strong>of</strong> <strong>the</strong> essentialphilosophical questions have been answered up to now and that no standards inour civilization give way to realists over nominalists, critics over supporters <strong>of</strong> <strong>the</strong>semantic concepts <strong>of</strong> truth. How is it <strong>the</strong>n 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 <strong>the</strong> material sense he considers<strong>the</strong>m to be standards <strong>of</strong> behavior proscribed by <strong>the</strong> law. In <strong>the</strong> processual sensehe regards <strong>the</strong>m as part <strong>of</strong> <strong>the</strong> corpus <strong>of</strong> relevant points in decision making. 3 Inboth cases <strong>the</strong> stress lies on <strong>the</strong> parameters <strong>of</strong> value. Whe<strong>the</strong>r this is about <strong>the</strong>criteria <strong>of</strong> behavior or <strong>the</strong> criteria <strong>of</strong> decision making, law standards have arisenout <strong>of</strong> our liberty and are directed against that liberty. Originating in <strong>the</strong> realm<strong>of</strong> free will, where we are allowed to act or decide ei<strong>the</strong>r this way or that,standards are <strong>the</strong> result <strong>of</strong> <strong>the</strong> 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 <strong>the</strong>law 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 <strong>the</strong>se questions is as old as <strong>the</strong> <strong>the</strong>ory itself.Even Aristotle considered that <strong>the</strong>re is no comprehensive law and that is why3Ibid., p. 398.
192Petar Te<strong>of</strong>ilović<strong>the</strong> essence <strong>of</strong> justice is in compensating <strong>the</strong> generality or incompleteness <strong>of</strong> 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 <strong>the</strong> one who adjusts laws withreference to equity actually abides to <strong>the</strong> justice he imagines. 5Things are more or less clear regarding norms with an immediatediscretional authority, such as <strong>the</strong> one concerning responsibility based on equity.In obligational law, for example, it is proscribed that, when <strong>the</strong> interests <strong>of</strong>equity demand so, <strong>the</strong> court will decide that <strong>the</strong> damage shall be compensatedby <strong>the</strong> damaging party who is not responsible, or <strong>the</strong> parent who bears noresponsibility for <strong>the</strong> damage inflicted by a minor, having in mind <strong>the</strong> materialresources <strong>of</strong> <strong>the</strong> damaged and <strong>the</strong> person whose burden <strong>the</strong> damage should be.Far more complex are <strong>the</strong> norms which do not invoke only one principle,but also contain a reflexive disjunction <strong>of</strong> two or more principles.In <strong>the</strong> contemporary accusatory criminal procedure it is <strong>the</strong> law standardthat <strong>the</strong> prosecutor must prove that <strong>the</strong> factual and legal basis <strong>of</strong> <strong>the</strong> culpabilityare beyond any reasonable doubt and that <strong>the</strong> court in case <strong>of</strong> any doubt willrule in favor <strong>of</strong> <strong>the</strong> defendant. The law standard, however, as a supporter <strong>of</strong>Pound’s interpretation would say, is not only in <strong>the</strong> initial goal <strong>of</strong> <strong>the</strong> rule on<strong>the</strong> burden <strong>of</strong> evidence, but also in <strong>the</strong> final aspects <strong>of</strong> delimiting suspicion andconviction, which means that in <strong>the</strong> method <strong>of</strong> conclusion which precedesdecision making and which helps form <strong>the</strong> awareness <strong>of</strong> what makes a certaincontent beyond any reasonable doubt or, which is one step fur<strong>the</strong>r (althoughlogic tells us it is one and <strong>the</strong> same), which helps form <strong>the</strong> awareness that acertain content has not progressed fur<strong>the</strong>r than reasonable doubt.In contemporary law standard is also <strong>the</strong> right <strong>of</strong> <strong>the</strong> defendant to have alawyer. This right, although absolute, from <strong>the</strong> aspect <strong>of</strong> <strong>the</strong> one it is intended for isnei<strong>the</strong>r equally available nor equally desirable. There are defendants who considerthat <strong>the</strong>y need <strong>the</strong> help <strong>of</strong> a competent person, but do not meet <strong>the</strong> conditionsnecessary for <strong>the</strong> court to appoint a lawyer to defend <strong>the</strong>m or do not have <strong>the</strong>means to hire a lawyer and pay <strong>the</strong> costs. There are also defendants who do notwant a lawyer, although it is <strong>the</strong> court’s duty to appoint <strong>the</strong>m one. Our Law onCriminal Procedure proscribes that in <strong>the</strong> former case, except in case <strong>of</strong> <strong>the</strong> lightestcriminal <strong>of</strong>fences, <strong>the</strong> court will appoint a defense lawyer following <strong>the</strong> demand <strong>of</strong>4Aristotle, Nicomachean Ethics, 1137b.5Pascal, B., Pensées, 294.
The Contribution <strong>of</strong> <strong>the</strong> US <strong>Jurisprudence</strong> to Freedom... 193<strong>the</strong> defendant if it is in <strong>the</strong> interest <strong>of</strong> justice (article 72, paragraph 1, Law onCriminal Procedure). In <strong>the</strong> latter case <strong>the</strong> only solution our Law <strong>of</strong>fers in <strong>the</strong>imposition <strong>of</strong> a defense lawyer, despite <strong>the</strong> fact that <strong>the</strong> imposition <strong>of</strong> <strong>the</strong> rightwhich is rejected is always unjust to <strong>the</strong> recipient himself. The standard <strong>of</strong> right to<strong>the</strong> formal defense, <strong>the</strong>refore, includes <strong>the</strong> principles for abstractly conditioned, yetdeterminable exceptions to <strong>the</strong> rule, or <strong>the</strong> exceptions to <strong>the</strong> exceptions whichultimately lead to <strong>the</strong> negation <strong>of</strong> <strong>the</strong> right itself. The Hague Tribunal had to createsolutions for <strong>the</strong> defendants who rejected a lawyer and thusly created a standard on<strong>the</strong> right and standard on <strong>the</strong> aberration <strong>of</strong> <strong>the</strong> right.The right to privacy, <strong>the</strong> freedom <strong>of</strong> religion, <strong>the</strong> freedom <strong>of</strong> expression,<strong>the</strong> prohibition <strong>of</strong> discrimination and <strong>the</strong> right to education are material lawstandards <strong>of</strong> <strong>the</strong> modern civilization. When <strong>the</strong>y are conflicted, Pound’sformula may be <strong>of</strong> use. A typical example is a recent decision <strong>of</strong> <strong>the</strong> EuropeanCourt in <strong>the</strong> Sahin case. In March 1998 Leila Sahin was banned from taking anexam and attending classes in <strong>the</strong> Medical School in Istanbul because she didnot want to stop wearing a headscarf. The ban was based on an earlier order <strong>of</strong>deputy principal <strong>of</strong> University, in accordance with <strong>the</strong> authority proscribed by<strong>the</strong> Turkish law and confirmed practice <strong>of</strong> <strong>the</strong> Constitutional Court <strong>of</strong> Turkey,which bans male students with beards and female students with headscarvesfrom attending lectures, courses and exercise classes. In <strong>the</strong> verdict <strong>of</strong> June 292004 <strong>the</strong> Council <strong>of</strong> <strong>the</strong> European Court ruled that <strong>the</strong>re was no violation <strong>of</strong>Article 9 and that in connection with this Act <strong>the</strong>re is no violation <strong>of</strong> Articles 8and 10 <strong>of</strong> <strong>the</strong> European Convention. Referring to <strong>the</strong> fact that this is a problemwhich concerns <strong>the</strong> questions <strong>of</strong> general importance, but is also <strong>of</strong> significancefor <strong>the</strong> interpretation and application <strong>of</strong> <strong>the</strong> Convention, Leila Sahin used <strong>the</strong>right from Article 43 <strong>of</strong> <strong>the</strong> European Convention and demanded that <strong>the</strong> casebe brought to <strong>the</strong> Grand Chamber. Although <strong>the</strong>y accepted that <strong>the</strong> prohibition isa limitation <strong>of</strong> <strong>the</strong> rights to <strong>the</strong> freedom <strong>of</strong> religion and to education, <strong>the</strong> GrandChamber concluded that <strong>the</strong>re was no breach <strong>of</strong> <strong>the</strong> European Convention:<strong>the</strong> intervention <strong>of</strong> Turkish authorities was in <strong>the</strong> domain <strong>of</strong> <strong>the</strong> rights <strong>of</strong> acontracting country to free assessment, in which case <strong>the</strong> essence <strong>of</strong> <strong>the</strong> right toeducation was not harmed and in <strong>the</strong> intervention <strong>of</strong> Turkish authorities in one’sprivate life, freedom <strong>of</strong> convictions and freedom <strong>of</strong> expression was predictableand proportional to <strong>the</strong> justified aims <strong>of</strong> a democratic society to protect <strong>the</strong>freedoms and rights <strong>of</strong> o<strong>the</strong>r people.As it turns out, in all <strong>of</strong> this <strong>the</strong> border <strong>of</strong> our freedom is directed atideals: <strong>the</strong> ideal <strong>of</strong> justice, <strong>the</strong> ideal <strong>of</strong> <strong>the</strong> essence <strong>of</strong> law, <strong>the</strong> ideal <strong>of</strong> causes <strong>of</strong> a
194Petar Te<strong>of</strong>ilovićdemocratic society. At <strong>the</strong> same time <strong>the</strong> creation and interpretation <strong>of</strong> lawbecome inseparable because in law <strong>the</strong>re is almost no way <strong>of</strong> creating andinterpreting which, to use Fuller’s words, can be free <strong>of</strong> aspiration or innermorality.Pound himself will later, without abandoning <strong>the</strong> essential principle thatlaw standards belong to <strong>the</strong> application and implementation <strong>of</strong> law, touch upona <strong>the</strong>sis that <strong>the</strong>ir function cannot be separated from <strong>the</strong> domain <strong>of</strong> law creationand <strong>the</strong>ir content cannot be devoid <strong>of</strong> ideals. 6 All those who create or apply laware referred to an idealized picture <strong>of</strong> <strong>the</strong> social order which, as a basic reality,reflects legal institutions, legal rules and legal education. 7 In law <strong>the</strong>re is acorpus <strong>of</strong> accepted and authoritative ideals. This element is deduced to animage <strong>of</strong> social order <strong>of</strong> a certain time and place, encompasses a law traditioncharacteristic <strong>of</strong> that order and, consequently, <strong>of</strong> <strong>the</strong> purpose and aim <strong>of</strong> <strong>the</strong>social control which represent <strong>the</strong> basic frames <strong>of</strong> interpretation and application<strong>of</strong> regulations and especially law standards. 8 Courts and individual lawyers inany developed legal system have always acted on <strong>the</strong> basis <strong>of</strong> something higherthan a formal whole <strong>of</strong> 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 <strong>the</strong> court tradition, <strong>the</strong>y become part <strong>of</strong> law, just like regulations.Actually, <strong>the</strong>y give to regulations <strong>the</strong>ir living content and in difficult cases <strong>the</strong>ybecome a final basis for <strong>the</strong> selection, shaping and application <strong>of</strong> legal materialin decision making. 9Ross determined this viewpoint as jurisprudential idealism. In this type <strong>of</strong>idealism, he ascertained, <strong>the</strong> knowledge <strong>of</strong> law is simultaneously based on <strong>the</strong>outer experience and on a priori judgment. Law is a phenomenon <strong>of</strong> reality inthat it is created by people and in that it depends on <strong>the</strong> exterior factors <strong>of</strong>authority. However, in order for this fact to become valid, it must be given andundeductible by immediate intuition <strong>of</strong> sense and by <strong>the</strong> set demand. Law isboth a phenomenon and a validity, unlike moral, which is pure validity. 106Pound, R., <strong>Jurisprudence</strong>, cited in Paund, R., Jurisprudencija, II, p. 398 ff; Ideal Element inLaw, Indianapolis, 2002, p. 31, 371 ff.7Pound, R., Interpretations <strong>of</strong> Legal History, New York, 1923, p. 5.8Pound, R., <strong>Jurisprudence</strong>, 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 <strong>of</strong> <strong>the</strong> US <strong>Jurisprudence</strong> to Freedom... 195That is why law is never complete or, to be more precise, that is why inlaw <strong>the</strong>re are always things that cannot be reached. It is an expression <strong>of</strong> animperfect anthropogenous desire for perfection.In his considerations <strong>of</strong> <strong>the</strong> phenomenology <strong>of</strong> law Alexandre Kojévethought this is about a desire directed at ano<strong>the</strong>r desire, about an anthropogenousdesire which establishes a virtual man and his potentiality, which is <strong>the</strong> reasonhe marked it as <strong>the</strong> source <strong>of</strong> <strong>the</strong> idea <strong>of</strong> justice, in case this desire contains adesire to confess. 11 In this sense we have not gone far from Aristotle’s postulate<strong>of</strong> <strong>the</strong> justice we imagine. Nei<strong>the</strong>r does Kant, when he finds <strong>the</strong> basis <strong>of</strong>categorical imperative in <strong>the</strong> principle which is <strong>the</strong> source <strong>of</strong> <strong>the</strong> form <strong>of</strong> actionwhose essential good consists <strong>of</strong> disposition and not <strong>of</strong> motives and effects. He<strong>the</strong>refore directly says that everyone is free in a practical sense only if <strong>the</strong>y actunder <strong>the</strong> idea <strong>of</strong> freedom and that freedom is just an idea <strong>of</strong> <strong>the</strong> mind whoseobjective reality is always in itself doubtful. 12 The same is <strong>the</strong> source <strong>of</strong> Jung’sunderstanding that <strong>the</strong> unattainablity <strong>of</strong> an ideal personality, as a full realization<strong>of</strong> <strong>the</strong> whole <strong>of</strong> 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 <strong>the</strong> 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 <strong>of</strong> destruction and conflicts which happen among people when <strong>the</strong>yenjoy <strong>the</strong> comforts <strong>of</strong> everyday life. 14It may be surprising at a first glance that <strong>the</strong>se viewpoints were notcriticized by <strong>the</strong> greatest critic <strong>of</strong> utopian engineering, Carl Popper. On <strong>the</strong>contrary, Popper commended Pound, not only on creating <strong>the</strong> concept <strong>of</strong> ”socialengineering”, 15 but also on <strong>the</strong> closeness <strong>of</strong> 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 <strong>the</strong> Philosophy <strong>of</strong> Law, op. cit. p. 89-90.15Popper thought that Pound was <strong>the</strong> first to use <strong>the</strong> expression ”social engineering” in <strong>the</strong>Introduction to <strong>the</strong> Philosophy <strong>of</strong> Law, which is seen in <strong>the</strong> following text: ”As for <strong>the</strong> present-
196Petar Te<strong>of</strong>ilovićwork in <strong>the</strong> domain <strong>of</strong> 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 ra<strong>the</strong>r 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 <strong>the</strong> tendency <strong>of</strong> resorting to <strong>the</strong> arbitrary power<strong>of</strong> <strong>the</strong> government and using ”justice without law”, where executive and evenlegislative ”justice” is abused. 18Trying to find a compromise formula for defining <strong>the</strong> concept <strong>of</strong> law, Poundassessed that <strong>the</strong> union <strong>of</strong> different conceptions is possible with <strong>the</strong> aid <strong>of</strong> <strong>the</strong> idea<strong>of</strong> social control. Law is, he concludes, <strong>the</strong> control <strong>of</strong> each <strong>of</strong> us through <strong>the</strong>pressure <strong>of</strong> people close to us, <strong>the</strong> control which is both unconscious andinvoluntary and immediate and directed. This pressure, more and more organizedand directed, establishes and maintains our mastering <strong>of</strong> human nature. Theprovince <strong>of</strong> jurisprudence is social control through a systematic application <strong>of</strong> <strong>the</strong>force <strong>of</strong> a politically organized society. This implies <strong>the</strong> existence <strong>of</strong> a legal systemwhich comprises valid material for <strong>the</strong> action <strong>of</strong> courts and existence <strong>of</strong> court andadministrative procedure that allows reasonable prediction. 19-day goals, I have an inclination in <strong>the</strong> history <strong>of</strong> law to constantly see a wider recognitionand satisfaction <strong>of</strong> human needs, demands or desires through social control, a much morecomprehensive and efficient provision <strong>of</strong> social interests, a constant and more complete andmore efficient eradication <strong>of</strong> devastation and prevention <strong>of</strong> conflicts in man’s enjoyment <strong>of</strong><strong>the</strong> pleasures <strong>of</strong> 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 <strong>the</strong> ”step by step engineering” <strong>the</strong> dire necessity is <strong>the</strong>establishment <strong>of</strong> <strong>the</strong> 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 <strong>the</strong> expression which marks a technologicalproblem <strong>of</strong> <strong>the</strong> reconstruction based on <strong>the</strong> total knowledge about physical data, <strong>the</strong> expressionused here to mark an experitmental attempt to improve <strong>the</strong> functioning <strong>of</strong> a part, regardless <strong>of</strong>how <strong>the</strong> 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 <strong>of</strong> <strong>the</strong> Common Law, Boston, 1921, p. 72.19Pound, R., <strong>Jurisprudence</strong>, op. cit., I, p. 13.
The Contribution <strong>of</strong> <strong>the</strong> US <strong>Jurisprudence</strong> 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. Ra<strong>the</strong>r, hegroups Pound alongside Stone, Keaton and Hochfeld as creators <strong>of</strong> eclecticdefinitions, who include logical-analytical, ethical and sociological problemsinto jurisprudence. 20 Reasonable prediction needs not only a stable and coherentprocess law, but also <strong>the</strong> same kind <strong>of</strong> law which makes <strong>the</strong> valid material fordecision making. In addition, <strong>the</strong> reach <strong>of</strong> law are not just decisions <strong>of</strong> a courtor an administrative body, but also <strong>the</strong> arrangement <strong>of</strong> relationships whichprecede <strong>the</strong>se decisions.Standards are part <strong>of</strong> <strong>the</strong> corpus <strong>of</strong> valid guidelines in decision making,but since <strong>the</strong>ir starting points are accepted ideals, <strong>the</strong> procedure <strong>of</strong> reachingsuch ideals and <strong>the</strong> way <strong>the</strong>y are used are in <strong>the</strong>ir character <strong>of</strong> legislative nature.Since <strong>the</strong> interpretation enters <strong>the</strong> sphere <strong>of</strong> law creation, <strong>the</strong> judicial functionintertwines with legislative.Pound’s contemporary and associate for a while, Hans Kelsen, had adifferent view <strong>of</strong> this. In responding to Karl Schmit’s accusations that he is ”one<strong>of</strong> <strong>the</strong> zealots <strong>of</strong> blind normativism” and supporters <strong>of</strong> normativist and formalisticlogic, Kelsen returned to his old <strong>the</strong>sis that <strong>the</strong> identification <strong>of</strong> law and justiceis a political and not a scientific tendency which aims at justifying <strong>the</strong> given socialorder. The phenomenon Pound calls law standards is nothing else to Kelsen buta legally non-binding postulate which exists only to <strong>the</strong> extent we allow freeevaluation. 21 Kelsen called <strong>the</strong> field <strong>of</strong> free evaluation an intentional indeterminacy<strong>of</strong> <strong>the</strong> act <strong>of</strong> law application, <strong>the</strong> indeterminacy contained in <strong>the</strong> intention <strong>of</strong>20Ross, 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 <strong>the</strong>y represent ’justice’, become positive law (although <strong>the</strong> defenders <strong>of</strong> <strong>the</strong>se principlesin a more or less clear way already consider <strong>the</strong>m to be ’law’), <strong>the</strong>n <strong>the</strong>re is nothing else butlegally non-binding postulates (which are truly just an expression <strong>of</strong> group interests), directedat <strong>the</strong> bodies which have been entrusted with <strong>the</strong> creation <strong>of</strong> law. And not just legislativebodies... but also lower degree legislative bodies which, however, have a decreased possibilityto <strong>the</strong> same extent as <strong>the</strong>ir function bears <strong>the</strong> character <strong>of</strong> law application, but which stillexists, and to <strong>the</strong> same extent as free evaluation; <strong>the</strong>refore, with <strong>the</strong> judicial system andmanagement when it is necessary to choose among several possibilities <strong>of</strong> 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 <strong>the</strong> book Norma iodluka – Karl Šmit i njegovi kritičari, Beograd, 2001, translation by D. Basta, p. 273).
198Petar Te<strong>of</strong>ilović<strong>the</strong> one who brings regulations to continue <strong>the</strong> process <strong>of</strong> determination from ageneral norm to an individual norm. Having in mind that <strong>the</strong> attempt to solve<strong>the</strong> conflict between will and expression is always faced with failure and that allmethods <strong>of</strong> interpretation lead to only one possible and never to <strong>the</strong> only correctresult, <strong>the</strong>n if <strong>the</strong>re is a desire to limit <strong>the</strong> authority <strong>of</strong> courts and thusly <strong>the</strong>political character <strong>of</strong> <strong>the</strong>ir function, <strong>the</strong> maneuver space for free evaluation thatlaws allow for <strong>the</strong>ir application must be as narrow as possible. 22The introduction <strong>of</strong> ideals into law, which also means <strong>the</strong> inosculation <strong>of</strong>law and moral principles, brings us to <strong>the</strong> doorstep <strong>of</strong> metaphysics. However,we do not have in mind <strong>the</strong> metaphysics within <strong>the</strong> idea <strong>of</strong> a ”historical God”,Austin’s notion <strong>of</strong> divine orders which we become aware <strong>of</strong> through revelationor an index <strong>of</strong> usefulness, or <strong>the</strong> idea Borges played with when he ”proved” thatGod exists because only he knows <strong>the</strong> exact number <strong>of</strong> 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 <strong>the</strong> rational oppositionto <strong>the</strong> demand <strong>of</strong> utilitarists to draw a strict line between <strong>the</strong> law as it is and <strong>the</strong>law as it should be. Even those who invested a lot <strong>of</strong> effort into this discussionhave faced <strong>the</strong> conclusion that blurring <strong>the</strong> distinction between law and moralsleads to disputing everything consistent in <strong>the</strong> legal rule and putting completeand clear rules on <strong>the</strong> same level <strong>of</strong> questioning as <strong>the</strong> problems whose solutionsdepend on free evaluation. 23 The result is a confession that <strong>the</strong> attitude <strong>of</strong>utilitarists has both a moral and intellectual value as well as a dim appeal that<strong>the</strong>y should, toge<strong>the</strong>r with utilitarists, acknowledge that laws make <strong>the</strong> law, butthat <strong>the</strong>y 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 <strong>the</strong> 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 <strong>the</strong> dimming <strong>of</strong> this difference by amysterious claim about <strong>the</strong> existence <strong>of</strong> 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 <strong>the</strong> hard core <strong>of</strong> rules with an establishedmeaning (Hart, H. L. A., Positivism and <strong>the</strong> Separation <strong>of</strong> Law and Morals, in Essays in<strong>Jurisprudence</strong> and Philosophy, Oxford, Clarendon Press, 1983, cited in Hart, H. L. A., Oglediiz filoz<strong>of</strong>ije prava, Beograd, 2003, transl. by S. Stepanović Todorović, p. 71, 80).24Ibid., p. 87.
The Contribution <strong>of</strong> <strong>the</strong> US <strong>Jurisprudence</strong> to Freedom... 199Resorting to a concept <strong>of</strong> metaphysics, already quite compromised in law,we relied on Kant’s understanding <strong>of</strong> metaphysics as a ”pure” idea (this time <strong>the</strong>idea <strong>of</strong> law), limited to <strong>the</strong> objects <strong>of</strong> reason and deduced from <strong>the</strong> 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 <strong>the</strong> effect <strong>of</strong> <strong>the</strong> metaphysical idealin <strong>the</strong> history <strong>of</strong> law, especially in <strong>the</strong> 19 th century when, staying beyond <strong>the</strong>reach <strong>of</strong> legislative innovation, people idealized <strong>the</strong> principles <strong>of</strong> general lawguaranteed in bills <strong>of</strong> rights 26 , he considered that such idealized images, uponacquiring a certain level <strong>of</strong> stability in court and pr<strong>of</strong>essional tradition, just likeregulations, become part <strong>of</strong> law, that in <strong>the</strong> most difficult cases, when solvingproblematic situations, <strong>the</strong>y become key guidelines for choosing, shapingand applying law material, and that making up <strong>the</strong>ories used to banish suchphenomena from <strong>the</strong> law is a self-delusion, a futile fight against <strong>the</strong> phenomenon<strong>of</strong> <strong>the</strong> greatest importance for <strong>the</strong> work <strong>of</strong> <strong>the</strong> judicial system. 27If we go one step back from <strong>the</strong> procedure <strong>of</strong> interpretation to <strong>the</strong>manner <strong>of</strong> experiencing and understanding a formed set <strong>of</strong> facts, we shall face acondition that Toynbee marked as <strong>the</strong> immeasurability <strong>of</strong> life and law, <strong>the</strong>immeasurability that almost leads us to give up on trying to reconcile law andjustice, legal norm and demands <strong>of</strong> morals. The effort to make law impersonalcan be fruitful only at a price <strong>of</strong> treating human souls, which are individual andunique, as mass products and standardized inhuman objects. On <strong>the</strong> o<strong>the</strong>rhand, a complete accommodation <strong>of</strong> law to personal circumstances would leadto a regretful distancing from <strong>the</strong> impartiality which is <strong>the</strong> essence <strong>of</strong> humanjustice. 28 A similar aporia is <strong>the</strong> basis <strong>of</strong> Dil<strong>the</strong>y’s skepticism – a conviction thatin understanding <strong>the</strong>re is something irrational that cannot be presented in anylogical patterns 29 , as well as <strong>of</strong> Gadamer’s postulate about <strong>the</strong> essentialconnection <strong>of</strong> juristic hermeneutics and legal dogmatics, a connection where25Kant, I., op. cit., p. 16.26Pound, R., <strong>Jurisprudence</strong>, op. cit., I, p. 357.27Ibid. I, p. 358, Pound, R., Law and Morals, Chapel Hill, 1926.28Toynbee, A., A Study <strong>of</strong> History, London, cited in Tojnbi, A., Proučavanje istorije, Beograd,1971, II, transl. by M. Lukić, p. 71.29Dil<strong>the</strong>y, 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 Te<strong>of</strong>ilovićprimacy belongs to hermeneutics. When Gadamer stresses <strong>the</strong> unattainability <strong>of</strong><strong>the</strong> <strong>the</strong>ory <strong>of</strong> complete legal dogmatics and <strong>the</strong> necessity <strong>of</strong> a juristicintermediation in which to understand and interpret <strong>the</strong> law is to know andacknowledge its valid sense (geltenden Sinn), <strong>the</strong>n in <strong>the</strong> valid sense <strong>the</strong>re isalways much more than <strong>the</strong>re is in <strong>the</strong> law. 30 In any case, Pound also notices<strong>the</strong> failure <strong>of</strong> attempts to remove a degree <strong>of</strong> indeterminacy from <strong>the</strong> normswith a detailed and authoritatively set content, where this indeterminacy ischaracteristic <strong>of</strong> law standards. 31Continuing in Pound’s footsteps, we could conclude that <strong>the</strong> concept <strong>of</strong>law standard refers to that which belongs to an ideal image <strong>of</strong> 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 <strong>of</strong> universality <strong>of</strong> a legal rule,independent <strong>of</strong> whe<strong>the</strong>r is remains in <strong>the</strong> domain <strong>of</strong> <strong>the</strong>ory, if it is a clause in acontract, or if it is part <strong>of</strong> a positive internal or international law. A metaphysicaldimension <strong>of</strong> this concept arises out <strong>of</strong> its formal a priori nature: it is taken inadvance that it encompasses only <strong>the</strong> maxims with <strong>the</strong> potency <strong>of</strong> equity anduniversality. Its a priori nature is based on <strong>the</strong> projection <strong>of</strong> generality, on<strong>the</strong> super-empirical capacity <strong>of</strong> <strong>the</strong> mind to set syn<strong>the</strong>tic demands and on <strong>the</strong>necessity for such demands to be set, even when we are aware that <strong>the</strong>y arebeyond reasonable reach, or just because <strong>the</strong>y are such, for those who do notreconcile with this sort <strong>of</strong> illusion, still beyond reasonable reach. This conceptsimultaneously qualifies legal rule as purposeful and desirable and quantifies acritical measure <strong>of</strong> its acceptable generality. At <strong>the</strong> same time we must not befooled by <strong>the</strong> fact that <strong>the</strong> ideal we strive for is <strong>the</strong> result <strong>of</strong> sublimation <strong>of</strong> legalexperience and knowledge, <strong>the</strong> advancement <strong>of</strong> individual and relational normsinto rules that can be generalized, absolutized and produced into a paradigm.The experience brought into <strong>the</strong> projections <strong>of</strong> law standards comes out <strong>of</strong> <strong>the</strong>dissatisfaction and hope. The metaphysics <strong>of</strong> law standards is an expression <strong>of</strong>our unreconciliation with <strong>the</strong> incompleteness <strong>of</strong> law and unattainability <strong>of</strong> justice.It is concomitantly an eternal quest for a firm ground, for creating general andlasting criteria connected with moral purposes, in <strong>the</strong> 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 <strong>the</strong> Philosophy <strong>of</strong> Law, op. cit. p. 103.
The Contribution <strong>of</strong> <strong>the</strong> US <strong>Jurisprudence</strong> to Freedom... 201ReferencesAristotle, Nicomachean EthicsGadamer, H. G., Gesmammelte Werke, Bd. 1. Hermeneutik I, Tűbingen, 1986.Dil<strong>the</strong>y, 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 <strong>the</strong> Separation <strong>of</strong> Law and Morals, in Essays in<strong>Jurisprudence</strong> and Philosophy, Oxford, Clarendon Press, 1983 (in: Oglediiz filoz<strong>of</strong>ije 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 <strong>the</strong> 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 <strong>of</strong> Legal History, New York, 1923.Pound, R., Introduction to <strong>the</strong> Philosophy <strong>of</strong> Law, New Haven, 1961 (Paund, R.,Uvod u filoz<strong>of</strong>iju prava, Podgorica, 1996. transl. by N. S. Krznarić)Pound, R., <strong>Jurisprudence</strong> (Paund, R., Jurisprudencija, Beograd – Podgorica, 2000,I–III, transl. by Đ. Krstić)Pound, R., Law and Morals, Chapel Hill, 1926.Pound, R., The Spirit <strong>of</strong> <strong>the</strong> Common Law, Boston, 1921.
202Petar Te<strong>of</strong>ilovićPound, R., The Theory <strong>of</strong> 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 <strong>of</strong> History, London (Tojnbi, A., Proučavanje istorije,Beograd, 1971, I–II, transl. by M. Lukić)
The Contribution <strong>of</strong> <strong>the</strong> US <strong>Jurisprudence</strong> to Freedom... 2033 Petar Te<strong>of</strong>ilović, SJDProvincial Ombudsman <strong>of</strong> AP VojvodinaTHE CONTRIBUTION OFTHE US JURISPRUDENCE TO FREEDOMOF EXPRESSION IN THE USA THROUGHTHE DEVELOPMENT OF DEFAMATION LAWI Introductory RemarksFreedom <strong>of</strong> expression in <strong>the</strong> USA has <strong>the</strong> status <strong>of</strong> a fundamental right,one <strong>of</strong> <strong>the</strong> most important ones. Both in <strong>the</strong>ory and in practice it is consideredto be a necessary prerequisite for a full enjoyment <strong>of</strong> <strong>the</strong> majority <strong>of</strong> o<strong>the</strong>rrights, most particularly those belonging to group <strong>of</strong> political rights, and thusenjoys high level <strong>of</strong> legal protection. Legal restrictions <strong>of</strong> this freedom are rare,and are to be submitted to <strong>the</strong> highest level <strong>of</strong> scrutiny by <strong>the</strong> courts in respect<strong>of</strong> <strong>the</strong>ir justifications. Still, <strong>the</strong>re are certain limits beyond which <strong>the</strong> statementsmade are not permitted. One <strong>of</strong> <strong>the</strong>m encompasses <strong>the</strong> cases <strong>of</strong> defamation <strong>of</strong>o<strong>the</strong>rs, which is considered to be an abuse <strong>of</strong> <strong>the</strong> freedom <strong>of</strong> expression.The US defamation law (incorporating both slander/libel and insult) 32 ,which constitutes one <strong>of</strong> <strong>the</strong> rare exemptions from <strong>the</strong> general prohibition <strong>of</strong> <strong>the</strong>violation <strong>of</strong> freedom <strong>of</strong> expression, consists <strong>of</strong> <strong>the</strong> relevant law <strong>of</strong> 50 memberstates and <strong>of</strong> <strong>the</strong> federal state. Besides common law rules and written law32The generic term ”defamation” in common law countries incorporates both slander/libeland insult. The difference between <strong>the</strong> ”slander” (common defamation), and ”libel” (anaggravated form <strong>of</strong> defamation, in <strong>the</strong> continental law usually termed ”defamation committedby <strong>the</strong> media”, or ”public defamation”) is based on <strong>the</strong> 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 <strong>the</strong> 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 Te<strong>of</strong>ilović(constitution, statutes and by-laws), important source <strong>of</strong> law is <strong>the</strong> case-law(judicial decisions) <strong>of</strong> US state and federal courts. Among <strong>the</strong>m, by far <strong>the</strong>most important are <strong>the</strong> decisions <strong>of</strong> <strong>the</strong> US Supreme Court about <strong>the</strong>(un)constitutionality <strong>of</strong> any legal act, regardless <strong>of</strong> whe<strong>the</strong>r it is a state or federalone. Its interpretations <strong>of</strong> <strong>the</strong> constitution presented in those decisions alsoprovide a minimal uniform level <strong>of</strong> protection <strong>of</strong> free speech and press in <strong>the</strong> wholefederation, apart from <strong>the</strong> differences that may exist between particular states.This article contains a brief summary <strong>of</strong> <strong>the</strong> development <strong>of</strong> <strong>the</strong> USdefamation law from <strong>the</strong> establishment <strong>of</strong> <strong>the</strong> USA, with <strong>the</strong> emphasis on <strong>the</strong>contemporary US law in this area since <strong>the</strong> middle <strong>of</strong> <strong>the</strong> 20 th century. Some <strong>of</strong><strong>the</strong> most important decisions <strong>of</strong> <strong>the</strong> US Supreme Court in this area and <strong>the</strong>ireffects are presented in more details, as well as <strong>the</strong> doctrines that make <strong>the</strong> basisfor those decisions, since <strong>the</strong>y have played a key role in streng<strong>the</strong>ning <strong>the</strong>protection <strong>of</strong> freedom <strong>of</strong> expression in <strong>the</strong> USA. Special attention is paid to twokey issues <strong>of</strong> <strong>the</strong> contemporary US law <strong>of</strong> libel – <strong>the</strong> standards <strong>of</strong> liability fordefamation, and <strong>the</strong> definition <strong>of</strong> <strong>the</strong> concept <strong>of</strong> a ”public person”. Conclusiveremarks contain a resume <strong>of</strong> <strong>the</strong> article.II The Development <strong>of</strong> <strong>the</strong> US Defamation LawOne can clearly discern two main periods in <strong>the</strong> development <strong>of</strong> <strong>the</strong> USdefamation law so far. The first period, starting with <strong>the</strong> establishment <strong>of</strong> firstEnglish colonies in North America and ending in <strong>the</strong> 1960s, is characterized by<strong>the</strong> domination <strong>of</strong> rules inherited from <strong>the</strong> English common law. During thattime defamation was primarily a matter <strong>of</strong> civil law. 33 The emphasis in defamationcases was on <strong>the</strong> protection <strong>of</strong> plaintiff’s reputation, and <strong>the</strong> legal rules favoured<strong>the</strong> 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 <strong>the</strong> practice <strong>of</strong> <strong>the</strong> English Star Chamber during <strong>the</strong> 17 th century. Still, with<strong>the</strong> development <strong>of</strong> <strong>the</strong> doctrine <strong>of</strong> defamation as a tort it gradually became primarily amatter <strong>of</strong> civil law. The criminal defamation is almost extinct today in common lawcountries. On <strong>the</strong> o<strong>the</strong>r hand, in <strong>the</strong> continental law countries this issue has been treated forcenturies as a matter <strong>of</strong> criminal law whereas its civil law aspects were lesser developed.However, in <strong>the</strong> last few decades <strong>the</strong> tendency to deal with defamation through civil damagesinstead <strong>of</strong> criminal sanctions may be observed in continental law countries, too.
The Contribution <strong>of</strong> <strong>the</strong> US <strong>Jurisprudence</strong> to Freedom... 205The second period starts in 1960s and is still going on. At that time <strong>the</strong>Supreme Court, partly because <strong>of</strong> <strong>the</strong> strong impact <strong>of</strong> <strong>the</strong> human rightsmovement in <strong>the</strong> USA, adopts an ”activist” approach in its interpretations <strong>of</strong><strong>the</strong> First Amendment to <strong>the</strong> US Constitution which, among o<strong>the</strong>rs, guarantees<strong>the</strong> freedom <strong>of</strong> speech and press (hereafter: freedom <strong>of</strong> expression). Namely, itstarts to base its decisions in this area on a much more liberal doctrine <strong>of</strong> freedom<strong>of</strong> expression than before, shifting <strong>the</strong> stress from <strong>the</strong> protection <strong>of</strong> plaintiff’sreputation to <strong>the</strong> protection <strong>of</strong> freedom <strong>of</strong> expression, and gradually developingan original model <strong>of</strong> legal regulation <strong>of</strong> defamation. The relevant US SupremeCourt’s decisions on unconstitutionality <strong>of</strong> restrictions <strong>of</strong> <strong>the</strong> freedom <strong>of</strong>expression, that relate to <strong>the</strong> regime <strong>of</strong> defamation as well, have introducedsignificant, sometimes even radical novelties into <strong>the</strong> previous regime in thisarea. Defamation law increasingly becomes a matter <strong>of</strong> constitutional law, whichled to <strong>the</strong> development <strong>of</strong> <strong>the</strong> so called ”First Amendment Law”. Although stillgrounded in common law rules, <strong>the</strong> contemporary US defamation law departsnotably from its roots, most importantly because <strong>of</strong> <strong>the</strong> doctrines developed in<strong>the</strong> practice <strong>of</strong> US courts.1 First period: From <strong>the</strong> Colonial Times Until 1960s– Prevalence <strong>of</strong> Common Law RulesLegal regulation <strong>of</strong> defamation in <strong>the</strong> USA has its roots in <strong>the</strong> Englishcommon law. Some authors point out that <strong>the</strong>re are few areas in which <strong>the</strong>connection between <strong>the</strong> two jurisprudences is more direct than in <strong>the</strong> area <strong>of</strong>libel, adding that accordingly some <strong>of</strong> <strong>the</strong> least desirable characteristics <strong>of</strong> Englishlibel law have been imported into <strong>the</strong> USA. 34 On <strong>the</strong> o<strong>the</strong>r hand, common law34See Richard Labunski, Libel And The First Amendment, 29 (New Brunswik and London,1989). Among <strong>the</strong>m Labunski mentions <strong>the</strong> influence <strong>of</strong> English doctrine that led to <strong>the</strong>jailing and fining <strong>of</strong> publishers, enabled interpretation <strong>of</strong> <strong>the</strong> First Amendment as allowingsuch practices, and inspired <strong>the</strong> enactment <strong>of</strong> <strong>the</strong> notorious but short-lived Sedition Act <strong>of</strong>1798. Under that Act, any ”writing, printing, speech or publishing <strong>of</strong> a false, scandalous ormalicious information against <strong>the</strong> Government <strong>of</strong> <strong>the</strong> USA, its Congress or ei<strong>the</strong>r <strong>of</strong> itsHouses, or <strong>of</strong> <strong>the</strong> President <strong>of</strong> <strong>the</strong> USA, with <strong>the</strong> intention to defame <strong>the</strong>m, or to expose<strong>the</strong>m to disregard or contempt <strong>of</strong> <strong>the</strong> <strong>American</strong> people...” was a crime punishable with afine <strong>of</strong> up to $ 5.000 and a prison <strong>of</strong> up to 5 years. – see I. Stat. 596 (1798). The formulationwas vague enough to encompass almost every critic <strong>of</strong> <strong>the</strong> government. Before <strong>the</strong> time <strong>of</strong>
206Petar Te<strong>of</strong>ilovićrules <strong>of</strong> libel have not been enforced in colonies on <strong>the</strong> ”new continent” aseagerly as in <strong>the</strong> UK. Very early some <strong>of</strong> those rules reflecting <strong>the</strong> medievalunderstanding <strong>of</strong> individual’s reputation and its protection and severely limitingfreedom <strong>of</strong> expression, had been alleviated and departed from.Although Levy clearly states that ”<strong>the</strong> image <strong>of</strong> colonial America as a societyin which freedom <strong>of</strong> expression was cherished is a hallucination <strong>of</strong> sentimentthat ignores history” 35 , <strong>the</strong> fact is that <strong>the</strong> colonial courts were reluctant toapply certain inherited rules <strong>of</strong> English libel law as it was even during <strong>the</strong>British imperial rule. While <strong>the</strong>re may have been hundreds <strong>of</strong> trials for seditiouslibel in England during 17 th and 18 th centuries, <strong>the</strong>re were probably not morethan half a dozen <strong>of</strong> such trials in its colonies in America before <strong>the</strong>Revolution. 36 The famous Zenger case was <strong>the</strong> last <strong>of</strong> its kind decided under <strong>the</strong>royal judges, and it has been observed that this case put an end to Court trialsfor seditious libel as a serious threat to printers in <strong>the</strong> <strong>American</strong> colonies. 37<strong>the</strong> Act’s validity expired in 1801, <strong>the</strong>re were 14 cases decided under <strong>the</strong> Act, and all <strong>of</strong> <strong>the</strong>mwere decided against <strong>the</strong> defendants. Its validity had not been extended because <strong>of</strong> <strong>the</strong>massive claim <strong>of</strong> its unconstitutionality by experts and by <strong>the</strong> public.35Leonard W. Levy, Emergence <strong>of</strong> a Free Press, 16 (Oxford, 1985). See also Zechariah Chafee Jr.,Free Speech in <strong>the</strong> United States, 16 (Cambridge, 1941); cf. Sch<strong>of</strong>ield, Essays on ConstitutionalLaw and Equity, 521-522 (1922).36Levy, Id. at 17-18.37Harold L. Nelson, Seditious Libel in Colonial America, 3 <strong>American</strong> Journal <strong>of</strong> Legal History,164, 160-172 (1959). The Zenger case, decided in 1735, has been praised both as a casewhere <strong>the</strong> colonial courts made a big departure from particular rules <strong>of</strong> English libel law,and as <strong>the</strong> first important victory for freedom <strong>of</strong> <strong>the</strong> press in <strong>the</strong> English colonies <strong>of</strong> NorthAmerica. John Peter Zenger was a journalist and a publisher <strong>of</strong> <strong>the</strong> New York WeeklyJournal, a paper that in a year from its establishment published a number <strong>of</strong> articles critical<strong>of</strong> <strong>the</strong> policies <strong>of</strong> Mr Cosby, <strong>the</strong> royal governor <strong>of</strong> <strong>the</strong> colony <strong>of</strong> New York. In November1734 he was arrested and 10 months later tried for seditious libel, which in common lawwas primarily aimed at protecting <strong>the</strong> government representatives, against <strong>the</strong> governor.Under <strong>the</strong> rules <strong>of</strong> common law, although many <strong>of</strong> <strong>the</strong> articles were contributed by o<strong>the</strong>rjournalists Zenger was legally responsible for <strong>the</strong>ir content as publisher; at that time truthwas not a defence, since <strong>the</strong> mere fact <strong>of</strong> publication was sufficient to convict <strong>the</strong> defendant<strong>of</strong> libel. However, as for <strong>the</strong> merits <strong>of</strong> <strong>the</strong> case his defence attorney A. Hamilton ignored <strong>the</strong>existing rules and argued that articles printed in Zenger's weekly were true and <strong>the</strong>reforecould not be considered libellous. As for <strong>the</strong> procedural rules, he ignored <strong>the</strong> judge'sreprimand and, despite existing judicial procedures, argued that <strong>the</strong> jury, not <strong>the</strong> judges,should determine <strong>the</strong> truth <strong>of</strong> <strong>the</strong> articles; thus he asked <strong>the</strong> jury to proclaim his client notguilty for seditious libel. Although <strong>the</strong> judges ruled Hamilton's arguments on this issue out
The Contribution <strong>of</strong> <strong>the</strong> US <strong>Jurisprudence</strong> to Freedom... 207During <strong>the</strong> North-<strong>American</strong> colonies’ war <strong>of</strong> independence from UK,eleven colonies adopted revolutionary constitutions; nine <strong>of</strong> <strong>the</strong>m included bills<strong>of</strong> rights with sections guaranteeing freedom <strong>of</strong> speech and press. 38 The federalconstitution <strong>of</strong> <strong>the</strong> USA was adopted in 1787, and <strong>the</strong> first ten amendments to<strong>the</strong> US Constitution containing <strong>the</strong> list <strong>of</strong> rights and liberties guaranteed by <strong>the</strong>Constitution were ratified in 1791 (until today 27 Amendments were added to<strong>the</strong> Constitution altoge<strong>the</strong>r). 39 The relevant part <strong>of</strong> <strong>the</strong> First Amendment,dealing among o<strong>the</strong>r with freedom <strong>of</strong> speech and press, reads:”Congress shall make no law... abridging <strong>the</strong> freedom <strong>of</strong> speech, or <strong>of</strong> <strong>the</strong> press;...”The First Amendment gradually became a major factor in <strong>the</strong> development<strong>of</strong> <strong>the</strong> US defamation law. Besides, some o<strong>the</strong>r amendments have also affected<strong>the</strong> regulation <strong>of</strong> libel in <strong>the</strong> USA, mostly in <strong>the</strong> 20 th century. The most importantamong <strong>the</strong>m is <strong>the</strong> Fourteenth Amendment ratified in 1868, which was laterused by <strong>the</strong> US Supreme Court as basis for <strong>the</strong> extension <strong>of</strong> protection grantedby <strong>the</strong> First Amendment from <strong>the</strong> exclusively federal to <strong>the</strong> state level. For along time after <strong>the</strong> First Amendment was enacted, it did not significantly affect<strong>the</strong> interpretation <strong>of</strong> <strong>the</strong> scope and contents <strong>of</strong> <strong>the</strong> freedom <strong>of</strong> speech and press,including <strong>the</strong> status <strong>of</strong> libel in <strong>the</strong> US law. Namely, for almost a century later <strong>the</strong>reach <strong>of</strong> <strong>the</strong> First Amendment (and <strong>the</strong> entire Bill <strong>of</strong> Rights) has been construedby <strong>the</strong> Supreme Court (<strong>of</strong>ten referring to <strong>the</strong> Tenth Amendment 40 ) as beinglimited to <strong>the</strong> federal government, not affecting state or local governments.Therefore, even though all through <strong>the</strong> history <strong>of</strong> <strong>the</strong> USA many disputes<strong>of</strong> order, <strong>the</strong> jury acquitted Zenger on <strong>the</strong> 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 <strong>the</strong> USA, and a pro<strong>of</strong> <strong>of</strong> truth is an irrefutabledefence in defamation cases.38See: Louis Fisher, ”Constitutional Rights: Civil Rights and Civil Liberties, vol. 2 <strong>of</strong> <strong>American</strong>Constitutional Law”, 618 (McGraw-Hill Publishing Company, 1990). See also: Rutland, TheBirth <strong>of</strong> <strong>the</strong> Bill <strong>of</strong> Rights, 1776-1794, 78 (1955).39The US Constitution <strong>of</strong> 1787 initially did not incorporate provisions enumerating humanrights and, consequently, it contained no explicit guarantees <strong>of</strong> <strong>the</strong> freedom <strong>of</strong> speech andpress. However, <strong>the</strong> political and public pressure towards incorporation <strong>of</strong> Bill <strong>of</strong> Rights into<strong>the</strong> Constitution was so intense that <strong>the</strong> first ten amendments were ratified as soon as in 1791.40The text <strong>of</strong> <strong>the</strong> Tenth Amendment states:”The powers not delegated to <strong>the</strong> United States by <strong>the</strong> Constitution, nor prohibited by itto <strong>the</strong> States, are reserved to <strong>the</strong> States respectively, or to <strong>the</strong> people.”
208Petar Te<strong>of</strong>ilovićemerged over <strong>the</strong> issues related to speech and press freedoms, <strong>the</strong>y were rarelydecided by <strong>the</strong> Supreme Court and even those sporadic decisions did not makewhat is today referred to as <strong>the</strong> First Amendment Law. The states were free toapply different doctrines and practices, and formulate standards that indirectlyrestricted publishing because <strong>of</strong> <strong>the</strong> risk that <strong>the</strong> published information couldbe held libellous. The common law <strong>of</strong> libel grew in complexity, rigidity andinconsistency.A major shift in this respect was made possible only after <strong>the</strong> FourteenthAmendment to <strong>the</strong> US Constitution had been passed in 1868. 41 However, it tooka long time before this amendment effectively affected <strong>the</strong> Supreme Court’sunderstanding <strong>of</strong> <strong>the</strong> First Amendment, it served as a firm basis on which <strong>the</strong>Court radically changed <strong>the</strong> whole previous constitutional setting <strong>of</strong> <strong>the</strong>relationship between federal and state powers. Approximately by <strong>the</strong> time <strong>of</strong> <strong>the</strong>World War I, through its decisions made in application <strong>of</strong> <strong>the</strong> FourteenthAmendment to various issues, <strong>the</strong> Supreme Court came up with <strong>the</strong> construalthat this Amendment extended <strong>the</strong> force <strong>of</strong> <strong>the</strong> federal Bill <strong>of</strong> Rights to states aswell. Consequently, <strong>the</strong> First Amendment came to be understood by <strong>the</strong> Courtas protecting equally against state and local as against <strong>the</strong> federal government.In <strong>the</strong> next fifty years, <strong>the</strong> Court had decided many cases involving FirstAmendment freedoms. Most <strong>of</strong> <strong>the</strong>m dealt with <strong>the</strong> protection <strong>of</strong> free speech,while only a few with <strong>the</strong> freedom <strong>of</strong> <strong>the</strong> press. However, <strong>the</strong> Supreme Courtdid not think <strong>the</strong>n that <strong>the</strong> First Amendment could in any way restrict <strong>the</strong> right<strong>of</strong> states to prohibit libellous statements, which have been routinely referred toas a category <strong>of</strong> speech that enjoys no constitutional protection. 42 In mid 20 thcentury such attitude was still prevalent in <strong>the</strong> practice <strong>of</strong> <strong>the</strong> Supreme Court.The Chaplinsky case 43 involved both mentioned aspects: <strong>the</strong> Court accepted <strong>the</strong>applicant’s referral to <strong>the</strong> Fourteenth Amendment as relevant for <strong>the</strong> assessment41The key provision in this sense is contained in Section 1 <strong>of</strong> <strong>the</strong> 14 th Amendment:”All persons born or naturalized in <strong>the</strong> United States, and subject to <strong>the</strong> jurisdiction<strong>the</strong>re<strong>of</strong>, are citizens <strong>of</strong> <strong>the</strong> United States and <strong>of</strong> <strong>the</strong> State wherein <strong>the</strong>y reside. No State shallmake or enforce any law which shall abridge <strong>the</strong> privileges or immunities <strong>of</strong> citizens <strong>of</strong> <strong>the</strong>United States; nor shall any State deprive any person <strong>of</strong> life, liberty, or property, without dueprocess <strong>of</strong> law; nor deny to any person within its jurisdiction <strong>the</strong> equal protection <strong>of</strong> <strong>the</strong> laws.”42”[...] The publisher <strong>of</strong> a newspaper has no special immunity from <strong>the</strong> application <strong>of</strong>general laws. He has no special privilege to invade <strong>the</strong> rights and liberties <strong>of</strong> o<strong>the</strong>rs. 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 <strong>of</strong> <strong>the</strong> US <strong>Jurisprudence</strong> to Freedom... 209<strong>of</strong> <strong>the</strong> case 44 , but <strong>the</strong>n blatantly placed libellous statements among those that donot deserve any constitutional protection. 45O<strong>the</strong>r amendments, taken individually, have not influenced <strong>the</strong> Court’sunderstanding <strong>of</strong> <strong>the</strong> scope and contents <strong>of</strong> <strong>the</strong> freedom <strong>of</strong> expression. Still, in mid1960s <strong>the</strong> Court chose an atypical approach by connecting <strong>the</strong> formulations <strong>of</strong>several amendments, and factually created <strong>the</strong> right to privacy as a constitutionalone although it is not explicitly guaranteed by <strong>the</strong> Constitution. 46 Althoughsome authors fiercely criticized such manner <strong>of</strong> creating constitutional rights, 47a new limitation to freedom <strong>of</strong> expression – <strong>the</strong> right <strong>of</strong> 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 <strong>the</strong> regime <strong>of</strong> strict liability viewed by manyauthors and judges as too restrictive <strong>of</strong> <strong>the</strong> freedom <strong>of</strong> expression. Attemptingto set a balance in cases where <strong>the</strong> right to have one’s reputation protectedconflicts with <strong>the</strong> right to free expression, between <strong>the</strong> end <strong>of</strong> <strong>the</strong> World War Iand 1960’s <strong>the</strong> Supreme Court has developed several doctrines on <strong>the</strong> protectionthat <strong>the</strong> First Amendment provides to freedom <strong>of</strong> expression. One such doctrinewas that <strong>of</strong> clear and present danger, first formulated by Justice Holmes in <strong>the</strong>Schenck case: ”The question [...] is whe<strong>the</strong>r <strong>the</strong> words used are used in suchcircumstances and are <strong>of</strong> such a nature as to create a clear and present danger[...] that Congress has a right to prevent. It is a question <strong>of</strong> proximity anddegree”. 48 This test was later reformulated by Judge Learned Hand in Dennis:”[Courts] must ask whe<strong>the</strong>r <strong>the</strong> gravity <strong>of</strong> <strong>the</strong> ”evil” [...] justifies such invasion44”It is now clear that Freedom <strong>of</strong> speech and freedom <strong>of</strong> <strong>the</strong> press, [...] protected by <strong>the</strong>First Amendment from infringement by Congress, are among <strong>the</strong> fundamental personalrights and liberties which are protected by <strong>the</strong> Fourteenth Amendment from invasion bystate action.” Id.45”There are certain well defined and narrowly limited classes <strong>of</strong> speech, <strong>the</strong> prevention andpunishment <strong>of</strong> which have never been thought to raise any Constitutional problem. Theseinclude [...] <strong>the</strong> libellous, and <strong>the</strong> insulting or "fighting" words -- those which, by <strong>the</strong>ir veryutterance, inflict injury or tend to incite an immediate breach <strong>of</strong> <strong>the</strong> peace. [S]uch utterancesare no essential part <strong>of</strong> any exposition <strong>of</strong> ideas, and are <strong>of</strong> such slight social value as a step totruth that any benefit that may be derived from <strong>the</strong>m is clearly outweighed by <strong>the</strong> 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. Ge<strong>of</strong>frey 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 Te<strong>of</strong>ilović<strong>of</strong> free speech as is necessary to avoid <strong>the</strong> danger.” 49 The doctrine <strong>of</strong> clear andpresent danger has been used mainly in cases where defendants were held incriminal contempt for publications <strong>of</strong> criticisms against courts and judges, andis still used in various circumstances, but its use as a test in free speech caseswas mostly abandoned since <strong>the</strong> Supreme Court’s judgment in Brandenburg v.Ohio 50 case.One <strong>of</strong> <strong>the</strong> most influential doctrines in interpreting <strong>the</strong> First Amendmentwas that <strong>of</strong> balancing that emerged in <strong>the</strong> mid 20 th century. According to thistest, if different constitutionally protected interests, <strong>the</strong> private and societalinterest in protecting <strong>the</strong> freedom <strong>of</strong> speech on one side, and <strong>the</strong> societal interestin restricting <strong>the</strong> speech through regulation on <strong>the</strong> o<strong>the</strong>r, are in conflict, <strong>the</strong>Court is to balance <strong>the</strong>m against each o<strong>the</strong>r in <strong>the</strong> context <strong>of</strong> a particular case inorder to decide which one <strong>of</strong> <strong>the</strong>m merits protection (while <strong>the</strong> o<strong>the</strong>r remainsoutside such protection <strong>of</strong> <strong>the</strong> First Amendment). Still, regardless <strong>of</strong> its apparentpracticability, this method has been strongly criticized by some analysts. Emerson,who seemed to prefer <strong>the</strong> ”clear and present danger test” as more protective <strong>of</strong><strong>the</strong> freedom <strong>of</strong> expression, saw <strong>the</strong> principal problem with balancing in that itwas an ”ad hoc” test that ”frames <strong>the</strong> issues in a broad and undefined way” andleads to ”effects so unstructured that it can hardly be described as a rule <strong>of</strong> 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 <strong>the</strong> legislature may restrict expression whenever it finds it reasonable to doso”. 51 In ano<strong>the</strong>r text Emerson objected to vagueness <strong>of</strong> <strong>the</strong> balancing test which,in attempt to weigh factors that are not comparable, puts <strong>the</strong> Court in <strong>the</strong>position <strong>of</strong> opposing <strong>the</strong> legislature on <strong>the</strong> legislature’s own ground. 52Following a similar path Aleinik<strong>of</strong>f observed that balancing test posed adifficult problem to constitutional jurisprudence as it seemed to be ”<strong>the</strong> activist,policy-oriented approach to constitutional law” entailed by <strong>the</strong> jeopardy that<strong>the</strong> outcome is based on <strong>the</strong> judge’s personal preference. However, he believedthat this peril can be avoided if <strong>the</strong> balancing process is externalised, so thatjudges seek for relevant societal interests and compare <strong>the</strong>m 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 <strong>of</strong> <strong>the</strong> First Amendment, 72 Yale LawJournal, 877 (1963).52Thomas I. Emerson, The System <strong>of</strong> Freedom <strong>of</strong> Expression, 274-275 (1970).
The Contribution <strong>of</strong> <strong>the</strong> US <strong>Jurisprudence</strong> to Freedom... 211weight that history, tradition and current society attributed to <strong>the</strong>m, so that <strong>the</strong>judges’ personal views do not affect <strong>the</strong> result. 53Through <strong>the</strong> long lasting public debate with some <strong>of</strong> <strong>the</strong> U.S. SupremeCourt judges, Alexander Meiklejohn developed a <strong>the</strong>ory about two kinds <strong>of</strong>freedom <strong>of</strong> speech: a freedom <strong>of</strong> public, and freedom <strong>of</strong> non-public speech. Theformer is related to public matters, which <strong>the</strong> voters must know in order to beable to govern <strong>the</strong>mselves; it is an absolute freedom, and it is protected by <strong>the</strong>First Amendment. The latter is related to speech that is not necessary for <strong>the</strong>people to govern <strong>the</strong>mselves; it is not protected by <strong>the</strong> First Amendment, andmay enjoy only <strong>the</strong> Fifth Amendment's qualified protection that it will not berestricted without due process <strong>of</strong> law. According to Meiklejohn, libellous speechmay belong to ei<strong>the</strong>r category: if <strong>the</strong> libel is private, it has no relation to governingand is thus subject to legislative control; however, if <strong>the</strong> same kind <strong>of</strong> speechcriticises one’s unfitness for governmental <strong>of</strong>fice, such as political or seditiouslibel, it is protected by <strong>the</strong> First Amendment and is not subject to legislativecontrol. Meiklejohn deemed that <strong>the</strong> Supreme Court's interpretations actuallyincorporated both into <strong>the</strong> Fourteenth Amendment’s ”due process” clause,which resulted, on one hand, in <strong>the</strong> loss <strong>of</strong> <strong>the</strong> First Amendments' absolutenessin protecting public speech, and, on <strong>the</strong> o<strong>the</strong>r, in that some non-public speechobtained a constitutionally protected status under <strong>the</strong> umbrella <strong>of</strong> <strong>the</strong> FirstAmendment. 54 The main objection to Meiklejohn’s concept is that it rests on<strong>the</strong> extremely imprecise boundary between public and private speech. 55 O<strong>the</strong>rsnoted that he would extend <strong>the</strong> protection <strong>of</strong> <strong>the</strong> First Amendment beyondexplicitly political speech to all valuable types <strong>of</strong> speech, which in effect wouldcause confusion between constitutionality <strong>of</strong> laws and <strong>the</strong>ir wisdom. 56 Somecommentators deemed that this <strong>the</strong>ory fails to grasp <strong>the</strong> important role thatcertain private individuals assume in public affairs; in this respect <strong>the</strong> Meiklejohn’s53Alexander T. Aleinik<strong>of</strong>f, Constitutional Law in <strong>the</strong> Age <strong>of</strong> 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 <strong>the</strong> 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 Te<strong>of</strong>ilović<strong>the</strong>ory would provide inadequate protection to those (particularly to media)who publish statements about individuals who are not public <strong>of</strong>ficials or publicfigures, but still strongly affect <strong>the</strong> public life. 572 Second Period: The Emergence and Development<strong>of</strong> <strong>the</strong> First Amendment LawIn mid 1960's <strong>the</strong> Supreme Court took a ra<strong>the</strong>r activist stand in applying<strong>the</strong> First Amendment to issues related to libel, and started to apply a muchmore liberal doctrine <strong>of</strong> freedom <strong>of</strong> expression in this area. In its decisions on<strong>the</strong> constitutionality <strong>of</strong> its limitations, including those related to defamation, itintroduced significant, sometimes even radical novelties, developing its ownmodel <strong>of</strong> regulation <strong>of</strong> defamation. Although still firmly rooted in common lawrules, <strong>the</strong> US law in this area today departs importantly from its roots, mostly asa consequence <strong>of</strong> <strong>the</strong> practice <strong>of</strong> <strong>American</strong> courts.The decision in <strong>the</strong> already mentioned New York Times 58 case in 1964introduced a new approach to this area, and it is considered to be <strong>the</strong> startingpoint <strong>of</strong> <strong>the</strong> second period in <strong>the</strong> development <strong>of</strong> <strong>the</strong> US libel law. Although NewYork Times was limited to one particular category <strong>of</strong> plaintiffs, namely to ”public<strong>of</strong>ficials”, its effects and magnitude go far beyond that, apparently narrow, novelty.Its repercussions affect numerous aspects <strong>of</strong> <strong>the</strong> modern US law <strong>of</strong> defamation,and it is one <strong>of</strong> its fundaments; thus, its importance can hardly be overstated. Theperiod <strong>of</strong> modern US law <strong>of</strong> libel is thus characterised by its constitutionalisationand gradual development <strong>of</strong> <strong>the</strong> so-called First Amendment law. Previouslymainly a local matter governed by common law and state laws, after New YorkTimes libel is assessed in <strong>the</strong> light <strong>of</strong> its relation to freedom <strong>of</strong> speech and pressunder <strong>the</strong> First Amendment. Since <strong>the</strong>n, <strong>the</strong> Supreme Court has decided a number<strong>of</strong> cases on constitutionality <strong>of</strong> limitations <strong>of</strong> freedom <strong>of</strong> expression, includingissues related to defamation, applying <strong>the</strong> new approach. With <strong>the</strong> introduction<strong>of</strong> new rules that counter, or at least modify, <strong>the</strong> common law ones, commonlaw <strong>of</strong> libel gradually lost significance it had for long time. These decisions havehad <strong>the</strong> decisive role in re-defining <strong>the</strong> US libel law in <strong>the</strong> last four decades,reflecting a new, much more liberal understanding <strong>of</strong> freedom <strong>of</strong> expression.57See Labunski, supra at 45.58New York Times Co. v. Sullivan, supra.
The Contribution <strong>of</strong> <strong>the</strong> US <strong>Jurisprudence</strong> to Freedom... 213Relevant decisions <strong>of</strong> <strong>the</strong> Supreme Court mostly aimed at allowing muchwider space to expression by giving it stronger protection than it had ever enjoyedunder <strong>the</strong> 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 o<strong>the</strong>r defendant, from libelactions for defamatory statements <strong>of</strong> public <strong>of</strong>ficials in performing <strong>the</strong>ir <strong>of</strong>ficialduty. Some o<strong>the</strong>r subsequent decisions extended <strong>the</strong> protection <strong>of</strong> <strong>the</strong> FirstAmendment for opinions (as opposed to facts). The 1974 Supreme Court’sdecision in Gertz 59 raised <strong>the</strong> protection <strong>of</strong> opinions to <strong>the</strong> constitutional level byproclaiming that <strong>the</strong>re is no such thing as a false idea under <strong>the</strong> First Amendment,and by requiring <strong>the</strong> pro<strong>of</strong> <strong>of</strong> fault on behalf <strong>of</strong> media defendants when <strong>the</strong>communication relates to a matter <strong>of</strong> public concern. Gertz also established <strong>the</strong>requirement that <strong>the</strong> plaintiff proves fault on behalf <strong>of</strong> media defendants when <strong>the</strong>communication is <strong>of</strong> public concern. 60 Under <strong>the</strong> First Amendment, moresignificance has been given by <strong>the</strong> courts to <strong>the</strong> criteria for distinguishing betweenopinions and facts, and for identifying ”pure” opinions. This requisite alleviatedsome common problems in cases where <strong>the</strong> identity <strong>of</strong> <strong>the</strong> plaintiff and <strong>the</strong>character in an impugned statement was wholly accidental, or where <strong>the</strong> fictitiouscharacter was based on <strong>the</strong> life and/or character <strong>of</strong> a real person. While previously<strong>the</strong> defendant’s fault was presumed, <strong>the</strong> plaintiff now has to invest much moreeffort to win such a case since he has to prove that fault.Through an overview <strong>of</strong> most important decisions that reframed andimproved <strong>the</strong> US defamation law, in <strong>the</strong> continuation <strong>of</strong> this article specialattention is paid to issues that, frequently raising controversies, most significantlyaffected <strong>the</strong> development <strong>of</strong> this area. The first one <strong>of</strong> <strong>the</strong>m is related to a new59Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).60Such status <strong>of</strong> opinions was revisited in Milkovich v. Lorain Journal, 497 U.S. 1 (1990),where <strong>the</strong> Court held that <strong>the</strong> reference to ”opinion” in dictum <strong>of</strong> Gertz was not intended tocreate an all/inclusive protection from actions in defamation for opinions, and referred to anumber <strong>of</strong> o<strong>the</strong>r decisions that safeguard <strong>the</strong> freedom <strong>of</strong> expression even without <strong>the</strong>mentioned interpretation <strong>of</strong> Gertz. – See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S.767 (1986): ”...where a media defendant is involved, a statement on matters <strong>of</strong> 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 <strong>the</strong> public figure involved”.
214Petar Te<strong>of</strong>ilovićstandard requiring <strong>the</strong> plaintiff to prove <strong>the</strong> defendant’s „actual malice” inorder to win a case, while <strong>the</strong> o<strong>the</strong>r relates to <strong>the</strong> definition <strong>of</strong> plaintiffs who areto meet that requirement. Although those decisions affected <strong>the</strong> relevant statelaw as well, it is still very important in defamation trials, and a defendant canfrequently win a case under <strong>the</strong> state rules without resorting to <strong>the</strong> FirstAmendment law. 612.1 Actual Malice RequirementIn New York Times Co. v. Sullivan 62 <strong>the</strong> conflict was between <strong>the</strong> public<strong>of</strong>ficial’s interest to have his reputation protected and <strong>the</strong> interest <strong>of</strong> <strong>the</strong> citizens toenjoy <strong>the</strong> right to free expression. There <strong>the</strong> Supreme Court introduced a newstandard according to which in such cases it is not sufficient that <strong>the</strong> plaintiffproves <strong>the</strong> defamation, but he must also prove that <strong>the</strong> defamatory statement wasmade with actual malice. In o<strong>the</strong>r words, not all defamations <strong>of</strong> public <strong>of</strong>ficials arepunishable, but only those made with an ill intention to damage <strong>the</strong>ir reputation.Stating that <strong>the</strong> First Amendment guarantees <strong>the</strong> right <strong>of</strong> <strong>the</strong> citizen to criticize hisgovernment, <strong>the</strong> Court declared that where an elected public <strong>of</strong>ficial sues a citizenfor defamation contained in such critic, <strong>the</strong> First Amendment modifies <strong>the</strong>operation <strong>of</strong> <strong>the</strong> state law <strong>of</strong> libel. Public <strong>of</strong>ficials enjoy immunity to freely perform<strong>the</strong>ir duties, so <strong>the</strong>ir 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 <strong>of</strong> public concern that ”may well include vehement, caustic,unpleasantly sharp attacks on government and public <strong>of</strong>ficials”. The Court did notcompletely deny <strong>the</strong> public <strong>of</strong>ficials’ reputational interest (or, from <strong>the</strong> defendant’spoint <strong>of</strong> view, it did not grant an absolute immunity to criticism <strong>of</strong> public <strong>of</strong>ficials),but instead created a qualified privilege for defendants by requiring <strong>the</strong> public<strong>of</strong>ficial 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 <strong>of</strong> circumstances <strong>of</strong> <strong>the</strong> case, <strong>the</strong> decision itself, and a criticalassessment <strong>of</strong> its consequences, see Anthony Lewis, Make No Law: The Sullivan Case and<strong>the</strong> First Amendment (New York, 1991).63In <strong>the</strong> holding <strong>of</strong> <strong>the</strong> decision, <strong>the</strong> Court explicitly stated that ”...Factual error, contentdefamatory <strong>of</strong> <strong>of</strong>ficial reputation, or both, are insufficient to warrant an award <strong>of</strong> damagesfor false statements unless ’actual malice’ [...] is alleged and proved.” - Id., 283; and also:”...presumption <strong>of</strong> malice is inconsistent with federal constitutional requirements.” - Id., 284.
The Contribution <strong>of</strong> <strong>the</strong> US <strong>Jurisprudence</strong> to Freedom... 215that <strong>the</strong> statement was false or made with reckless disregard <strong>of</strong> whe<strong>the</strong>r it was falseor not. 64 The use <strong>of</strong> <strong>the</strong> actual malice test actually removes constitutionalprotection for defamatory expression that meets <strong>the</strong> actual malice standard, thusseparating what is protected speech from what is not.As mentioned earlier, New York Times has produced multiple effects in<strong>the</strong> area <strong>of</strong> defamation law. While many, particularly <strong>the</strong> media, praised thisverdict as a revolutionary decision which provided higher level <strong>of</strong> protection <strong>of</strong>freedom <strong>of</strong> speech by introducing ”order and cohesion to an area <strong>of</strong> libeljurisprudence that had long suffered from dissonance” 65 , in time some morecritical assessments have appeared in <strong>the</strong> evaluation <strong>of</strong> its contributions,particularly because it established a standard which required <strong>the</strong> plaintiff toprove <strong>the</strong> intentions and/or motivation <strong>of</strong> <strong>the</strong> publisher. 66 Still, <strong>the</strong>re are no doubtsthat it introduced some new issues previously irrelevant in libel litigation, whichin return affected <strong>the</strong> understanding and treatment <strong>of</strong> many o<strong>the</strong>r ”traditional”matters. The initial scope <strong>of</strong> <strong>the</strong> actual malice test as set in this decision waslimited to cases where a public <strong>of</strong>ficial has been defamed in performing his <strong>of</strong>ficialduties. However, <strong>the</strong> application <strong>of</strong> <strong>the</strong> test was very soon expanded to o<strong>the</strong>rcategories <strong>of</strong> plaintiffs as well. The search for a clear definition <strong>of</strong> <strong>the</strong> circle <strong>of</strong>plaintiffs who must prove actual malice on behalf <strong>of</strong> <strong>the</strong> defendant, and fur<strong>the</strong>rrefinements <strong>of</strong> <strong>the</strong> actual malice test soon became key issues in libel cases dealtwith by <strong>the</strong> Supreme Court. Campbell noted that <strong>the</strong>se attempts have continuedunder two concepts: one focused on <strong>the</strong> nature <strong>of</strong> <strong>the</strong> persons defamed, namelywhe<strong>the</strong>r <strong>the</strong>y are public or private persons; and <strong>the</strong> o<strong>the</strong>r concerned with <strong>the</strong>nature <strong>of</strong> <strong>the</strong> matter in issue, i.e. whe<strong>the</strong>r it is a matter <strong>of</strong> public or purely privateinterest. 67 With few exceptions, <strong>the</strong> Court used some combination <strong>of</strong> both <strong>the</strong>se64Id., 265. The term ”malice” in US law has somewhat different meaning when applied tovarious institutes, but it always denotes <strong>the</strong> existence <strong>of</strong> intention to inflict some harm too<strong>the</strong>r; in <strong>the</strong> area <strong>of</strong> defamation law, <strong>the</strong> harm affects <strong>the</strong> reputation <strong>of</strong> <strong>the</strong> 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 <strong>of</strong> actual malice requirement see also W. Wat Hopkins,Actual malice (New York-Westport-London, 1989).65Clifton D. Lawhorne, Defamation and Public Officials, 213 (Sou<strong>the</strong>rn Illinois UniversityPress, 1971).66See e.g. Thomas I. Emerson, The System <strong>of</strong> Freedom <strong>of</strong> Expression, 530-531, 538 (NewYork, 1970).67Douglas C. Campbell, The Supreme Court And <strong>the</strong> 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 Te<strong>of</strong>ilovićelements in most cases where it dealt with <strong>the</strong> question <strong>of</strong> whom <strong>the</strong> actual malicerequirement applies to. Almost all o<strong>the</strong>r issues related to defamation are, oneway or ano<strong>the</strong>r, connected with this central issue <strong>of</strong> <strong>the</strong> US defamation law.The actual malice test as set in New York Times has generated <strong>the</strong> need tospecify some <strong>of</strong> its aspects. In comparison with <strong>the</strong> traditional understanding <strong>of</strong>malice, ”actual malice” introduced a new stricter standard in respect <strong>of</strong> <strong>the</strong>evidence that <strong>the</strong> plaintiff has to present to be successful in libel litigation: while <strong>the</strong>defendant’s ”malice” has previously been presumed from <strong>the</strong> fact <strong>of</strong> publication,actual malice requires plaintiffs to find out and prove <strong>the</strong> defendant’s state <strong>of</strong>mind, namely that he knew that <strong>the</strong> statement was false, or that he was inexcusablynegligent in this respect. Thus, <strong>the</strong> Court had to specify <strong>the</strong> relation between <strong>the</strong>traditional understanding <strong>of</strong> malice and <strong>the</strong> meaning <strong>of</strong> actual malice under NewYork Times. The requirement <strong>of</strong> pro<strong>of</strong> <strong>of</strong> actual malice also generated a relatedproblem <strong>of</strong> <strong>the</strong> demarcation between actual malice and lower degrees <strong>of</strong> fault.Dealing with this issue a year after <strong>the</strong> New York Times judgment, <strong>the</strong>Court 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, <strong>the</strong> Court fur<strong>the</strong>r specified thisstandard in respect <strong>of</strong> <strong>the</strong> assessment <strong>of</strong> a candidate’s fitness for public service,stating that <strong>the</strong> standard <strong>of</strong> assessing <strong>the</strong> ”relevance” is lower than <strong>the</strong> standard<strong>of</strong> knowing falsity or utter recklessness contained in <strong>the</strong> requirement to establishactual malice. It also added that <strong>the</strong> standard <strong>of</strong> ”relevance” may become aninstrument <strong>of</strong> suppression <strong>of</strong> speech based on <strong>the</strong> content <strong>of</strong> speech, while astandard <strong>of</strong> care (actual malice) ”can be neutral with respect to <strong>the</strong> content <strong>of</strong><strong>the</strong> speech involved.” 69In pursuit <strong>of</strong> <strong>the</strong> adequate criteria for establishing <strong>the</strong> existence <strong>of</strong> actualmalice, <strong>the</strong> 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 <strong>the</strong> stand that a judge must621 (1971), where <strong>the</strong> Court, discussing whe<strong>the</strong>r <strong>the</strong> libel in issue was <strong>of</strong> public or privatenature, stated that <strong>the</strong> difference between situations where actual malice is to be shown andthose where it is not is based on two groups <strong>of</strong> factors, namely <strong>the</strong> class <strong>of</strong> persons whoappear as plaintiffs, and a type <strong>of</strong> activity <strong>the</strong>y 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 <strong>of</strong> <strong>the</strong> US <strong>Jurisprudence</strong> to Freedom... 217base his assessment on ”clear and convincing evidence”. 70 This way, <strong>the</strong> normthat normally applies in civil litigations – <strong>the</strong> preponderance <strong>of</strong> pro<strong>of</strong> – hasbeen substituted by a stricter requirement <strong>of</strong> ”clear and convincing evidence”,which is, again, milder than <strong>the</strong> criminal law standard <strong>of</strong> ”pro<strong>of</strong> beyond reasonabledoubt”. Along <strong>the</strong>se lines, <strong>the</strong> Court in Patriot Co. v. Roy explicated that <strong>the</strong>standard <strong>of</strong> ”relevance” is based on <strong>the</strong> preponderance <strong>of</strong> evidence, while showingactual malice requires clear and convincing evidence <strong>of</strong> knowing falsity or recklessdisregard <strong>of</strong> <strong>the</strong> truth; thus <strong>the</strong> standard <strong>of</strong> reasonable person as a standard <strong>of</strong>care is lower, and does not make an adequate protection for political speechabout public <strong>of</strong>ficials. 71A related consequence <strong>of</strong> New York Times is that ordinary negligence inrespect <strong>of</strong> <strong>the</strong> truth <strong>of</strong> defamatory statements about public <strong>of</strong>ficials is no longersufficient for <strong>the</strong> plaintiff to win <strong>the</strong> case. 72 Thus, an issue generated by thisdecision is what behaviour constitutes ”reckless disregard”, and what <strong>the</strong> criteriafor distinguishing it from ordinary negligence are. In respect <strong>of</strong> media defendants,it related to <strong>the</strong> level <strong>of</strong> due care <strong>the</strong>y have to follow when verifying <strong>the</strong> statements<strong>the</strong>y publish. In one <strong>of</strong> <strong>the</strong> subsequent decisions <strong>the</strong> Court reasoned that <strong>the</strong>newspaper’s failure to investigate <strong>the</strong> charges do not amount to ”high degree <strong>of</strong>awareness <strong>of</strong>... probable falsity demanded by New York Times”, and thus doesnot make sufficient pro<strong>of</strong> <strong>of</strong> <strong>the</strong> existence <strong>of</strong> actual malice. 73 In a similar tone,<strong>the</strong> Court in St. Amant and in Rosenbloom 74 stated that for <strong>the</strong> finding <strong>of</strong> actualmalice ”<strong>the</strong>re must be sufficient evidence to permit <strong>the</strong> conclusion that <strong>the</strong>defendant in fact entertained serious doubts as to <strong>the</strong> truth <strong>of</strong> his publication.”In ano<strong>the</strong>r case <strong>the</strong> Court deemed that publishing a false defamatory statement,providing that it is a consequence <strong>of</strong> an unintentional error in judgment, is notan evidence <strong>of</strong> 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 <strong>of</strong> U.S., Inc. 466 U.S. 485, 80L.Ed.2d 502, 104 S.Ct. 1949, at 514 (1984), where <strong>the</strong> 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 <strong>the</strong> Times supports at most a finding <strong>of</strong> negligence [...], and isconstitutionally insufficient to show <strong>the</strong> recklessness that is required for a finding <strong>of</strong> 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 Te<strong>of</strong>ilovićpublished with unmistaken knowledge <strong>of</strong> falsity. 75 In a similar assessment <strong>of</strong> <strong>the</strong>author’s judgment, <strong>the</strong> Court held that if <strong>the</strong> 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 <strong>the</strong> Court declared that <strong>the</strong> media ”must be able to establishnot merely that <strong>the</strong> item reported was a conceivable or plausible interpretation<strong>of</strong> <strong>the</strong> decree, but that <strong>the</strong> item was factually correct;” 77 in o<strong>the</strong>r words,accurate reporting understands more than freely selecting one rationalinterpretation among those available in an unclear document, since <strong>the</strong> facts onwhich <strong>the</strong> interpretation is based must be accurate.On <strong>the</strong> o<strong>the</strong>r hand, <strong>the</strong> application <strong>of</strong> <strong>the</strong> actual malice standard, particularlyin cases where it requires <strong>the</strong> establishment <strong>of</strong> accuracy and rationality <strong>of</strong>conclusions about <strong>the</strong> truth <strong>of</strong> <strong>the</strong> alleged defamatory statements, also calls for<strong>the</strong> examination <strong>of</strong> <strong>the</strong> way <strong>the</strong> information were collected, and <strong>of</strong> <strong>the</strong> editorialdecision making process, which opened some o<strong>the</strong>r questions. In Lando <strong>the</strong>Court rejected <strong>the</strong> defendant’s claim <strong>of</strong> a constitutional privilege against <strong>the</strong>discovery <strong>of</strong> <strong>the</strong> information about <strong>the</strong> editorial decision making process 78 , statingthat: ”There is no First Amendment restriction on <strong>the</strong> sources from which <strong>the</strong>plaintiff obtains <strong>the</strong> necessary evidence to prove <strong>the</strong> critical elements <strong>of</strong> his cause<strong>of</strong> action. On <strong>the</strong> contrary, New York Times and its progeny made it essential toproving liability that <strong>the</strong> plaintiff focus on <strong>the</strong> conduct and state <strong>of</strong> mind <strong>of</strong> <strong>the</strong>defendant.” A defamed public <strong>of</strong>ficial may, and must inquire about journalist’sstate <strong>of</strong> mind to show reckless disregard, and <strong>the</strong> media are not protected fromquestions about <strong>the</strong> editorial process since <strong>the</strong> limits <strong>of</strong> such privilege would be75Bose Corporation v. Consumers Union <strong>of</strong> 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 <strong>the</strong> preparations for <strong>the</strong> trial <strong>the</strong> plaintiff required Lando, <strong>the</strong> producer <strong>of</strong> aTV show that contained alleged defamatory statements, to reveal certain informationrelated to <strong>the</strong> editorial process, which he refused claiming a constitutional privilege againstdiscovering that kind <strong>of</strong> information which protects <strong>the</strong> media from self-censorship. TheSupreme Court denied anything similar to such privilege, since <strong>the</strong> actual malice test wasdesigned ”to discourage <strong>the</strong> publication <strong>of</strong> erroneous information known to be false, orprobably false”, and such information only.
The Contribution <strong>of</strong> <strong>the</strong> US <strong>Jurisprudence</strong> to Freedom... 219difficult to specify. 79 Campbell noted that one <strong>of</strong> <strong>the</strong> effects <strong>of</strong> <strong>the</strong> actual malicerule is that some reporters prefer to destroy <strong>the</strong>ir notes fearful that <strong>the</strong> court’sassessment <strong>of</strong> <strong>the</strong>ir liability on <strong>the</strong> grounds <strong>of</strong> <strong>the</strong> information <strong>the</strong>y based <strong>the</strong>irstatements upon could be unfavourable for <strong>the</strong>m. 80 O<strong>the</strong>rs pointed out thatsuch fear makes most <strong>of</strong> <strong>the</strong> comments being approved by lawyers beforedissemination”. 81 Even Justice White in one <strong>of</strong> <strong>the</strong> Supreme Court’s decisionsstated that one side effect <strong>of</strong> this doctrine could be <strong>the</strong> prolonged discovery periodwhich would be detrimental to <strong>the</strong> press. 822.2 Defamation <strong>of</strong> „Public” and „Private” PersonsAno<strong>the</strong>r issue that emerged from New York Times judgment relates to <strong>the</strong>circle <strong>of</strong> plaintiffs who must prove <strong>the</strong> defendant’s actual malice. The importance<strong>of</strong> this matter lies in <strong>the</strong> fact that only <strong>the</strong> 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 <strong>the</strong> defendants actual maliceand consequently <strong>the</strong>y can win <strong>the</strong> case and <strong>the</strong> damages for harm done to <strong>the</strong>irreputation easier than <strong>the</strong> former. Closely associated is <strong>the</strong> issue <strong>of</strong> distinguishingbetween defamation <strong>of</strong> public <strong>of</strong>ficials acting in <strong>the</strong>ir public capacity, anddefamation <strong>of</strong> same persons as private individuals, i.e. when <strong>the</strong>y are notperforming <strong>the</strong>ir <strong>of</strong>ficial duties. 83 In <strong>the</strong> period after New York Times <strong>the</strong>prevalent trend was <strong>of</strong> extending its rule to plaintiffs o<strong>the</strong>r than public <strong>of</strong>ficials.The next Supreme Court’s decision important for defamation was Garrison,where <strong>the</strong> application <strong>of</strong> 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, <strong>the</strong> Court explicitly stated that charges <strong>of</strong> criminal misconduct <strong>of</strong> public <strong>of</strong>ficialsor candidates for a public service are not just a private matter, because such questions arealways important for <strong>the</strong> assessment <strong>of</strong> <strong>the</strong>ir fitness for <strong>the</strong> <strong>of</strong>fice, and so <strong>the</strong> 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 <strong>of</strong> criminal libel for accusing eight state court judges <strong>of</strong> laziness and inefficiency,and <strong>of</strong> hampering his efforts to enforce <strong>the</strong> vice laws, but <strong>the</strong> US Supreme Court held that
220Petar Te<strong>of</strong>ilovićaccusations concerned <strong>the</strong> judges’ <strong>of</strong>ficial conduct, and did not become privatedefamation because <strong>the</strong>y might also have reflected on <strong>the</strong> judges’ privatecharacter”. 85 This formulation suggested that almost every action <strong>of</strong> a public<strong>of</strong>ficial may be relevant to evaluate his <strong>of</strong>ficial performance, and that even critics<strong>of</strong> his private conduct may be protected under <strong>the</strong> actual malice rule. Oneaspect <strong>of</strong> Garrison is particularly important from <strong>the</strong> comparative perspective.Namely, in this decision <strong>the</strong> Supreme Court had explicitly and without anyreservation placed <strong>the</strong> judges into <strong>the</strong> category <strong>of</strong> public servants who, besides<strong>the</strong> existence <strong>of</strong> defamation, have to show <strong>the</strong> pro<strong>of</strong> <strong>of</strong> actual malice on behalf<strong>of</strong> <strong>the</strong> defendant. With this decision <strong>the</strong> Court fostered <strong>the</strong> view about <strong>the</strong>position <strong>of</strong> judges as plaintiffs in defamation trials spelled out in Bridges v.California, where, dealing with <strong>the</strong> conviction <strong>of</strong> <strong>the</strong> applicant for contempt <strong>of</strong>court, it explicitly stated that ”<strong>the</strong> respect for <strong>the</strong> judiciary cannot be won byshielding judges from published criticism[...], solely in <strong>the</strong> name <strong>of</strong> preserving<strong>the</strong> dignity <strong>of</strong> <strong>the</strong> bench, [because that] would probably engender resentment,suspicion, and contempt much more than it would enhance respect.” 86”<strong>the</strong> Constitution limits state power to impose sanctions for criticism <strong>of</strong> <strong>the</strong> <strong>of</strong>ficial conduct<strong>of</strong> public <strong>of</strong>ficials, in criminal cases as in civil cases, to false statements concerning <strong>of</strong>ficialconduct made with knowledge <strong>of</strong> <strong>the</strong>ir falsity or with reckless disregard <strong>of</strong> whe<strong>the</strong>r <strong>the</strong>ywere false or not.”85Id., at 77.86Bridges v, California, 314. U.S. 252 (1941). This view stands in sharp contrast with <strong>the</strong>doctrine developed in <strong>the</strong> practice <strong>of</strong> <strong>the</strong> European Court <strong>of</strong> Human Rights according towhich judges should enjoy special protection from defamation for two main reasons: 1. <strong>the</strong>yare more vulnerable to injuries <strong>of</strong> reputation because <strong>of</strong> <strong>the</strong>ir duty <strong>of</strong> discretion, whichprecludes <strong>the</strong>m from replying to attacks in <strong>the</strong> media, and thus have less means to protect<strong>the</strong>mselves from defamation than <strong>the</strong> politicians who can use <strong>the</strong> media to that end; 2.defamatory attacks on judges not only harm <strong>the</strong>ir reputation, but may also damage <strong>the</strong>authority and impartiality <strong>of</strong> <strong>the</strong> judiciary, and thus <strong>the</strong>ir protection goes beyond <strong>the</strong> 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, <strong>the</strong> level<strong>of</strong> protection <strong>of</strong> judges and o<strong>the</strong>r judicial <strong>of</strong>ficers under <strong>the</strong> European Convention <strong>of</strong> HumanRights varies according to <strong>the</strong> circumstances <strong>of</strong> <strong>the</strong> particular case. The reputation <strong>of</strong> judgesenjoys lower level <strong>of</strong> protection if <strong>the</strong> attack has been published in <strong>the</strong> form <strong>of</strong> a valuejudgment (opinion), which by its nature is not susceptible <strong>of</strong> pro<strong>of</strong> (See De Haes and Gijselsv. Belgium, Judgment <strong>of</strong> 24 February 1997, Reports <strong>of</strong> Judgments and Decisions, 1997-I), aswell as if a judicial <strong>of</strong>ficer acts as a ”militant political activist” – in that case he has to endure<strong>the</strong> same strict criticism as any politician (<strong>the</strong> latter, according to <strong>the</strong> practice <strong>of</strong> <strong>the</strong> EuropeanCourt <strong>of</strong> Human Rights, enjoy <strong>the</strong> lowest level <strong>of</strong> protection <strong>of</strong> reputation. The nature <strong>of</strong>
The Contribution <strong>of</strong> <strong>the</strong> US <strong>Jurisprudence</strong> to Freedom... 221In Rosenblatt 87 , <strong>the</strong> Court extended <strong>the</strong> definition <strong>of</strong> public <strong>of</strong>ficials to all”government employees who have, or appear to <strong>the</strong> public to have, substantialresponsibility for or control over <strong>the</strong> conduct <strong>of</strong> governmental affairs”. Criticism<strong>of</strong> public <strong>of</strong>ficial’s conduct is very similar to defamation <strong>of</strong> <strong>the</strong> government,which is a protected speech. Still, <strong>the</strong> Court stressed that trial courts should makesure that defamation <strong>of</strong> public <strong>of</strong>ficial’s behaviour does not make a defamation<strong>of</strong> his private life, which enjoys higher level <strong>of</strong> protection. Ano<strong>the</strong>r contribution<strong>of</strong> this decision was that it clarified that <strong>the</strong> actual malice standard applies tosome former <strong>of</strong>ficials as well as to those who still hold <strong>the</strong>ir posts.Four months after New York Times <strong>the</strong> Federal Court <strong>of</strong> Appeals for <strong>the</strong>Second Circuit suggested in Pauling that <strong>the</strong> actual malice privilege probablyneeds to be extended to o<strong>the</strong>r individuals, and even to debates on issues <strong>of</strong> vitalpublic interest. 88 This, in a way, announced <strong>the</strong> next important novelty introducedby <strong>the</strong> Supreme Court in Butts, decided toge<strong>the</strong>r with Walker 89 : <strong>the</strong> creation <strong>of</strong>”public figure” category <strong>of</strong> plaintiffs. In <strong>the</strong> first case <strong>the</strong> plaintiff was allegedlydefamed that he had conspired to fix <strong>the</strong> football game between two universitiesin 1962, whereas in <strong>the</strong> second <strong>the</strong> reporter wrote about an eyewitness accountabout a riot at a university, claiming that <strong>the</strong> plaintiff commanded <strong>the</strong> crowdagainst federal troops enforcing a court order, and instigated rioters to useviolence. The majority <strong>of</strong> 7 Justices (out <strong>of</strong> 9) approved that both plaintiffs were”public figures” for <strong>the</strong> purposes <strong>of</strong> <strong>the</strong> First Amendment, although <strong>the</strong>y gainedthat status differently: while in <strong>the</strong> first case <strong>the</strong> plaintiff may have attained thatstatus by position alone (as a team coach), in <strong>the</strong> second case <strong>the</strong> plaintiff becamea public figure by thrusting himself into <strong>the</strong> ”vortex” <strong>of</strong> a public controversy. Inorder to cover both <strong>of</strong> <strong>the</strong>m by <strong>the</strong> definition <strong>of</strong> ”public person”, <strong>the</strong> Courtformulated a more general definition, according to which public figures werepersons who command <strong>the</strong> interest <strong>of</strong> <strong>the</strong> general public, and are importantenough to gain access to <strong>the</strong> mass media to reply to libellous statements. 90 The<strong>the</strong>ir job makes <strong>the</strong>m constantly exposed to public scrutiny, and <strong>the</strong>y have willingly andvoluntarily accepted to be politicians, so <strong>the</strong>y have to tolerate <strong>the</strong> attacks on <strong>the</strong>ir reputationthat <strong>the</strong> majority <strong>of</strong> o<strong>the</strong>r individuals need not tolerate – see Perna v. Italy, Judgment <strong>of</strong> 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 Te<strong>of</strong>ilovićdefinition <strong>of</strong> public figures, however, was not definitely set in Butts/Walker, butwas discussed fur<strong>the</strong>r on. In <strong>the</strong> process, <strong>the</strong> Court has been meandering betweenextending and narrowing its scope. As for <strong>the</strong> standard applicable to publicfigures in defamation cases <strong>the</strong> majority accepted <strong>the</strong> actual malice standard.The Court discussed <strong>the</strong> public figure concept again in Rosenbloom, whereit introduced <strong>the</strong> notion <strong>of</strong> ”involuntary public person”, one who is actually aprivate person but is involved in a matter <strong>of</strong> public concern. 91 The outcomewas <strong>the</strong> ra<strong>the</strong>r uncontrollable expansion <strong>of</strong> <strong>the</strong> circle <strong>of</strong> ”public figure”plaintiffs, since even private persons were attached <strong>the</strong> requirement to proveactual malice on behalf <strong>of</strong> <strong>the</strong> defendant in cases involving matters <strong>of</strong> generalinterest. The Court first stated that decisions after New York Times have revealed<strong>the</strong> ”artificiality, in terms <strong>of</strong> <strong>the</strong> public’s interest, <strong>of</strong> a simple distinction between”public” and ”private” individuals or institutions”. Namely, quoting from Butts,<strong>the</strong> Court reiterated that ”[P]olicy determinations which traditionally werechannelled through formal political institutions are now originated andimplemented through a complex array <strong>of</strong> [bodies], some only looselyconnected with <strong>the</strong> Government. This blending <strong>of</strong> positions and power hasalso occurred in <strong>the</strong> case <strong>of</strong> individuals so that many who do not hold public<strong>of</strong>fice at <strong>the</strong> moment are never<strong>the</strong>less intimately involved in <strong>the</strong> resolution <strong>of</strong>important public questions”. 92 As self-governance presupposes more thanknowledge and debate about <strong>the</strong> strictly <strong>of</strong>ficial activities <strong>of</strong> various levels <strong>of</strong>government, <strong>the</strong> relevant facet to <strong>the</strong> actual malice requirement is not whe<strong>the</strong>r <strong>the</strong>defamed person is public or private, but whe<strong>the</strong>r <strong>the</strong>re is public interest involvedin <strong>the</strong> controversy or not. The Court continued by stating that matters <strong>of</strong>public interest cannot become less so merely because a private individual isinvolved, or because a private individual did not voluntarily thrust himself intosuch matter; <strong>the</strong> public focus is on <strong>the</strong> conduct <strong>of</strong> <strong>the</strong> participant and <strong>the</strong>content, effect, and significance <strong>of</strong> <strong>the</strong> conduct, not <strong>the</strong> participant's prioranonymity or notoriety. 93 On those grounds <strong>the</strong> Court extended <strong>the</strong> FirstAmendment protection to all discussion involving matters <strong>of</strong> such interest. Theoutcome <strong>of</strong> Rosenbloom was that <strong>the</strong> earlier distinction between public <strong>of</strong>ficials,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 <strong>of</strong> <strong>the</strong> US <strong>Jurisprudence</strong> to Freedom... 223<strong>of</strong> plaintiffs were to be treated <strong>the</strong> same when <strong>the</strong> defamation has occurred inrelation to discussions on a matter <strong>of</strong> general or public interest.The Supreme Court next dealt with refinements <strong>of</strong> public figure conceptthree years later in Gertz, 94 where it definitely rejected <strong>the</strong> ”matter <strong>of</strong> publicinterest” standard promoted in Rosenbloom for <strong>the</strong> application <strong>of</strong> actual malicerule. 95 There <strong>the</strong> 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 <strong>of</strong> such power and influence that <strong>the</strong>yachieve pervasive fame or notoriety, and assume special prominence in resolvingmatters <strong>of</strong> public interest. ”Public figures for limited purposes” voluntarily enter,or are drawn into a particular public controversy with <strong>the</strong> intention to affect itsresolution, and thus gain <strong>the</strong> status <strong>of</strong> a public figure for a limited range <strong>of</strong> issuesthat <strong>the</strong>y are involved with. Finally, ”involuntary public figures” are largelyhypo<strong>the</strong>tical, and include those who did not ”voluntarily” choose to becomeassociated with a matter <strong>of</strong> general interest; still, <strong>the</strong>y cannot recover damagesfor injury to reputation unless <strong>the</strong>y prove <strong>the</strong> defendant’s actual malice. Commonfeature <strong>of</strong> all three categories <strong>of</strong> public figures is that all <strong>of</strong> <strong>the</strong>m have assumedroles <strong>of</strong> prominence in public affairs, and <strong>the</strong> media are thus entitled to take forgranted that public figures, same as public <strong>of</strong>ficials, had ”voluntarily exposed<strong>the</strong>mselves to increased risk <strong>of</strong> injury through defamatory falsehood.” Suchassumption is not acceptable in respect <strong>of</strong> private individuals: <strong>the</strong>y normally havelesser opportunities for rebuttal than public <strong>of</strong>ficials and public figures, and arethus more vulnerable to injury from defamation, so <strong>the</strong> legitimate state interestto compensate private individuals is greater than for public <strong>of</strong>ficials and publicfigures. The Court stated that ”absent any clear evidence <strong>of</strong> general fame <strong>of</strong>notoriety, and pervasive involvement in <strong>the</strong> affairs <strong>of</strong> society”, an individualshould not be deemed a public figure for all aspects <strong>of</strong> his life, but this issueshould ra<strong>the</strong>r be determined by reference to <strong>the</strong> nature and extent <strong>of</strong> hisparticipation in <strong>the</strong> particular controversy giving rise to <strong>the</strong> defamation. 96 Thestates are free to establish <strong>the</strong>ir own level <strong>of</strong> fault for <strong>the</strong> media when defamation94Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L.Ed.2d 789, 94 S.Ct. 2997 (1974).95In Rosenbloom <strong>the</strong> ”matter <strong>of</strong> 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 Te<strong>of</strong>ilovićrelates to private persons, but punitive damages in respect <strong>of</strong> private individualplaintiffs may be considered only if <strong>the</strong>y can demonstrate actual malice on behalf<strong>of</strong> <strong>the</strong> plaintiff. The consequence was that <strong>the</strong> scope <strong>of</strong> <strong>the</strong> public figure conceptas set in Rosenbloom was significantly reduced, because after Gertz privateindividuals are not automatically put into <strong>the</strong> category <strong>of</strong> public figures eventhough <strong>the</strong> matter in issue was <strong>of</strong> public concern, and thus <strong>the</strong>y need not prove<strong>the</strong> defendant’s actual malice.The scope <strong>of</strong> <strong>the</strong> notion <strong>of</strong> public figure was fur<strong>the</strong>r narrowed in Firestone 97 ,where <strong>the</strong> Time magazine was convicted by state courts for libel because <strong>of</strong> <strong>the</strong>way it wrote about <strong>the</strong> divorce suit <strong>of</strong> a couple that was <strong>of</strong> certain fame in <strong>the</strong>public. Time filed a petition to <strong>the</strong> Supreme Court claiming that <strong>the</strong> issue was apublic controversy because <strong>of</strong> <strong>the</strong> celebrity status <strong>of</strong> <strong>the</strong> plaintiff, and that sheshould be treated as a public figure. The Court, however, noted that <strong>the</strong> petitionerseeks to equate ”public controversy” with all controversies <strong>of</strong> interest to <strong>the</strong> public,which would reinstate <strong>the</strong> doctrine advanced in Rosenbloom, but repudiated inGertz. A divorce through judicial proceedings is not <strong>the</strong> sort <strong>of</strong> ”public controversy”referred to in Gertz since <strong>the</strong> respondent did not assume any ”special prominencein <strong>the</strong> resolution <strong>of</strong> public questions”, and so ”imposing upon <strong>the</strong> law <strong>of</strong> privatedefamation <strong>the</strong> ra<strong>the</strong>r drastic limitations worked by New York Times cannot bejustified by generalized references to <strong>the</strong> public interest in reports <strong>of</strong> judicialproceedings... The details <strong>of</strong> many, if not most, courtroom battles would addalmost nothing toward advancing <strong>the</strong> uninhibited debate on public issues”. TheCourt concluded that <strong>the</strong> respondent was not a ”public figure” for <strong>the</strong> purpose<strong>of</strong> determining <strong>the</strong> constitutional protection afforded. 98 The outcome <strong>of</strong>Firestone is that even renowned persons actively seeking publicity are notnecessarily public figures. Still, although <strong>the</strong> Court did its best to avoid <strong>the</strong>”matter <strong>of</strong> public interest” test, it had to resort to it to some extent in order totry to consistently specify <strong>the</strong> circle <strong>of</strong> public figures.Four years later <strong>the</strong> Court fur<strong>the</strong>r developed <strong>the</strong> idea that private personswho become involved in matters that attract public attention do not automaticallybecome ”public figures”. In Wolston 99 <strong>the</strong> plaintiff’s involvement in <strong>the</strong>criminal trial was not deemed a voluntary effort to influence <strong>the</strong> outcome <strong>of</strong> 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 <strong>of</strong> <strong>the</strong> US <strong>Jurisprudence</strong> to Freedom... 225particular public controversy, so he was not a public figure within <strong>the</strong> meaning<strong>of</strong> <strong>the</strong> Court’s previous rulings in defamation cases and, consequently, was notrequired by <strong>the</strong> First Amendment to meet <strong>the</strong> ”actual malice” standard <strong>of</strong> NewYork Times in order to recover from respondents.In Hepps 100 <strong>the</strong> Court considered <strong>the</strong> question <strong>of</strong> who bears <strong>the</strong> burden<strong>of</strong> pro<strong>of</strong> in defamation cases. Namely, even after New York Times most stateshave kept <strong>the</strong> old common law assumption that all persons are <strong>of</strong> goodreputation unless proved contrary, and that defendants in defamation caseshave to prove <strong>the</strong> truth <strong>of</strong> <strong>the</strong>ir statements. The Court in Hepps, however, madeit clear that this common law rule was superseded by a constitutional rule in itspast decisions, and that <strong>the</strong> burden <strong>of</strong> pro<strong>of</strong> <strong>of</strong> falsity <strong>of</strong> a defamatory statement,as well as <strong>of</strong> fault (actual malice), rests on <strong>the</strong> plaintiff. This switch was based ona rationale that <strong>the</strong> burden <strong>of</strong> proving true speech would have restrictive effectson such speech; on <strong>the</strong> o<strong>the</strong>r hand, <strong>the</strong> alteration <strong>of</strong> <strong>the</strong> traditional rule <strong>of</strong> <strong>the</strong>burden <strong>of</strong> pro<strong>of</strong> was seen as adding only slightly to <strong>the</strong> already present burdens<strong>of</strong> <strong>the</strong> plaintiff since ”evidence <strong>of</strong>fered by plaintiffs on <strong>the</strong> publisher’s fault [...]will generally encompass evidence <strong>of</strong> falsity”. 101 The rule <strong>of</strong> <strong>the</strong> burden <strong>of</strong> pro<strong>of</strong><strong>of</strong> falsity was formulated to pertain to private plaintiffs, where defamatorystatements were made by media defendants in relation to matters <strong>of</strong> publicconcern. Hepps, however, did not explicate whe<strong>the</strong>r <strong>the</strong> same rule applies tocases where defamatory statement has been made by non-media defendants.The concept <strong>of</strong> public figure in <strong>the</strong> <strong>the</strong>ory is largely influenced by <strong>the</strong>considerations expressed in <strong>the</strong> Supreme Court’s decisions. For instance, Prosserand Keeton describe public figure as one ”who [...] by adopting a pr<strong>of</strong>ession orcalling which gives <strong>the</strong> 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 <strong>the</strong>yreceived it; <strong>the</strong>ir personalities and <strong>the</strong>ir affairs had already become public, andcould no longer be regarded as <strong>the</strong>ir own private business, and [...] <strong>the</strong> press hasa privilege under <strong>the</strong> Constitution to inform <strong>the</strong> public about those who havebecome legitimate matters <strong>of</strong> public interest.” 102 This justification <strong>of</strong> 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 <strong>the</strong> Press, vol.12, No.1 Communications and<strong>the</strong> Law (1990), at 60.
226Petar Te<strong>of</strong>ilovićprotection <strong>of</strong> public figures is similar to that adopted by <strong>the</strong> European Court <strong>of</strong>Human Rights in Lingens and in subsequent decisions in respect <strong>of</strong> politicians.The scope and contents <strong>of</strong> ”public figure” concept are still not definedclearly, and probable never will be. Thus it is a matter requiring thorough analysisby <strong>the</strong> court each time, on a case by case basis, since that may significantly affect<strong>the</strong> final finding in respect <strong>of</strong> <strong>the</strong> plaintiff’s status and his right to recoverdamages for defamation. 103* * *Although admitting that actual malice requirement is an improvementover <strong>the</strong> common law strict liability standards, Gillmor objected to its wisdomand listed a number <strong>of</strong> problems that followed after New York Times: it introducednumerous dichotomies between absolutes – truth v. falsehood, public v. private,malice v. lack <strong>of</strong> malice, fact v. opinion, deliberate v. non-deliberate; <strong>the</strong>re seemedto be no standard definitions <strong>of</strong> <strong>the</strong> constituents <strong>of</strong> libel, while <strong>the</strong> SupremeCourt was divided in respect <strong>of</strong> limits <strong>of</strong> tolerance for defamatory speech;additional confusion has been generated by unclear relations between oldcommon law standards and <strong>the</strong> innovations instituted in <strong>the</strong> last four decades;because <strong>of</strong> <strong>the</strong> nature <strong>of</strong> actual malice test, (plaintiffs’) lawyers were permittedto explore <strong>the</strong> minds <strong>of</strong> reporters and editors, and to base <strong>the</strong> claim <strong>of</strong> <strong>the</strong>existence <strong>of</strong> actual malice on hunch, impression or inference, while <strong>the</strong> courtswere defining journalistic responsibility. Thus, Gillmor’s conclusion was thatNew York Times was a ”lost opportunity” and a ”crippling compromise”: what<strong>the</strong> doctrine might have intended was in tatters because <strong>of</strong> <strong>the</strong> unexpectedboomerang effect <strong>of</strong> actual malice test. 104 There were even proposals forabandoning <strong>the</strong> New York Times doctrine and returning to old common law105rules.103As an illustration <strong>of</strong> 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 <strong>the</strong> Abuse <strong>of</strong> 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 <strong>the</strong>ir 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 <strong>of</strong> Libel (Dennis and Noam (eds.), New York, 1989).
The Contribution <strong>of</strong> <strong>the</strong> US <strong>Jurisprudence</strong> to Freedom... 227III Conclusive RemarksThe development <strong>of</strong> <strong>the</strong> contemporary US law on defamation was extremelydynamic and interesting, particularly in <strong>the</strong> second half <strong>of</strong> <strong>the</strong> <strong>20th</strong> century. Theinherited rigid rules <strong>of</strong> English common law, primarily aimed at <strong>the</strong> protection<strong>of</strong> reputation <strong>of</strong> individual, were gradually replaced as obsolete by new approachthat is more directed towards <strong>the</strong> protection <strong>of</strong> <strong>the</strong> freedom <strong>of</strong> expression. Thekey judgment <strong>of</strong> <strong>the</strong> US Supreme Court in this respect, New York Times v.Sullivan, represented a radical departure from earlier views and standards, andcaused revision and modification <strong>of</strong> many rules that have been uncontested forcenturies. By interpreting <strong>the</strong> issue <strong>of</strong> defamation through its relation with <strong>the</strong>liberally understood freedom <strong>of</strong> expression, and by extending <strong>the</strong> effects <strong>of</strong> <strong>the</strong>First Amendment <strong>of</strong> <strong>the</strong> federal constitution to <strong>the</strong> state law, a substantiallynew understanding <strong>of</strong> numerous aspects <strong>of</strong> defamation has been developed.Freedom <strong>of</strong> expression was undoubtedly extended, but even in <strong>the</strong> new contextthis freedom meets some new challenges. The effects <strong>of</strong> <strong>the</strong> US jurisprudence inthis area did not remain limited only to <strong>the</strong> USA but strongly influenced <strong>the</strong>relevant law in some o<strong>the</strong>r states, too, even including <strong>the</strong> interpretations <strong>of</strong>certain international instruments. The US law <strong>of</strong> libel is still very complex, so<strong>the</strong> finaloutcome <strong>of</strong> defamation proceedings <strong>of</strong>ten remains uncertain until <strong>the</strong>final decision <strong>of</strong> <strong>the</strong> Supreme Court.
4 Dragutin Avramović, AssistantPolice Academy, Belgrade, SerbiaALAN WATSON: LEGAL TRANSPLANTS– AN APPROACH TO COMPARATIVE LAW 1Prominent Scottish and <strong>American</strong> pr<strong>of</strong>essor <strong>of</strong> Comparative Law AlanWatson, who has built his career at universities in Edinburgh, Oxford,Pennsylvania, Virginia, California, and now at <strong>the</strong> University <strong>of</strong> Georgia, acquiredgreat fame due to his numerous inventive works – more than 40 books and a fewhundred articles. However, two <strong>of</strong> his most important intellectual contributionswill remain remembered for long. The first one is editing and publishing <strong>the</strong>English translation <strong>of</strong> Justinian’s Digest 2 , while <strong>the</strong> second one is a <strong>the</strong>ory <strong>of</strong> legaltransplants, 3 which has provoked a thorough debate and concerned reactionamong legal scholars. By challenging some <strong>of</strong> basic principles <strong>of</strong> legal evolutionand <strong>of</strong> <strong>the</strong> historical school, as well as <strong>of</strong> <strong>the</strong> 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,A<strong>the</strong>ns GA – London, 1993, p. 1212The Digest <strong>of</strong> Justinian, I-II, University <strong>of</strong> Pennsylvania Press, 1998.3He has clearly defined his <strong>the</strong>ory on legal transplants firstly in A. Watson, Legal Transplants,an Approach to Comparative Law, University Press <strong>of</strong> Virginia, 1974. However, origins <strong>of</strong>his view can be rooted in his earlier works on Comparative Law and Legal History, whileadditional argumentation has been <strong>of</strong>fered in subsequent books like Society and Legal Change,Scottish Academic Press, Edinburgh, 1977; Comparative Law and Legal Change, Cambridge1978; The Making <strong>of</strong> <strong>the</strong> Civil Law, Harvard University Press, Cambridge, MA, 1981; TheSources <strong>of</strong> Law, Legal Change and Ambiguity, University <strong>of</strong> Pennsylvania Press, 1984; TheEvolution <strong>of</strong> Law, Johns Hopkins University Press, Baltimore, 1985; Failures <strong>of</strong> <strong>the</strong> LegalImagination (University <strong>of</strong> Pennsylvania Press, 1988); Legal Transplants, 2nd ed., University<strong>of</strong> Georgia Press, 1993; Law Out <strong>of</strong> Context University <strong>of</strong> Georgia Press, 2000; The Evolution<strong>of</strong> Western Private Law Johns Hopkins University Press, 2001. Important argumentation indefense <strong>of</strong> his view is available in electronic form: A. Watson, ”Legal Transplants andEuropean Private Law”, Electronic Journal <strong>of</strong> Comparative Law, vol 4.4 (December 2000).
Alan Watson: Legal Transplants – an Approach to Comparative Law 229Watson has attracted many arrows <strong>of</strong> criticisms, but he also acquires more andmore followers. Recent confrontation <strong>of</strong> opponents and supporters <strong>of</strong> this<strong>the</strong>ory that took place at <strong>the</strong> University <strong>of</strong> London conference held in May 2005has shown importance <strong>of</strong> legal transplants issues. Although Serbian literaturedoes not still include Alan Watson among most important legal philosophers <strong>of</strong><strong>the</strong> 20 th century 4 , his contribution to legal <strong>the</strong>ory is undeniable. This reviewaims to get him closer to our readers.According to Watson’s opinion <strong>the</strong> evolution <strong>of</strong> law is most <strong>of</strong>ten basedupon legal borrowings, although he does not exclude influences <strong>of</strong> internal legalevolution and o<strong>the</strong>r effecting elements. However, Watson insists and empiricallyapproves through many examples that changes in law <strong>of</strong>ten come out as aconsequence <strong>of</strong> solutions from o<strong>the</strong>r legal systems. Stressing that this effectappears in some cases by chance, he imperils <strong>the</strong> very foundations <strong>of</strong> evolutionism.Consequently, to perform legal changes it would not have been always necessaryto meet similar level <strong>of</strong> general social and economical development <strong>of</strong> <strong>the</strong> donorand recipient state. This is why he is usually strongly attacked predominantly byMarxists and sociologists.The book is divided in 17 chapters, combining <strong>the</strong>oretical and empiricalapproach. First four chapters titled ”Comparative Law as an Academic Discipline”,”The Perils <strong>of</strong> Comparative Law”, ”The Virtues <strong>of</strong> Comparative Law”,”Introduction to Legal Transplants” place <strong>the</strong>oretical framework for his futureconclusions. He treats Comparative Law not only as a method, but as a specificand complex scientific discipline: ”Comparative Law, <strong>the</strong>n, if it is to be anintellectual discipline in its own right, is something o<strong>the</strong>r than <strong>the</strong> study <strong>of</strong> oneforeign system (with glances at one’s own), an overall look at <strong>the</strong> world’s systemsor comparison <strong>of</strong> individual rules or <strong>of</strong> branches <strong>of</strong> law as between two or moresystems, and I would suggest that it is <strong>the</strong> study <strong>of</strong> <strong>the</strong> relationship <strong>of</strong> one legalsystem and its rules with ano<strong>the</strong>r” (p.6). Watson denies possibility <strong>of</strong> makinggeneral legal development <strong>the</strong>ory applicable to all or many unrelated societies.He attacks <strong>the</strong> evolutionary <strong>the</strong>ory from its own point <strong>of</strong> view, stating that it ismethodologically imperfect and not founded at firm principles, claiming alsothat <strong>the</strong>re is <strong>the</strong>refore no possibility to be refuted by an objective <strong>the</strong>oretical4R. Stepanov – G. Vukadinović, Pravna misao XX veka (Legal Thought <strong>of</strong> <strong>the</strong> 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 <strong>the</strong> <strong>the</strong>ory can only be established – and can only be rebutted – if itis developed. It is for <strong>the</strong>se reasons that we must take issue on ground chosen by<strong>the</strong> main proponent <strong>of</strong> <strong>the</strong> <strong>the</strong>ory, and show that in one important instance (forhim) <strong>the</strong> legal position described by him derives from his <strong>the</strong>ory and not fromevidence” (p.13). Watson claims that <strong>the</strong> most important value <strong>of</strong> ComparativeLaw rests in fact that it is able to <strong>of</strong>fer knowledge about <strong>the</strong> nature <strong>of</strong> law, and inparticularly <strong>of</strong> legal development. Comparative Law enables to reveal relationsbetween legal systems, representing a framework for understanding essence anddevelopment <strong>of</strong> law. Based upon this starting point, Watson accentuate a paradox<strong>of</strong> historical school that although <strong>the</strong> law reflects ”spirit <strong>of</strong> people”, legaltransplants are still very common and important. He points to Roman Law andEnglish Common Law as <strong>the</strong> two significant donor systems, being used fortransplantation <strong>of</strong> legal ideas and institutions all over <strong>the</strong> world.Therefore, in following chapters (”Romans and Roman Law in RomanEgypt”, ”Roman Systematics in Scotland”, ”The Reception <strong>of</strong> Roman Law inScotland”, ”Meaning and Authority”, ”Lo Codi”, ”The Early Law <strong>of</strong> <strong>the</strong>Massachusetts Bay Colony”, ”English Law in New Zealand”, ”Roman Law in <strong>the</strong>Late Republic”, ”Lex Aquilia: Reception and Non-Reception”, ”Transfer <strong>of</strong>Ownership and Risk in Sale”, ”Authority Again”) <strong>the</strong> author approves his generalstandpoints upon examples <strong>of</strong> 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 <strong>of</strong>fers apossibility <strong>of</strong> transplants classification, starting with basic division in voluntarymajor transplants and imposed ones.As in many <strong>of</strong> his works and lectures, he grants a particular attention tophenomenon <strong>of</strong> Scottish law, being predominantly developed under <strong>the</strong> influence<strong>of</strong> Civil (Continental) Law. Scotland has adopted from Roman Law both itspositive law and legal systematics, although it was placed next to England – <strong>the</strong>second most important legal nursery plant. By using that phenomenon Watsonclearly demonstrates <strong>the</strong> role <strong>of</strong> chances and importance <strong>of</strong> authorities in lawmaking process through borrowings. As <strong>the</strong> central reasons for transplantation<strong>of</strong> Roman Civil Law, ra<strong>the</strong>r than English Common Law, he picks out two maincauses: <strong>the</strong> first, a historical rivalry among Scotland and England culminatingwith <strong>the</strong> Scottish break with England after <strong>the</strong> War <strong>of</strong> Independence, and <strong>the</strong>second, absence <strong>of</strong> 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 <strong>the</strong>m and respect for authority <strong>of</strong> <strong>the</strong>ir pr<strong>of</strong>essors and <strong>the</strong>ir legalviews. In that way, a chance and role <strong>of</strong> authority affected predominantlyformation <strong>of</strong> Scottish law. Additional pro<strong>of</strong> <strong>of</strong> importance <strong>of</strong> chances in lawmaking process is marked by non-legal factors – lack <strong>of</strong> literature and linguisticdeficiencies. ”Clearly, one factor in <strong>the</strong> widespread reception <strong>of</strong> Roman law wasthat what later came to be called <strong>the</strong> 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 syn<strong>the</strong>sis <strong>of</strong> his standing and formulates 13major points <strong>of</strong> his <strong>the</strong>ory. Firstly, <strong>the</strong> transplantation is extremely commonboth <strong>of</strong> individual rules and <strong>of</strong> a large part <strong>of</strong> a legal system in early times and in<strong>the</strong> present day. Secondly, transplanting is <strong>the</strong> most fertile source <strong>of</strong> legaldevelopment, both for individual rules and for systematics. Thirdly, law is sodeeply rooted in <strong>the</strong> past, that some institutions <strong>of</strong> modern law (such as Romanconcept <strong>of</strong> sale) are still based upon it, being just slightly modified. Fourthly, <strong>the</strong>transplanting <strong>of</strong> legal rules is not a complicated process, and it is socially easy,so that in periods <strong>of</strong> legal reforms borrowings are frequent. Fifthly, a voluntarytransplantation almost always involves a change in <strong>the</strong> law, which can be dependenton many factors, such as climate, economic conditions, religious outlook or evenchance (making in that way a kind <strong>of</strong> compromise with <strong>the</strong> historical schoolconcept <strong>of</strong> <strong>the</strong> ”spirit <strong>of</strong> people”). Sixthly, no area <strong>of</strong> private law is resistant tochange as a result <strong>of</strong> 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 <strong>the</strong>receiving society is much less advanced materially and culturally than <strong>the</strong> donorsystem. Ninthly, foreign law can be influential even when it is totally misunderstood.As an example he mentions a famous Montesquieu doctrine <strong>of</strong> separation <strong>of</strong>powers: ”It is much disputed whe<strong>the</strong>r Montesquieu actually misunderstood <strong>the</strong>English constitution or was constructing an ideal constitution with England asits source. However this may be, his views were <strong>of</strong> fundamental importance to<strong>the</strong> framers <strong>of</strong> <strong>the</strong> <strong>American</strong> constitution though <strong>the</strong>y were under no illusion asto <strong>the</strong> true nature <strong>of</strong> <strong>the</strong> English constitution” (p.99). Tenthly, transplantation isstrongly affected by influence <strong>of</strong> 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 o<strong>the</strong>r matters in <strong>the</strong> society.Twelfthly, legal rules are invented by a few people or nations, but once invented<strong>the</strong>ir value can readily be appreciated, and <strong>the</strong> rules adopted. Thir<strong>the</strong>enthly,
232Dragutin Avramovićsome peoples have been vitally important for <strong>the</strong> development <strong>of</strong> private law,like Romans and English.Finally in <strong>the</strong> chapter ”Afterword”, which appears in <strong>the</strong> second, 1993edition (<strong>the</strong> one that is translated into Serbian), Watson responses to criticismsthat has emerged after <strong>the</strong> 1974 book. He firmly defends his attitude, addingnew arguments in its favor, and a few extra points. One <strong>of</strong> <strong>the</strong> most strikingones is importance <strong>of</strong> availability <strong>of</strong> 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 <strong>the</strong> final chapterWatson also stresses <strong>the</strong> practical dimension <strong>of</strong> his <strong>the</strong>oretical attitude: ”Myprimary aims in Legal Transplants were to set <strong>the</strong> bounds <strong>of</strong> Comparative Lawas an academic discipline and to see what could be learned from it. But <strong>the</strong>study turns out to have a practical dimension. If borrowing is <strong>the</strong> main way lawdevelops, and if <strong>the</strong> lawmaking elite is bound by its legal culture, and if thisculture is restricted by what <strong>the</strong> elite does not know, <strong>the</strong>n it follows that <strong>the</strong>quality <strong>of</strong> legal education, including exposure to Comparative Law (where thatoccurs), plays a powerful role in law reform” (p. 118).This <strong>the</strong>ory has provoked huge reactions among scholars. One <strong>of</strong> <strong>the</strong> mostsevere opponents W. Evan says: ”In short, <strong>the</strong>re is ample reason to question <strong>the</strong>validity <strong>of</strong> Watson’s <strong>the</strong>sis on legal change and legal evolution. This is indeedimportant for <strong>the</strong> sociology <strong>of</strong> law because <strong>the</strong> corpus <strong>of</strong> Watson’s work may beinterpreted as undermining <strong>the</strong> rationale for developing a <strong>the</strong>ory <strong>of</strong> law andsociety”. 5 However, never<strong>the</strong>less Watson’s <strong>the</strong>ory looks like revolutionary andextravagant, he partially relayed upon ideas <strong>of</strong> o<strong>the</strong>r authors, such as RoscoePound, who stated many years ago: ”History <strong>of</strong> a system <strong>of</strong> law is largely a history<strong>of</strong> borrowings <strong>of</strong> legal materials from o<strong>the</strong>r legal systems and <strong>of</strong> assimilation <strong>of</strong>materials from outside <strong>of</strong> <strong>the</strong> law”. 6 Similar thoughts appeared in an olderliterature: already Jeremy Bentham developed a number <strong>of</strong> utilitarian principlesproper for transplantation purposes, on occasion <strong>of</strong> adapting English legalsystem to <strong>the</strong> law <strong>of</strong> Bengal. 7Besides, Watson’s basic concept is close to an idea <strong>of</strong> acculturation developedin sociological <strong>the</strong>ory, and in particularly to perspective <strong>of</strong> legal acculturation,comprehending grafting <strong>of</strong> one (legal) culture to ano<strong>the</strong>r (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 <strong>the</strong>irtransformation into civilization, it can be generally related to legal systemsin general. Majority <strong>of</strong> scholars are <strong>of</strong> 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 <strong>of</strong> <strong>the</strong> transplanted element. 8 Since <strong>the</strong> 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 <strong>of</strong> <strong>the</strong> mostimpressive transplant – one <strong>of</strong> <strong>the</strong> Swiss Civil Code in 1926 Turkey, which tookplace mostly due to fact that <strong>the</strong>n Turkish Minister <strong>of</strong> Justice Mahmut EsadBozkurt studied law in Switzerland (p. 115) – Watson neglects <strong>the</strong> fact that even<strong>the</strong>re a certain kind <strong>of</strong> ”rejection <strong>of</strong> foreign body” had to appear. Namely,according to standards <strong>of</strong> Swiss model <strong>the</strong> marriageable age in <strong>the</strong> TurkishCode was posted at 20 years for men and 18 years for women, but by a strongpressure <strong>of</strong> social needs it was reduced to ages <strong>of</strong> 17 and 15 in 1938. All marriagesconcluded previously according to customary law, contrary to <strong>the</strong> Code, wereconvalidated. But, to be true, Watson himself pays a significant <strong>the</strong>oreticalimportance to <strong>the</strong> ”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 nei<strong>the</strong>r economic factors, nor determination<strong>of</strong> law by social circumstances. With his view he step far away from previousparticular observations on <strong>the</strong>oretical importance <strong>of</strong> reception <strong>of</strong> law, which is anotorious historical phenomenon, which can not be neglected (starting with <strong>the</strong>most famous example <strong>of</strong> Roman Law reception 10 ). One <strong>of</strong> his advantages is tha<strong>the</strong> based his <strong>the</strong>ory <strong>of</strong> legal development upon extraordinary rich historicalmaterial, as well as on his comprehensive and detailed knowledge both <strong>of</strong>8J. Carbonnier, 197.9J. Carnonnier, 194.10One should differ notions <strong>of</strong> receptions in legal history and sociological concept <strong>of</strong>acculturation. While reception usually comprehends acceptance <strong>of</strong> a legal system as a whole,legal acculturation usually refers to acceptance <strong>of</strong> particular legal institutions.
234Dragutin AvramovićCommon Law and <strong>of</strong> Civil Law legal system. Specific value <strong>of</strong> his view, <strong>of</strong>tenneglected by critics, is his compromising attitude towards evolutionary <strong>the</strong>ory.For, Watson does not ignore importance <strong>of</strong> different factors potentially influencinglaw-making processes. He only stresses importance <strong>of</strong> transplantation impactand considers it decisive in some cases, depending on specific social and historicalcircumstances. Never<strong>the</strong>less numerous criticisms, such a compromising attitudeleads basically to a certain kind <strong>of</strong> integral comprehension <strong>of</strong> law origin. Thisfact is rarely mentioned in literature, stressing mostly Watson’s weaknessesby insisting on legal transplants significance. Opponents usually emphasize hisappraisal <strong>of</strong> a pure chance and <strong>of</strong> misunderstandings in transplantation processes,accusing him for introduction <strong>of</strong> voluntarism and absence <strong>of</strong> 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 <strong>of</strong> elements respected by Watson in explaining legal changes,and legal transplants are in general quite properly balanced with o<strong>the</strong>r factors <strong>of</strong>legal development.
VThe Legal and Political System <strong>of</strong> <strong>the</strong> USA1 Pr<strong>of</strong>. Dragan Bataveljić, PhDFaculty <strong>of</strong> Law, Kragujevac, SerbiaConteporary Constitutional System in <strong>the</strong> United States<strong>of</strong> America2 Ivana Tucak, LL.M, AssistantFaculty <strong>of</strong> Law, Osijek, CroatiaA Theory <strong>of</strong> Sovereignty Under <strong>the</strong> Federal Constitution3 Gordana Mitrović, LL.MNovi Sad, SerbiaRobert Nozick: Anarchy, State and Utopia
1 Pr<strong>of</strong>. Dragan Bataveljić, PhDFaculty <strong>of</strong> Law, Kragujevac, SerbiaCONTEMPORARY CONSTITUTIONAL SYSTEMIN THE UNITED STATES OF AMERICAAbstract: In <strong>the</strong> opening paragraphs, author calls attention on creationand historical development <strong>of</strong> <strong>the</strong> first and most illustrious <strong>of</strong> federations in <strong>the</strong>USA. Constitution <strong>of</strong> <strong>the</strong> United States, ratified in 1787., owing to its original andinovative approach is generally considered a doyen among all o<strong>the</strong>r constitutions<strong>of</strong> <strong>the</strong> world. Fur<strong>the</strong>rmore, principle <strong>of</strong> separation <strong>of</strong> powers is treated in somedetail, in its ’rigid’ form which represents a basis for organisation <strong>of</strong> powersaccording to <strong>the</strong> U.S. Constitution. Original presidential system, constitutionallyestablished in 1787., deserves, being stable yet complex system <strong>of</strong> government,prominent position in <strong>the</strong> U.S. Constitution analysis. Essay also contains analyses<strong>of</strong> legislative, executive and judiciary powers in <strong>the</strong>ir own merits, whilst specificattention is drawn upon <strong>the</strong> relation between legislative and judiciary powers <strong>of</strong>government.Key words: USA, Constitution, branches <strong>of</strong> government, judiciary power,executive power, legislative power, Congress, President <strong>of</strong> <strong>the</strong> USA, House <strong>of</strong>Representatives, Cabinet, impeachment, Supreme Court, right <strong>of</strong> vetoIntroductionNorth <strong>American</strong> continent was discovered in late XV century, and had beenpopulated slowly, mostly by European newcomers. The process <strong>of</strong> populating<strong>the</strong> country started as early as XVI century and continued, with increasingintensity, during XVII century, <strong>the</strong> biggest source <strong>of</strong> 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 <strong>of</strong> greatBritish Empire; first thus founded colony was Virginia in 1607., and <strong>the</strong> last one
238Dragan Bataveljićwas Georgia in 1732. All colonies shared similar organisational structure, withcertain, more or less subtle, differences: <strong>the</strong> head <strong>of</strong> executive power was governor,appointed in London 1 ; a sort <strong>of</strong> legislative power was exercised by a body <strong>of</strong>representatives, and judiciary power was identical in all areas and draftedaccording to its English precursor. The local government was an exact copy <strong>of</strong>its British counterpart, complemented with town meetings as a form <strong>of</strong> directdemocracy, whilst common law enjoyed same level <strong>of</strong> esteem as in England.Due to <strong>the</strong> great distance and difficulties in communication, as well asincreasing antagonism against English crown which tried to impose new taxesand effectively limit <strong>the</strong> freedom <strong>of</strong> trade, spirits got stirred in <strong>the</strong> colonies. Sucha state led to meeting <strong>the</strong> so-called First Continental Congres in Philadelphia in1774., composed <strong>of</strong> <strong>the</strong> representatives <strong>of</strong> thirteen <strong>American</strong> colonies, and inturn provided for <strong>the</strong> Second Continental Congres in 1775. The SecondCongress deliberated a decision to declare war on <strong>the</strong> British Empire, whilst on4 th July 1776. <strong>the</strong> famous Declaration <strong>of</strong> Independence was adopted. TheDeclaration proclaimed 13 colonies independent and war <strong>of</strong> 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 <strong>of</strong> its former <strong>American</strong> colonies. In <strong>the</strong> meantime, <strong>the</strong> SecondContinental Congress formally established a loose confederation by passing <strong>the</strong>Articles <strong>of</strong> Confederation and Perpetual Union. The document became effectiveduring 1777., but was eventuall ratified by all states no sooner than 1781.During <strong>the</strong> course <strong>of</strong> year 1780. all thirteen newly founded states adopted<strong>the</strong>ir own Constitutions which <strong>of</strong>ten displayed numerous differences, but allproclaimed notion that authority dwelled in people and <strong>the</strong> organisation <strong>of</strong>powers was to be separated into legislative, executive and judicial branches. 2Constitutions <strong>of</strong> Massachusetts and Pennsylvania were used as prototypes for<strong>the</strong> Constitution <strong>of</strong> United States since <strong>American</strong> confederation functioned asra<strong>the</strong>r loose organisation and weak tie among <strong>the</strong> states. Many practical obstaclesto seamless functioning <strong>of</strong> <strong>the</strong> Confederation provoked all states to reachunanimous decision and call for constitutional assembly in 1787. in Philadelphia;<strong>the</strong> assembly not only surpassed its initial taks <strong>of</strong> revising <strong>the</strong> Articles <strong>of</strong>1 The colonies were located some 3000 miles away from London, <strong>the</strong> only availabletransportation having been sailboat, journey on which could last for several weeks.2 It should be, however, noted most <strong>of</strong> <strong>the</strong> constitutions gave precedence to legislative overexecutive powers, <strong>the</strong> main representative <strong>of</strong> latter being <strong>the</strong> governor.
Contemporary Constitutional System in <strong>the</strong> United States <strong>of</strong> America 239Confederation, but managed to adopt and ratify new Constitution, a doyenamong constitutions <strong>of</strong> <strong>the</strong> world and presently in effect in all fifty states,containing only 27 amendments.Name and flag <strong>of</strong> <strong>the</strong> United States <strong>of</strong> America represent <strong>the</strong> federalcharacter <strong>of</strong> <strong>the</strong> <strong>American</strong> state. The notion <strong>of</strong> ”federal state” indicates <strong>the</strong>presence <strong>of</strong> political system equally distributed among <strong>the</strong> constituent states,effectively making <strong>the</strong>m on <strong>the</strong> one hand independent decision centres and on<strong>the</strong> o<strong>the</strong>r mutually influential participants, thus improving <strong>the</strong> ”commoninterest” <strong>of</strong> a nation.Principle <strong>of</strong> Separation <strong>of</strong> PowersDoctrine concerning separation <strong>of</strong> powers originates from such works as”Two Treatises <strong>of</strong> Government” and ”The Spirit <strong>of</strong> <strong>the</strong> Laws”. Authors are JohnLock and Charles Montesqieu, respectively, <strong>the</strong> latter one generally beingconsidered <strong>the</strong> founder <strong>of</strong> <strong>the</strong> doctrine <strong>of</strong> separation <strong>of</strong> powers.First written Constitution on <strong>the</strong> <strong>American</strong> soil was passed on June 29 th1776. by general convention <strong>of</strong> state <strong>of</strong> Virgina, which contained in its thirdparagraph <strong>the</strong> most precise and clear statement defining separation <strong>of</strong> powers,save <strong>the</strong> anteceding English ”Instrument <strong>of</strong> Government”. Acording to <strong>the</strong>paragraph, ”<strong>the</strong> legislative, executive, and judiciary department, shall be separateand distinct, so that nei<strong>the</strong>r exercise <strong>the</strong> powers properly belonging to <strong>the</strong>o<strong>the</strong>r... except that <strong>the</strong> Justices <strong>of</strong> <strong>the</strong> County Courts shall be eligible to ei<strong>the</strong>rHouse <strong>of</strong> Assembly.” 3 The principle <strong>of</strong> separation <strong>of</strong> powers was also includedin <strong>the</strong> constitutions <strong>of</strong> Pennsylvania (1776), North Carolina (1776), Georgia(1777), New Hampshire (1777), Massachusetts (1780) and Vermont (1784).However, separation <strong>of</strong> powers was primarily exercised and acknowledgedin verbal form! In spite <strong>of</strong> normative separation <strong>of</strong> state functions into legislative,executive and judiciary and <strong>the</strong>ir distribution onto three distinct bodies, doctrine<strong>of</strong> separation <strong>of</strong> powers meant very little in <strong>the</strong> period from 1776-1789., since<strong>the</strong> version <strong>of</strong> pure separation <strong>of</strong> powers was adopted which left no place forany sort <strong>of</strong> controlling or ballancing mechanism.USA had got <strong>the</strong>ir first Constitution in 1787. The Constitution affirmed<strong>the</strong> principle <strong>of</strong> separation <strong>of</strong> powes despite <strong>the</strong> lack <strong>of</strong> any specific provisions3 Sources and Documents Illustrating <strong>the</strong> <strong>American</strong> Revolution 1764-1788, 1970., text <strong>of</strong>Constitution <strong>of</strong> Virginia, p. 152
240Dragan Bataveljićdefining it. Three opening articles outlined legislative, executive and judicialbranches <strong>of</strong> power in such manner that ”all legislative powers herein grantedshall be vested in a Congress <strong>of</strong> <strong>the</strong> United States, which shall consist <strong>of</strong> aSenate and House <strong>of</strong> Representatives” (article 1), ”<strong>the</strong> executive power shall bevested in a President <strong>of</strong> <strong>the</strong> United States <strong>of</strong> America” (article 2), whilst ”<strong>the</strong>judicial power <strong>of</strong> <strong>the</strong> United States shall be vested in one Supreme Court”(article 3). 4The main <strong>American</strong> contribution to European <strong>the</strong>ory <strong>of</strong> separation <strong>of</strong>powers lies, principally, in <strong>the</strong> idea people is not only represented by legislativebut also head <strong>of</strong> executive power, <strong>the</strong>refore underscoring <strong>the</strong> importance <strong>of</strong>executive power representatives being chosen by people in <strong>the</strong> identical mannerlegislative ones are. Ano<strong>the</strong>r, distinctly <strong>American</strong> contribution to <strong>the</strong> doctrine<strong>of</strong> separation <strong>of</strong> powers is represented by its emphasis on <strong>the</strong> judicial branchindependence. In addition, separation <strong>of</strong> powers is necessary prerequisite tojudiciary control <strong>of</strong> <strong>the</strong> constitutionality <strong>of</strong> <strong>the</strong> law which depended on <strong>the</strong>acceptance <strong>of</strong> <strong>the</strong> idea <strong>of</strong> ”checks and balances”, important obstacles to wrongfulexercise <strong>of</strong> power and authority.Strict separation <strong>of</strong> powers excluded any possibility for judiciary control<strong>of</strong> <strong>the</strong> constitutionality <strong>of</strong> <strong>the</strong> law as it would ensue from <strong>the</strong> ”checks andbalances” principle, according to <strong>American</strong> constitution. In <strong>the</strong> USA, ”pure”doctrine <strong>of</strong> separation <strong>of</strong> powers was fugacious as a result <strong>of</strong> breakage withtraditional forms <strong>of</strong> power, hence <strong>the</strong> doctrine was swiftly substituted with <strong>the</strong>emerging ”checks and balances” principle, whilst in France <strong>the</strong> changes wouldoccur no sooner than 1814. and 1848. The reason for such development lies in<strong>the</strong> fact USA had no troubles with monarchy and aristocracy, since <strong>the</strong>re hadbeen no feudalism in its history. America was an ”empty” country, having noneed to disrupt any form <strong>of</strong> feudal, but only foreign colonial regime. On <strong>the</strong>o<strong>the</strong>r hand, ”pure” doctrine <strong>of</strong> separation <strong>of</strong> powers could have never been fullyexploited in France.What were <strong>the</strong> circumstances instigating <strong>the</strong> development <strong>of</strong> doctrine <strong>of</strong>separation <strong>of</strong> powers in its ”pure” form, both in XVIII century America andFrance?Ergo, <strong>the</strong>ory <strong>of</strong> separation <strong>of</strong> powers was widely adopted and applied inconstitutions <strong>of</strong> many countries. The Constitution <strong>of</strong> <strong>the</strong> USA had been practically4 Excerpts <strong>of</strong> <strong>the</strong> original US Constitution text – B.Mitchell – L.Mitchell: ”A Biography <strong>of</strong><strong>the</strong> Constitution <strong>of</strong> <strong>the</strong> United States”, 1964, Art. I, II, III.
Contemporary Constitutional System in <strong>the</strong> United States <strong>of</strong> America 241applying <strong>the</strong> principle, building its presidential system on it and thus, side byside with <strong>the</strong> representative body, establishing a very strong executive branch(embodied in <strong>the</strong> institution <strong>of</strong> Presidency) and independent judiciary. Theprinciple <strong>of</strong> separation <strong>of</strong> powers found fertile ground in many European countries<strong>the</strong>re<strong>of</strong>. Declaration <strong>of</strong> <strong>the</strong> Rights <strong>of</strong> Man and <strong>of</strong> <strong>the</strong> Citizen (1789) was first toproclaim ”a society in which <strong>the</strong> observance <strong>of</strong> <strong>the</strong> law is not assured, nor <strong>the</strong>separation <strong>of</strong> powers defined, has no constitution at all.”Stable Yet Complex System <strong>of</strong> GovernmentConstitution <strong>of</strong> <strong>the</strong> USA does not have a single mention <strong>of</strong> <strong>the</strong> word”democratic”. At <strong>the</strong> time, <strong>the</strong> adjective conveyed <strong>the</strong> meaning <strong>of</strong> directdemocracy, <strong>the</strong> one exercised in ancient city-states and which is still in power incertain Swiss cantons. <strong>American</strong> 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 <strong>the</strong>course <strong>of</strong> <strong>American</strong> history as perpetual cyclic vicissitude between precedence<strong>of</strong> Capitol, at one point, and White House, at ano<strong>the</strong>r.Legislative PowerEven though Constitution <strong>of</strong> <strong>the</strong> USA did not formulate <strong>the</strong> principle <strong>of</strong>separation <strong>of</strong> powers explicitly it has been, however, implemented in an obviousfashion. Namely, <strong>the</strong> principle can be distinguished in <strong>the</strong> strict separation <strong>of</strong>jurisdictions among legislative, executive and judiciary powers, ie. main holders<strong>of</strong> <strong>the</strong> three – Congress, President and Supreme Court. Separation is performedin rigid way, so none <strong>of</strong> <strong>the</strong> three branches could interfere with <strong>the</strong> proceedings<strong>of</strong> o<strong>the</strong>r two. However, since <strong>the</strong> concetration <strong>of</strong> powers cannot be exercised to<strong>the</strong> full extent nei<strong>the</strong>r could <strong>the</strong> separation <strong>of</strong> powers be performed literally. Thisindicates <strong>the</strong> absolute separation <strong>of</strong> <strong>the</strong> three branches <strong>of</strong> power does not exist,since <strong>the</strong>re are various mechanisms which would prevent any <strong>of</strong> <strong>the</strong> branchesfrom gaining inappropriately high level <strong>of</strong> independence, thus making <strong>the</strong>usurpation <strong>of</strong> jurisdictions practically impossible.At this point it must be, however, noted that in spite <strong>of</strong> widespreadacceptance and bicentennial usage <strong>of</strong> this system <strong>of</strong> government, certain and
242Dragan Bataveljićinevitable modifications occurred during <strong>the</strong> period. System <strong>of</strong> government in<strong>the</strong> USA is stable, yet complex system. Certain phases <strong>of</strong> development <strong>of</strong> <strong>the</strong> USAwere charactarised by predominance <strong>of</strong> Congress, ie. legislative powers, o<strong>the</strong>rsby predominance <strong>of</strong> President, ie. executive power and <strong>the</strong>re were periods whenSupreme Court, ie. judiciary power, prevailed in influence. 5First article <strong>of</strong> <strong>the</strong> Constitution vests all legislative power in Congress <strong>of</strong> <strong>the</strong>United States, which is to hold sessions at least once a year on <strong>the</strong> first Mondayin December unless o<strong>the</strong>r meeting day is specifically ascertained. Congress iscomposed <strong>of</strong> Senate and House <strong>of</strong> Representatives. Such bicameral structure <strong>of</strong><strong>the</strong> supreme legislative body is shaped by <strong>the</strong> political system – federalism. USAconstitute a federation which, in fact, function as a state union <strong>of</strong> both citizensand federal units; citizens are represented in eponymous House <strong>of</strong> Representatives,whilst federal units vest <strong>the</strong>ir power in Senate.House <strong>of</strong> Representatives consists <strong>of</strong> 435 members (delegates), eachrepresenting a congressional district and serving a two-year term, whilst <strong>the</strong>terms are staggered so that approximately one half <strong>of</strong> <strong>the</strong> seats are up for electionsemiannually. 6 Certain conditions are imposed on potential candidates, insomuchno one can be eligible for <strong>of</strong>fice unless 25 years <strong>of</strong> age, a citizen <strong>of</strong> <strong>the</strong> UnitedStates for at least 7 years, and a resident in <strong>the</strong> state he or she represents at <strong>the</strong>time <strong>of</strong> election.According to <strong>the</strong> Article I <strong>of</strong> <strong>the</strong> Constitution each state is equallyrepresented by two members in <strong>the</strong> Senate, who are elected to a 6-year term bya legislative branch <strong>of</strong> government, with each senator having one vote. Certainrequirements must be met in this case too: a Senator must be 30 years <strong>of</strong> age, acitizen <strong>of</strong> <strong>the</strong> United States for past 9 years, and must reside in <strong>the</strong> state he orshe seek to represent at <strong>the</strong> time <strong>of</strong> election. The Vice President <strong>of</strong> <strong>the</strong> UnitedStates is <strong>the</strong> President <strong>of</strong> <strong>the</strong> Senate and serves as its presiding <strong>of</strong>ficer, 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 <strong>the</strong> total <strong>of</strong> 50), voted for on general elections toa 6-year term, it indicates <strong>the</strong> Senate consists <strong>of</strong> one hunderd Senators.There is one distinct pseudojudicial parliamentary role <strong>of</strong> <strong>the</strong> Senate,which has its origins in <strong>the</strong> XIV century law <strong>of</strong> England and Wales. It is <strong>the</strong> so-5 Such occurrence is called courtocracy.6 This provides a continuity <strong>of</strong> action in House <strong>of</strong> Representatives
Contemporary Constitutional System in <strong>the</strong> United States <strong>of</strong> America 243called impeachment, which vests an exclusive power in Senate to prosecute andadjudicate <strong>the</strong> United State <strong>of</strong>ficials (’<strong>of</strong>ficers’).By contrast, in <strong>the</strong> case <strong>of</strong> <strong>the</strong> impeachment <strong>of</strong> a President <strong>the</strong> Chief Justice<strong>of</strong> <strong>the</strong> United States presides over <strong>the</strong> proceedings, yet in order to convict<strong>the</strong> accused a two-thirds supermajority <strong>of</strong> <strong>the</strong> senators present is required.Impeachment, ie. disqualification, automatically removes <strong>the</strong> defendant from<strong>of</strong>fice and terminates his or hers privileges. Following conviction, <strong>the</strong> Senate mayvote to fur<strong>the</strong>r punish <strong>the</strong> individual by barring <strong>the</strong>m from holding future federal<strong>of</strong>fice (ei<strong>the</strong>r elected or appointed), but cannot engage any fur<strong>the</strong>r. Despite aconviction by <strong>the</strong> Senate, <strong>the</strong> defendant remains liable to criminal prosecution.Members <strong>of</strong> Senate and House <strong>of</strong> Representatives receive compensationfor <strong>the</strong>ir services, as ascertained by law, which is remunerated by U.S. Treasury.Also, <strong>the</strong>y enjoy immunity in all cases, except Treason, Felony and Breach <strong>of</strong><strong>the</strong> Peace, and are privileged from arrest during <strong>the</strong>ir attendance at <strong>the</strong> Session<strong>of</strong> <strong>the</strong> respective Houses, and in going to and returning from <strong>the</strong> same. Fur<strong>the</strong>r,Senators and representatives cannot be held liable to legal action for anything <strong>the</strong>ysaid or opined during Sessions. However, <strong>the</strong>y are also subject to incompatibility– none <strong>of</strong> senators nor representatives are allowed, whilst holding <strong>of</strong>fice, to beengaged in any public service <strong>of</strong> <strong>the</strong> U.S. government which would be specificallycreated for <strong>the</strong>m, or make possible for <strong>the</strong>ir income to increase during thattime. Likewise, none <strong>of</strong> <strong>the</strong> <strong>of</strong>ficers <strong>of</strong> <strong>the</strong> U.S. government cannot be elected toany <strong>of</strong> two Houses during <strong>the</strong>ir service.Powers <strong>of</strong> 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 <strong>of</strong> people <strong>of</strong> <strong>the</strong> USA- to establish courts inferior to <strong>the</strong> Supreme Court- to raise and maintain an army and navy and to declare warWithout <strong>the</strong> consent <strong>of</strong> Congress nei<strong>the</strong>r <strong>of</strong> states may assess taxes; passexpropriation bills nor laws; coin nor issue money; enter into any agreement orcompact with ano<strong>the</strong>r State, or with a foreign power, or engage in war, unlessactually invaded, or in such imminent danger as will not admit <strong>of</strong> delay.7 It is important to emphasise that all taxes, duties, imposts and excises must be unifrom on<strong>the</strong> whole territory <strong>of</strong> <strong>the</strong> USA
244Dragan BataveljićNew states may be admitted by <strong>the</strong> Congress into <strong>the</strong> Union; but no newstates shall be formed or erected within <strong>the</strong> jurisdiction <strong>of</strong> any o<strong>the</strong>r state; norany state be formed by <strong>the</strong> junction <strong>of</strong> two or more states, or parts <strong>of</strong> states,without <strong>the</strong> consent <strong>of</strong> <strong>the</strong> legislatures <strong>of</strong> <strong>the</strong> states concerned as well as <strong>of</strong> <strong>the</strong>Congress. The Congress have power to dispose <strong>of</strong> and make all needful rulesand regulations respecting <strong>the</strong> territory or o<strong>the</strong>r property belonging to <strong>the</strong>United States.On <strong>the</strong> basis <strong>of</strong> abovementioned facts, we may safely conclude <strong>the</strong> Congresspossess ra<strong>the</strong>r extensive power. Primarily, Constitution granted <strong>the</strong> Congressall legislative authority and in turn Congress displayed successful exertion <strong>of</strong><strong>the</strong>ir constitutional rights. However, due to existence <strong>of</strong> a clause restricting <strong>the</strong>jurisdiction <strong>of</strong> state constitutions as well as federal clauses regarding <strong>the</strong> separation<strong>of</strong> powers, <strong>the</strong> course <strong>of</strong> time had proven Congress unable to perform its legislativeduties only by passing laws and exerting its constitutional prerogatives. This is <strong>the</strong>reason why Congress activated so-called ”additional rights”. Namely, accordingto <strong>the</strong> ”<strong>the</strong>ory <strong>of</strong> concealed powers”, which is implemented in practice, <strong>the</strong>highest legislative body <strong>of</strong> <strong>the</strong> USA is, if needed, allowed to ”perform legislativetasks on <strong>the</strong> federal level in o<strong>the</strong>r areas which are deemed necessary.The acceptance <strong>of</strong> <strong>the</strong>ory has increased <strong>the</strong> authority <strong>of</strong> Congress to <strong>the</strong>great extent...”In spite <strong>of</strong> <strong>the</strong> fact that many <strong>American</strong>s regard <strong>the</strong> power <strong>of</strong> Congressdecreasing, especially in XX century, <strong>American</strong> legislature is still considered ”<strong>the</strong>most powerful parliament in <strong>the</strong> world”, a ”working parliament” fully capable<strong>of</strong> exercising its autonomous legislative function and, in terms <strong>of</strong> restricting <strong>the</strong>usurpation <strong>of</strong> government, supervises and controls <strong>the</strong> executive power. Being a”working parliament”, autonomous in its functioning, Congress is in need <strong>of</strong>comprehensive, highly educated and skilled service and apparatus, as well ashigh level <strong>of</strong> specialisation. This is true for both Houses, numerous boards,commitees and subcommitees, including individual delegates and senators. Forthat reason, Library <strong>of</strong> Congress has made <strong>the</strong> best world library available to <strong>the</strong>Parliament. Fur<strong>the</strong>r, <strong>the</strong>re is <strong>the</strong> Congressional Research Service, a public policyresearch arm <strong>of</strong> <strong>the</strong> United States Congress, with more than 800 activists.Executive PowerAlmost entire executive power is vested in <strong>the</strong> President <strong>of</strong> <strong>the</strong> USA byArticle II <strong>of</strong> <strong>the</strong> Constitution <strong>of</strong> <strong>the</strong> United States <strong>of</strong> America. President holds
Contemporary Constitutional System in <strong>the</strong> United States <strong>of</strong> America 245his <strong>of</strong>fice during <strong>the</strong> term <strong>of</strong> four years toge<strong>the</strong>r with <strong>the</strong> Vice-President chosenfor <strong>the</strong> same term, <strong>the</strong> method <strong>of</strong> electing <strong>the</strong>m being ra<strong>the</strong>r complex andunique for <strong>the</strong> USA. It is so-called electoral system: in <strong>the</strong> USA, <strong>the</strong> President andVice President are chosen by Electoral college, composed <strong>of</strong> electors. Namely,each state legislature may choose as many electors as representatives and senatorsrepresented it in Congress. No senators, representatives or federal <strong>of</strong>ficers maybecome electors. Ergo, President is chosen by electors, with each state producingas many electors as representatives and senators: <strong>the</strong> least number being 3 (twosenators and at least one representative). There is a total <strong>of</strong> 535 electoral places:100 for senators, 435 for representatives and 3 electors <strong>of</strong> District <strong>of</strong> Columbia.The capital Washington is not represented in Congress, but falls under <strong>the</strong>jurisdiction <strong>of</strong> Congress being a federal district. Every presidential candidate seekto attract <strong>the</strong> votes <strong>of</strong> <strong>the</strong> states with many delegates in House <strong>of</strong> Representatives,thus many elecotors, as are California and Texas with 32, New York with 33 orIllinois with 22 <strong>of</strong> <strong>the</strong>m. The numbers are subject to change every 10 years, incase number <strong>of</strong> inhabitants has increased over <strong>the</strong> time.The electors meet in <strong>the</strong>ir respective states to cast ballots for <strong>the</strong> Presidentand Vice President, at least one <strong>of</strong> <strong>the</strong> candidates not being <strong>the</strong> resident <strong>of</strong> <strong>the</strong> states<strong>the</strong>y reside in. Thus a list <strong>of</strong> nominees voted for will be produced, equipped withstatistics showing <strong>the</strong> number <strong>of</strong> votes each <strong>of</strong> <strong>the</strong>m got. The list – signed, verifiedand sealed – will <strong>the</strong>n be dispatched to <strong>the</strong> President <strong>of</strong> <strong>the</strong> Senate, who would inturn publicly unseal and display <strong>the</strong> lists in presence <strong>of</strong> Senate and House <strong>of</strong>Representatives. The individual with <strong>the</strong> greatest number <strong>of</strong> votes (if such anumber represented a majority <strong>of</strong> electors) became President, and <strong>the</strong> runner-upbecame Vice President. In case <strong>of</strong> a tie, <strong>the</strong> House <strong>of</strong> Representatives could chooseone <strong>of</strong> <strong>the</strong> candidates; if no person received a majority, <strong>the</strong>n <strong>the</strong> House could againchoose from amongst <strong>the</strong> five with <strong>the</strong> greatest number <strong>of</strong> votes.Obiously, <strong>the</strong> procedure is ra<strong>the</strong>r complicated; <strong>the</strong> Founding Fa<strong>the</strong>rs, in<strong>the</strong> well-known work ”The Federalist” outlined political justification <strong>of</strong> suchprocedure by asserting it would be ”as unnatural to refer <strong>the</strong> choice <strong>of</strong> propercharacter for a chief magistrate to <strong>the</strong> people, as it would to refer a trial <strong>of</strong> colorsto a blind man.”The President <strong>of</strong> <strong>the</strong> United States <strong>of</strong> America is <strong>the</strong> head <strong>of</strong> state <strong>of</strong> <strong>the</strong>United States, <strong>the</strong> chief executive <strong>of</strong> <strong>the</strong> federal government and Commander--in-Chief <strong>of</strong> <strong>the</strong> armed forces and <strong>of</strong> such part <strong>of</strong> <strong>the</strong> militia <strong>of</strong> <strong>the</strong> nation as bylegislative provision may be called into <strong>the</strong> actual service <strong>of</strong> <strong>the</strong> Union. Thepresident can issue rules, regulations, and instructions called executive orders
246Dragan Bataveljićwhich have <strong>the</strong> binding force <strong>of</strong> law upon federal agencies but do not requirecongressional approval. Ano<strong>the</strong>r significant power <strong>of</strong> US President is that <strong>of</strong>granting a full or conditional pardon to anyone convicted <strong>of</strong> breaking a federallaw — except in a case <strong>of</strong> impeachment. The pardoning power has come toembrace <strong>the</strong> power to shorten prison terms and reduce sentences. The Presidentis <strong>the</strong> federal <strong>of</strong>ficial primarily responsible for <strong>the</strong> relations <strong>of</strong> <strong>the</strong> United Stateswith foreign nations. He appoints ambassadors, ministers, and consuls — subjectto confirmation by <strong>the</strong> Senate — and receives foreign ambassadors and o<strong>the</strong>rpublic <strong>of</strong>ficials; nominate federal judges, including members <strong>of</strong> <strong>the</strong> SupremeCourt and all o<strong>the</strong>r US <strong>of</strong>ficials, unless o<strong>the</strong>rwise indicated by provisions <strong>of</strong><strong>the</strong> Constitution; he manages national affairs and <strong>the</strong> workings <strong>of</strong> <strong>the</strong> federalgovernment, et al.It is safe to conclude <strong>the</strong> institution <strong>of</strong> President encompasses broadpowers; however, he could only operate successfully had he, besides his Vice-President, been equipped with well organised concatenation <strong>of</strong> institutions <strong>of</strong>executive powers. Therefore, <strong>the</strong> President is surrounded by a number <strong>of</strong> personaladvisors for all his duties, which have, in time, developed into presidentialinstitutions:1. Cabinet, consisting <strong>of</strong> <strong>the</strong> 14 heads <strong>of</strong> federal executive departments(secretaries, ie. ministers)2. Executive Office <strong>of</strong> <strong>the</strong> PresidentBecause <strong>of</strong> <strong>the</strong> vast array <strong>of</strong> presidential roles and responsibilities, certainrestrictions are imposed on his <strong>of</strong>fice, such as limit to <strong>the</strong> duration <strong>of</strong> his termon four years, with George Washington saying none <strong>of</strong> <strong>American</strong> citizens shouldhold presidential <strong>of</strong>fice 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 in<strong>of</strong>fice, thus breaking this previously unwritten constitutional rule.Judicial PowerFree and lawfull judicature is one <strong>of</strong> corner-stones <strong>of</strong> <strong>American</strong>constitutionality. Namely, <strong>the</strong> issues <strong>of</strong> courts, adjudication, laws and justicewere most seriously raised in earliest phase <strong>of</strong> development <strong>of</strong> <strong>American</strong> states,ie. English colonies. Given that all original states on <strong>American</strong> soil were underEnglish governance, that educated people mostly came from England and that
Contemporary Constitutional System in <strong>the</strong> United States <strong>of</strong> America 247settlers mostly spoke English as <strong>the</strong>ir first language, had logical result in Englishlaw having had predominance.Taking all <strong>the</strong>se facts into account, it is not hard to understand whyEuropean <strong>the</strong>orists <strong>of</strong> natural law exercised so strong an influence on FoundingFa<strong>the</strong>rs and makers <strong>of</strong> U.S. Constitution, who were convinced <strong>American</strong> societyand public would benefit greatly from separation <strong>of</strong> powers as form <strong>of</strong>government. Such system <strong>of</strong> government enabled judicial branch to become,alongside its executive and legislative counterparts, an equal power, establishedin <strong>the</strong> Constitution itself. In this fashion judicial branch became undisputable,authorative and irreplacable pillar in U.S. political system.<strong>American</strong> federalism, in conjuction with anglo-saxon tradition, createdjudicature ra<strong>the</strong>r difficult and arcane for a foreigner to grasp. Namely, two distinctvertical judicial systems emerged: federal judicature, a tripartite pyramid withSupreme Court <strong>of</strong> Justice, apellate instances and district courts on <strong>the</strong> one hand,and multipartite judicature <strong>of</strong> individual states on <strong>the</strong> o<strong>the</strong>r. Such situationleads to variety <strong>of</strong> legal interpretions, most <strong>of</strong> which are based on CommonLaw, which in turn is ignorant <strong>of</strong> any legal and regulatory codifications andsystematics specific to Roman Law, but induces actual law from previousadjudications, ie. earlier cases tried.The judicial power <strong>of</strong> <strong>the</strong> United States is vested in one Supreme Court,and in such inferior courts as <strong>the</strong> Congress may from time to time ordain andestablish. The Judges, both <strong>of</strong> <strong>the</strong> Supreme and inferior courts hold <strong>the</strong>ir <strong>of</strong>ficesduring good behavior and, at stated times, receive for <strong>the</strong>ir services a compensationwhich cannot be diminished during <strong>the</strong>ir continuance in <strong>of</strong>fice. The judicialpower shall extend to all cases, in law and equity, arising under <strong>the</strong> U.S.Constitution, <strong>the</strong> laws <strong>of</strong> <strong>the</strong> United States, and treaties made, or which shall bemade, under <strong>the</strong>ir authority; to all cases affecting ambassadors, o<strong>the</strong>r publicministers and consuls; to controversies to which <strong>the</strong> United States shall be aparty; to controversies between two or more states and between a state andcitizens <strong>of</strong> ano<strong>the</strong>r state.In all cases affecting ambassadors, o<strong>the</strong>r public ministers and consuls aswell as those in which any <strong>of</strong> <strong>the</strong> states shall be a party, Supreme Court holdsoriginal jurisdiction. In all o<strong>the</strong>r cases, aforementioned or hereby not mentioned,Supreme Court holds appelate jurisdiction. Processing <strong>of</strong> all criminal cases, save<strong>the</strong> impeachment, is conducted in <strong>the</strong> presence <strong>of</strong> jury. Such proceedings areconducted in <strong>the</strong> state where criminal act was commited, and if <strong>the</strong> act was not
248Dragan Bataveljićcommited on <strong>the</strong> territory <strong>of</strong> any <strong>of</strong> <strong>the</strong> states, trial will be held in <strong>the</strong> place orplaces decided on by Congress.Relation <strong>of</strong> Legislative and Executive PowersIt has been a well-known fact President <strong>of</strong> <strong>the</strong> USA is vested with muchgreater power than any o<strong>the</strong>r democratically elected president or prime minister,even though 1787. Constitution does not precisely define all presidential powershe does enjoy nowadays. Large extension <strong>of</strong> powers have taken place due tointerpretations <strong>of</strong> <strong>the</strong> Constitution by Supreme Court as well as practice <strong>of</strong> <strong>the</strong>President and Congress.United States <strong>of</strong> America exert <strong>the</strong> most prominent form <strong>of</strong> presidentialsystem, and we can recognise tendency <strong>of</strong> <strong>the</strong> Constitution to equalise Presidentand Congress. 8 However, both <strong>the</strong> Constitution and constitutional practicedetermined certain relation <strong>of</strong> <strong>the</strong> President and Congress. Namely, Montesqiuehimself, who developed <strong>the</strong> <strong>the</strong>ory <strong>of</strong> separation <strong>of</strong> powers to its fullest, in hisseminal work The Spirit <strong>of</strong> <strong>the</strong> Laws said branches <strong>of</strong> government were obligedto work in accordance, which means that <strong>the</strong>ir complete equality and pureseparation <strong>of</strong> powers would lead to paralysis <strong>of</strong> government. Relation <strong>of</strong> <strong>the</strong>three branches <strong>of</strong> power in U.S. presidential system is based on <strong>the</strong> principle <strong>of</strong>”checks and balances”, ie. interdependence exercised through coordination.Every legislative proposal approved by House <strong>of</strong> Representatives andSenate, prior to becoming law, must be submitted to <strong>the</strong> President. ThePresident may choose to sign <strong>the</strong> bill, <strong>the</strong>reby making it law. The President mayalso choose to veto <strong>the</strong> bill, returning it to Congress with his or her objections.In such a case, <strong>the</strong> bill only becomes law if each house <strong>of</strong> Congress votes tooverride <strong>the</strong> veto with a two-thirds majority.President and Congress exert different powers and are in relation <strong>of</strong> pureseparation <strong>of</strong> powers. Namely, <strong>the</strong> President during his term (and with <strong>the</strong>assisstance <strong>of</strong> his Cabinet) is exercising complete executive power, whilstCongress, being a legislative body, is exercising complete legislative power. Thiswould mean that, principally, nei<strong>the</strong>r could interfere with powers and functions<strong>of</strong> <strong>the</strong> o<strong>the</strong>r 9 nor could it decided upon <strong>the</strong> existence <strong>of</strong> <strong>the</strong> o<strong>the</strong>r (once elected,8 The tendency is to equalise both positions and functions <strong>of</strong> <strong>the</strong> two.9 E.g., <strong>the</strong> President cannot participate in legislative activities whilst Congressional cannotintervene in any aspect <strong>of</strong> Presidential, executive power
Contemporary Constitutional System in <strong>the</strong> United States <strong>of</strong> America 249every government organ is certain to stay in <strong>of</strong>fice for <strong>the</strong> duration <strong>of</strong> its term).President could not dismiss Congress, nor could Congress recall <strong>the</strong> President.The relation between <strong>the</strong> President and Congress is precisely outlined in<strong>the</strong> Constitution. However, long-lasting practice has defined and determined<strong>the</strong> relation in larger degree, so that a balance <strong>of</strong> powers has been created.Namely, in spite <strong>of</strong> not being responsible to Congress, but Constitution, <strong>the</strong>President is in a certain way related to Congress which is, in turn, tied to <strong>the</strong>President in regard to passing laws. Thus, even though President cannot be heldpoliticaly liable, Constitution holds him criminally liable and <strong>the</strong>refore subjectto impeachment. The lack <strong>of</strong> political liability empowers <strong>the</strong> President withability to make great many independent decisions, yet in case he is suspected tohave commited a criminal act – such as treason, bribery or o<strong>the</strong>r high crimesand misdemeanours – House <strong>of</strong> Representatives is allowed to initiate animpeachment proceedings whilst Senate conducts a trial. There have been threecases <strong>of</strong> impeachment proceedings against <strong>the</strong> President <strong>of</strong> <strong>the</strong> USA:- Andrew Johnson was impeached in 1868 after violating Tenure <strong>of</strong> OfficeAct. Johnson was acquitted <strong>of</strong> all charges by a single vote in <strong>the</strong> Senate.- Richard Nixon was in prospect <strong>of</strong> impeachment proceedings after <strong>the</strong>Watergate scandal (wiretapping). Nixon resigned prior to Houseconsideration <strong>of</strong> <strong>the</strong> impeachment resolutions.- Bill Clinton was impeached in 1998 by <strong>the</strong> House <strong>of</strong> Representatives ongrounds <strong>of</strong> perjury to a grand jury and obstruction <strong>of</strong> justice. He wasacquitted by <strong>the</strong> Senate.Fur<strong>the</strong>rmore, President is obliged to submit all sorts <strong>of</strong> his financialexpenses for Congress’ to inspect. Consent <strong>of</strong> Congress is necessary in all cases<strong>of</strong> appointment <strong>of</strong> President’s associates and in all important issues regardingforeign policy. Congress exercises influence over President by its sole function<strong>of</strong> enacting laws and approving budget, <strong>the</strong> upper house, ie. Senate having evenwider field <strong>of</strong> influence. Namely, <strong>the</strong> Senate may refuse to confirm any Presidentialappointments, even though such appointments are in Presidential power. Inrespect to this, so-called ”Senatorial courtesy” may occur – <strong>the</strong> President maynot continue with appointment for a federal <strong>of</strong>fice unless he sought ”advice andconsent” <strong>of</strong> <strong>the</strong> Senators from <strong>the</strong> state to which <strong>the</strong> appointment applies. Shouldit happen <strong>the</strong> Senators do not concur with President’s appointment or that hefailed to seek <strong>the</strong>ir ”advice and consent”, o<strong>the</strong>r Senators may, for <strong>the</strong> sake <strong>of</strong>solidarity, exert ”Senatorial courtesy” and deny <strong>the</strong> President <strong>the</strong>ir approval for<strong>the</strong> particular appointment.
250Dragan BataveljićPresident must also seek Senate’s approval in <strong>the</strong> matters <strong>of</strong> foreign policy,since its advice and consent is required to confirm <strong>the</strong> ratification <strong>of</strong> treaties.The Constitution gives <strong>the</strong> Senate <strong>the</strong> power to approve, by a two-thirds vote,treaties made by <strong>the</strong> President; having exercised this power <strong>of</strong> <strong>the</strong>irs, Senaterejected a few international treaties <strong>of</strong> great importance. 10 One might say <strong>the</strong>sepowers <strong>of</strong> restriction Congress possess are, actually, <strong>of</strong>fset to powers Presidenthas over Congress, so in an analogous fashion to <strong>the</strong> right <strong>of</strong> Presidential veto, a”Congressional veto” was established. It is a power <strong>of</strong> Congress over <strong>the</strong> President,enabling <strong>the</strong>m to block certain decisions <strong>of</strong> his.Regarding <strong>the</strong>ir relation in legislative area, it should be noted <strong>the</strong> Presidentadopts <strong>the</strong> legislation passed by Congress. The President may exercise <strong>the</strong> right<strong>of</strong> veto on laws passed, but not adopted, and in such cases we may distinguishtwo kinds <strong>of</strong> vetos: suspensory veto and pocket veto.If President disagrees with any <strong>of</strong> legislative proposals, in spite <strong>of</strong> <strong>the</strong>mbeing accepted by Senate and Congress, he may refuse to sign such legislativeproposal and return it to fur<strong>the</strong>r delibaration within ten-day period. Therefore,suspensory veto may become a powerful weapon in <strong>the</strong> hands <strong>of</strong> President.Namely, in order such proposal to be promoted into law, it needs to be overridenby a two-thirds majority <strong>of</strong> each House <strong>of</strong> Congress, situation leaving a lot to bedesired.The President must veto legislation within 10 days after it has been passedby both <strong>the</strong> Senate and <strong>the</strong> House <strong>of</strong> Representatives, or else <strong>the</strong> legislation willbecome law. However, if Congress adjourns before <strong>the</strong> end <strong>of</strong> <strong>the</strong> 10-day period<strong>the</strong> legislation will only become law if <strong>the</strong> President has signed it, thus it is said”he put it in his pocket”. Accordingly, <strong>the</strong> President may effectively veto legislationthat was passed within <strong>the</strong> last 10 days <strong>of</strong> <strong>the</strong> congressional session merely bynot signing it into law. This form <strong>of</strong> veto, which displays effects <strong>of</strong> absolute veto,earned <strong>the</strong> name ”pocket veto” and efectively forces repeated delibaration <strong>of</strong> <strong>the</strong>legislation proposed. As a result, <strong>the</strong> Congress faces a tiresome legal procedure<strong>of</strong> starting anew – ab initio – that is, from <strong>the</strong> point <strong>of</strong> initiating a legislation.This is <strong>the</strong> source <strong>of</strong> a sarcastic remark that President is actually a third House<strong>of</strong> Congress.In addition, it is worth mentioning <strong>the</strong> President is not vested with <strong>the</strong>power <strong>of</strong> giving legislative proposals. Instead, <strong>the</strong> President is allowed to giveState <strong>of</strong> <strong>the</strong> Union Address, an annual event in which <strong>the</strong> President <strong>of</strong> <strong>the</strong> United10 Notable example is Treaty <strong>of</strong> Versailles in 1919.
Contemporary Constitutional System in <strong>the</strong> United States <strong>of</strong> America 251States reports on <strong>the</strong> status <strong>of</strong> <strong>the</strong> country, normally to a joint session <strong>of</strong> <strong>the</strong>U.S. Congress, which at <strong>the</strong> same time serves as Presidential legislative agenda.The Address President delivers have a strong impact on public opinion andbecomes a legislative agenda <strong>of</strong> <strong>the</strong> Congress. Contents <strong>of</strong> <strong>the</strong> speech, that isinformation <strong>of</strong> <strong>the</strong> State <strong>of</strong> <strong>the</strong> Union and related programme, is not subject todiscussion. Having finished <strong>the</strong> Address, <strong>the</strong> President retires from Congressionalpremises.The term ”Government” (Cabinet) does not appear in <strong>the</strong> U.S. Constitution.Throughout <strong>the</strong> practice, <strong>the</strong> President created some sort <strong>of</strong> Cabinet, consisting<strong>of</strong> <strong>the</strong> heads <strong>of</strong> federal executive departments, fourteen in number. The heads <strong>of</strong>departments are named Secretaries, with <strong>the</strong> head <strong>of</strong> <strong>the</strong> Justice Departmentholding <strong>the</strong> title <strong>of</strong> Attorney General. They are mostly President’s close friendsand associates who comprise <strong>the</strong> so-called ’administration’. The U.S. Cabinetresembles a group <strong>of</strong> Ministers which, in words <strong>of</strong> James Brice, ”surroundedCzar or Sultan or followed orders <strong>of</strong> Roman Emperors like Julian or Constantine.”This is not an ordinary government in any respect, nor any sort <strong>of</strong> homogenouscollective body, but body vested with powers only granted by <strong>the</strong> Presidenthimself. A comment by Abraham Lincoln is <strong>the</strong> best illustration <strong>of</strong> relationswithin Cabinet – ”<strong>the</strong> only voice that counts is <strong>the</strong> voice <strong>of</strong> President.” In Lincoln’sCabinet, half <strong>the</strong> size <strong>of</strong> <strong>the</strong> modern one, sessions were rare occurrence andvotings on certain propositions were carried out only on explicit demand <strong>of</strong> <strong>the</strong>President, who had <strong>the</strong> power to overturn <strong>the</strong> decision <strong>of</strong> Cabinet members. Onone particular occasion, president Lincoln decided to put his decision to a vote;all Cabinet members, seven <strong>of</strong> <strong>the</strong>m, voted against President’s decision withonly Lincoln, in <strong>the</strong> capacity <strong>of</strong> proposer, voting affirmatively. Voting endingwith Lincolns remark ”We have seven nos and one yes – so it’s a yes”.Relation <strong>of</strong> Legislative and Judicial PowersElement <strong>of</strong> great importance in Presidential organisation <strong>of</strong> powers whichrests upon mutuality <strong>of</strong> branches <strong>of</strong> powers by ways <strong>of</strong> coordination is judicialpower. All judicial authority is granted to <strong>the</strong> courts, independence <strong>of</strong> which isguaranteed, yet <strong>the</strong>y are vested with one additional power that cannot be regarded”judicial” with utmost certainty. Namely, in <strong>the</strong> USA only Supreme Court is vestedwith power to review a law or an <strong>of</strong>ficial act <strong>of</strong> a government for constitutionality,<strong>the</strong> so-called Judicial review. However, <strong>the</strong> court has <strong>the</strong> power to strike down
252Dragan Bataveljićthat law or overturn <strong>the</strong> executive act, if it believes <strong>the</strong> law or act to beunconstitutional or to be contrary to law. Thus, <strong>the</strong>y are applying Constitutionin direct fashion, which in turn represents exception to constitutionality. Giventhat U.S. courts have an obligation to respect <strong>the</strong> legal regulations <strong>of</strong> superiorcourts which latter formulated in <strong>the</strong>ir adjudications, <strong>the</strong>se decisions havepractical value <strong>of</strong> legislation (whilst <strong>the</strong>y should be relevant only for <strong>the</strong> casetried.)All judicial power is vested exclusively in <strong>the</strong> Supreme Court, with allinferior Courts ordained and established by Congress – as a legislative category– leading to <strong>the</strong> development <strong>of</strong> vast and powerful network <strong>of</strong> federal courts(along with already established network <strong>of</strong> state courts). The courts try all sorts<strong>of</strong> cases, save <strong>the</strong> impeachment – power constitutionally granted solely to <strong>the</strong>Congress.The notion <strong>of</strong> vesting all judicial power to courts, giving high regard to<strong>the</strong> idea courts should be separate and independent branch <strong>of</strong> government, isrevolutionary in its nature, but for many contemporaries (late XVIII, early XIXcentury) <strong>the</strong> least comprehensible <strong>of</strong> ideas and not very realistic. However, <strong>the</strong>influence President exercises on <strong>the</strong> Supreme Court is relatively modest, amongo<strong>the</strong>r reasons because he appoints Justices for lifelong tenure. That means thatonce <strong>the</strong>y are appointed <strong>the</strong>y cannot be ousted. The separation <strong>of</strong> legislative,executive and judiciary branches is implemented by utilising several excellentdecisions which enabled judiciary branch to become an actual third branch <strong>of</strong>power:- The Constitution specifies that courts are only institution with power tointerpret and protect law and Constitution- Justices enjoy <strong>the</strong> right to hold <strong>the</strong>ir <strong>of</strong>fices during good behavior, thusmaking <strong>the</strong>m independent and effectively providing lifelong tenure- Justices receive compensation for <strong>the</strong>ir services which cannot bediminished during <strong>the</strong>ir continuance in <strong>of</strong>fice, and thus have completefinancial independenceResumé <strong>of</strong> <strong>the</strong> ConclusionsAll relevant governmental institutions in <strong>the</strong> United States <strong>of</strong> America arebased on very complex legal, political, economic and historical criteria, <strong>the</strong>complexity stemming from various <strong>the</strong>oretical and practical influences <strong>the</strong>
Contemporary Constitutional System in <strong>the</strong> United States <strong>of</strong> America 253system suffered during its development. We are primarily refering to verycomplicated and inconsistent English legal system, French <strong>the</strong>ory and law,specific form <strong>of</strong> federal organisation, as well as numerous state legal systemswith various peculiarities on <strong>the</strong>ir own.The United States <strong>of</strong> America are democratic entity with firmly establishedlegal system and all characteristics relevant for <strong>the</strong> Rule <strong>of</strong> Law which functionin conjuction with developed mechanisms for protection <strong>of</strong> human rights andliberties. At <strong>the</strong> same time, <strong>the</strong>y are federation with established and solidgovernment according to <strong>the</strong> principle <strong>of</strong> separation <strong>of</strong> powers into legislative,executive and judicial branches. In spite <strong>of</strong> <strong>the</strong> fact that Constitution did notprovide for such principle, it is not difficult to detect that separation <strong>of</strong> powersis in effect.The principle is most obvious in <strong>the</strong> strict separation <strong>of</strong> jurisdictionsamong legislative, executive and judiciary powers, ie. main holders <strong>of</strong> <strong>the</strong> three– Congress, President and Supreme Court. Separation is performed in rigidway, so none <strong>of</strong> <strong>the</strong> three branches could interfere with <strong>the</strong> proceedings <strong>of</strong> o<strong>the</strong>rtwo. However, since <strong>the</strong> concetration <strong>of</strong> powers cannot be exercised to <strong>the</strong> fullextent nei<strong>the</strong>r could <strong>the</strong> separation <strong>of</strong> powers be performed literally. Thisindicates <strong>the</strong> absolute separation <strong>of</strong> <strong>the</strong> three branches <strong>of</strong> power does not exist,since <strong>the</strong>re are various mechanisms which would prevent any <strong>of</strong> <strong>the</strong> branchesfrom gaining inappropriately high level <strong>of</strong> independence, thus making <strong>the</strong>usurpation <strong>of</strong> jurisdictions practically impossible.Legislative power is vested in bicameral Congress, composed <strong>of</strong> Senateand House <strong>of</strong> Representatives, a body with absolute legislative authority.Executive power, by provisions <strong>of</strong> Article II <strong>of</strong> U.S. Constitution, is vested in <strong>the</strong>President <strong>of</strong> <strong>the</strong> USA almost in its totality, hence he exerts wide authority, muchwider than <strong>the</strong> o<strong>the</strong>rs. Third power is one <strong>of</strong> judiciary, ie. free and independentjudicature, which represents <strong>the</strong> strongest <strong>of</strong> pillars in <strong>American</strong> constitutionalityand democracy.
2 Ivana Tucak, LL.M, AssistantFaculty <strong>of</strong> Law, Osijek, CroatiaA THEORY OF SOVEREIGNTY UNDERTHE FEDERAL CONSTITUTIONAbstract: It is not enough only to study <strong>the</strong> provisions <strong>of</strong> <strong>the</strong> very text <strong>of</strong><strong>the</strong> Constitution <strong>of</strong> 1787 fully to understand <strong>the</strong> meaning <strong>of</strong> <strong>the</strong> sovereignty and<strong>the</strong> federalism notions <strong>of</strong> <strong>the</strong> United States <strong>of</strong> America. The constitutionalprovisions should be put within <strong>the</strong> context <strong>of</strong> <strong>the</strong> historical events. Thecomprehension <strong>of</strong> <strong>the</strong> relations among <strong>the</strong> federal government and <strong>the</strong> memberstates has been considerably changed since <strong>the</strong> time <strong>of</strong> <strong>the</strong> ”Founding Fa<strong>the</strong>rs”.Today <strong>the</strong> federal government keeps a large number <strong>of</strong> <strong>the</strong> functions that <strong>the</strong>framers <strong>of</strong> <strong>the</strong> constitution in 18 th century could not even imagine. The decisiverole was played by <strong>the</strong> Supreme Court <strong>of</strong> <strong>the</strong> United States that has been qualifiedas ”a permanent constitutional convention”. So beside <strong>the</strong> <strong>American</strong> Revolution,<strong>the</strong> period <strong>of</strong> <strong>the</strong> Civil war and <strong>the</strong> period <strong>of</strong> The New Deal, President FranklinD. Roosevelt’s program as a trial response to <strong>the</strong> Great Depression that marked1930s, have been qualified as <strong>the</strong> crucial events in understanding <strong>of</strong> <strong>the</strong> <strong>American</strong>experience with <strong>the</strong> federalism.Key words: sovereignty, sovereign immunity, federalism, state’s rights,constitution1 Introduction Remarks – Sovereignty MeaningAt <strong>the</strong> very beginning it is important to notice that <strong>the</strong> notion <strong>of</strong> sovereigntysince its origin from 16 th century has been applied onto so different situations, andhas been subject to <strong>the</strong> permanent redefinition in accordance with <strong>the</strong> historicalcircumstances. The conception that in each state must exist an institution thatis considered as a supreme one prevailed up to <strong>the</strong> end <strong>of</strong> <strong>the</strong> 18 th century. Just<strong>the</strong>n <strong>the</strong> <strong>American</strong> colonists, who fought against <strong>the</strong> arbitrary actions <strong>of</strong> <strong>the</strong>English Parliament, developed a new concept <strong>of</strong> <strong>the</strong> sovereignty that allowed its
A Theory <strong>of</strong> Sovereignty Under <strong>the</strong> Federal Constitution 255division. By this study we shall try to present <strong>the</strong> <strong>American</strong> conceiving <strong>of</strong> <strong>the</strong>sovereignty and its development within <strong>the</strong> frame <strong>of</strong> <strong>the</strong> new form <strong>of</strong> <strong>the</strong> compoundstate that unites <strong>the</strong> elements <strong>of</strong> <strong>the</strong> unitary state and <strong>the</strong> confederation. In thisplace we shall only briefly turn to <strong>the</strong> origin <strong>of</strong> this concept in Europe.It has been considered that <strong>the</strong> first one who clearly defined <strong>the</strong> sovereignty<strong>the</strong>ory it was <strong>the</strong> French writer Jean Bodin (1529-1596) in his literary work”The Six Books <strong>of</strong> <strong>the</strong> Commonwealth” (Six Livres de la Republique, 1576). Thehistorical circumstances France <strong>of</strong> his time was in, <strong>the</strong> chaos that developedfrom <strong>the</strong> civil war among <strong>the</strong> Catholics and <strong>the</strong> Huguenots, induced Bodin tothink how to found <strong>the</strong> state only by accepting one authority that would have acentral and unlimited power. 1Bodin conceives <strong>the</strong> sovereignty as <strong>the</strong> highest, absolute, unlimited,perpetual, original and <strong>of</strong> laws free power 2 . In <strong>the</strong> Republic Bodin works on <strong>the</strong>whole constitutional law and he differentiates three groups <strong>of</strong> <strong>the</strong> states, classifiedin <strong>the</strong> accordance with <strong>the</strong> sovereignty holders: monarchy, people state andaristocracy. It is not possible to combine <strong>the</strong>se three forms <strong>of</strong> <strong>the</strong> reigns. Sincehe describes <strong>the</strong> monarchy as <strong>the</strong> best and <strong>the</strong> natural form <strong>of</strong> <strong>the</strong> reign that iswhy his definition <strong>of</strong> <strong>the</strong> sovereignty is not this one that could be applied on toall forms <strong>of</strong> <strong>the</strong> reign. Primary <strong>the</strong> sovereignty appears in <strong>the</strong> possibility <strong>of</strong> afree enacting: ”Wherefore let this be <strong>the</strong> first and chief mark <strong>of</strong> a sovereignprince, to be <strong>of</strong> power to give laws to all his subjects in general, and to every one<strong>of</strong> <strong>the</strong>m in particular..” 3 If <strong>the</strong> sovereign would need <strong>the</strong> consent <strong>of</strong> <strong>the</strong> citizens,<strong>of</strong> <strong>the</strong> senate or <strong>of</strong> <strong>the</strong> people, he would not be sovereign. 4 The sovereign isconsequently, according to <strong>the</strong> classical Roman doctrine, free <strong>of</strong> <strong>the</strong> law obligation(principes legibus solutus est). The sovereign has not been bound by his ownlaws ei<strong>the</strong>r by <strong>the</strong> laws <strong>of</strong> his predecessors. The sovereign has not been boundby his coronation oath ei<strong>the</strong>r. The customs are in effect only if <strong>the</strong> sovereignsgive <strong>the</strong>ir tacit consent for <strong>the</strong>ir validity. 5 Beside enacting, <strong>the</strong> o<strong>the</strong>r characteristics<strong>of</strong> <strong>the</strong> sovereign power are: to declare <strong>the</strong> war and to make <strong>the</strong> peace, to name<strong>the</strong> most important government employees, to grant pardons, <strong>the</strong> 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 Tucak<strong>the</strong> supreme court power, <strong>the</strong> right to mint coins and <strong>the</strong> right to determine <strong>the</strong>taxes. 6However it is important to point out that Bodin made a sovereign to be<strong>the</strong> master only <strong>of</strong> positive law, but not <strong>the</strong> master <strong>of</strong> <strong>the</strong> law on <strong>the</strong> wholeei<strong>the</strong>r. A sovereign is only legibus absolutus, but not iure absolutus. 7 At first asovereign is limited by <strong>the</strong> natural and divine laws. Then a sovereign is limitedby <strong>the</strong> international law and treaties, ”pacta sunt servanda”. 8 A sovereign is limitedby so-called ”fundamental law” (leges imperii), which preceded <strong>the</strong> sovereigntyand from which <strong>the</strong> sovereignty has been derived. These laws concern <strong>the</strong>inheritance <strong>of</strong> <strong>the</strong> throne (on <strong>the</strong> base <strong>of</strong> <strong>the</strong> Salic law).Among Bodin’s followers Thomas Hobbes (1588–1679) particularly standsout. His conceiving <strong>of</strong> <strong>the</strong> monarchy sovereignty became more extreme than <strong>of</strong><strong>the</strong> original doctrine. Hobbes made his sovereign unlimited in that way that hemade him superior to <strong>the</strong> natural and <strong>the</strong> divine laws, what meant <strong>the</strong> finalbreaking up with <strong>the</strong> medieval comprehension. However some authors describeHobbes’s doctrine <strong>of</strong> <strong>the</strong> monarchy sovereignty as ”a solemn tombstone – a glorifierabove <strong>the</strong> catafalque <strong>of</strong> <strong>the</strong> English absolute monarchy.” 9 In 17 th centuryEnglish constitutional law had <strong>the</strong> instruments to limit royal power like MagnaCarta libertatum in 1215, Petition <strong>of</strong> Rights in 1628. As a very important guarantor<strong>of</strong> <strong>the</strong> personal liberty appeared Habeas Corpus Act in 1679.In 1688 after <strong>the</strong> ”Glorius Revolution” <strong>the</strong> doctrine <strong>of</strong> parliamentarysovereignty appeared. The Bill <strong>of</strong> Rights determined that <strong>the</strong> King was obliged to<strong>the</strong> law as well. After Glorius Revolution in England <strong>the</strong> supreme power was keptby King in Parliament, which is a constitutional law term for that indivisibleentity consisting <strong>of</strong> King, House <strong>of</strong> Commons and House <strong>of</strong> Lords. The supremepower does not come anymore from <strong>the</strong> divine rights <strong>of</strong> <strong>the</strong> King but from <strong>the</strong>consent <strong>of</strong> <strong>the</strong> people. However after <strong>the</strong> people have elected <strong>the</strong> members <strong>of</strong><strong>the</strong> Parliament, <strong>the</strong> Parliament enact <strong>the</strong> laws independently without any6Grubić, op. cit. p. 808; See also Bodin, op.cit. p. 53-68 (Chapter X – The real characteristics<strong>of</strong> <strong>the</strong> sovereignty).7According to Zvonko Posavec, Bodin, in contrast to <strong>the</strong> medieval rulers, who were boundby <strong>the</strong> laws, Bodin merged two competences in one: <strong>the</strong> competence <strong>of</strong> <strong>the</strong> legislation and<strong>the</strong> competence <strong>of</strong> <strong>the</strong> command. See Posavec, Zvonko ”O suverenitetu” Politička misao,30:4/1993.8Grubić, loc. cit. (notes 6)9Krbek, op. cit., p. 84
A Theory <strong>of</strong> Sovereignty Under <strong>the</strong> Federal Constitution 257exterior influence. 10 The classical definition was given at <strong>the</strong> beginning <strong>of</strong> 19 thcentury by William Blackstone. According to him <strong>the</strong> power <strong>of</strong> <strong>the</strong> Parliamentis <strong>the</strong> absolute one, ”what <strong>the</strong> Parliament doth, no authority upon earth canundo”. 11 The only limitations <strong>of</strong> <strong>the</strong> sovereign’s will are <strong>the</strong> limitations that heimposes himself voluntarily.2 The Federal ConstitutionIn 1776 <strong>the</strong> rebellion <strong>of</strong> <strong>the</strong> colonies was not exclusively <strong>the</strong> reaction to<strong>the</strong> actual politics <strong>of</strong> <strong>the</strong> English Parliament but <strong>the</strong> reaction to <strong>the</strong> doctrine on<strong>the</strong> supremacy <strong>of</strong> <strong>the</strong> Parliament. 12 In <strong>the</strong> North America <strong>the</strong> English reproduced<strong>the</strong> civilization <strong>of</strong> <strong>the</strong>ir home-land in <strong>the</strong> new colonies, but <strong>the</strong> Parliamentpractice in <strong>the</strong> aspect <strong>of</strong> <strong>the</strong> elected representative parliaments <strong>of</strong> <strong>the</strong> colonistsas well. 13 During 1760s and 1770s in order to make <strong>the</strong> imperial powerstronger, <strong>the</strong> Parliament started enacting <strong>the</strong> laws, which <strong>the</strong> colonistsconsidered to be opposite to <strong>the</strong> basic principles <strong>of</strong> <strong>the</strong> English constitution.This concerned to <strong>the</strong> streng<strong>the</strong>ning <strong>of</strong> <strong>the</strong> executive power <strong>of</strong> <strong>the</strong> governors on<strong>the</strong> bill <strong>of</strong> <strong>the</strong> assemblies, <strong>the</strong>n to <strong>the</strong> introduction <strong>of</strong> <strong>the</strong> pr<strong>of</strong>essional army, to<strong>the</strong> tax rate regulations without colonists’ consent, to <strong>the</strong> suspension <strong>of</strong> <strong>the</strong>colonial assemblies. James Wilson will point out that <strong>the</strong> colonists ”tend toward<strong>the</strong> defense and <strong>the</strong> reestablishment <strong>of</strong> <strong>the</strong> rights <strong>of</strong> <strong>the</strong> colonies.” 14In July 1776 <strong>the</strong> colonies declared <strong>the</strong>ir independence. The Declaration <strong>of</strong>Independence proclaimed <strong>the</strong>m as thirteen free and independent states. In 1777<strong>the</strong>y united in <strong>the</strong> Confederation; <strong>the</strong>y established a weak central power thatexperienced <strong>the</strong> failure because <strong>of</strong> <strong>the</strong> military, diplomatic and commercefaults. The Congress as <strong>the</strong> central body had only <strong>the</strong> coordination authorities,10Krbek, op. cit., p. 9111Sir W. Blackstone, Commentaries on <strong>the</strong> Law <strong>of</strong> 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 <strong>of</strong> America, Encyclopedia Britannica Inc.Chicago 1976, 2; 418-419; cit. according to Podolnjak, op. cit. p. 39
258Ivana Tucakwithout any mechanism to drive <strong>the</strong> states and <strong>the</strong> citizens to carry out itsregulations. In 1787 in Philadelphia during <strong>the</strong> constitutional discussions asevere conflict broke between <strong>the</strong> federalists, who advocated <strong>the</strong> streng<strong>the</strong>ning<strong>of</strong> <strong>the</strong> federal Government and <strong>the</strong> anti-federalists, who were opponents to <strong>the</strong>Constitution and <strong>the</strong>y defended <strong>the</strong> sovereign constitutional rights <strong>of</strong> <strong>the</strong>federal units in regard <strong>of</strong> existing constitutional act – Articles <strong>of</strong> Confederation,1777. 15 The question where should be <strong>the</strong> sovereignty in <strong>the</strong> <strong>American</strong> federalsystem, as it can be seen from <strong>the</strong> notes <strong>of</strong> <strong>the</strong> discussions, was considerably lesspointed out; its real importance this question will show in <strong>the</strong> years thatcome. 16 At <strong>the</strong> Convention most representatives were not inclined to <strong>the</strong>solution that <strong>the</strong> full sovereignty should have to be in one or in <strong>the</strong> o<strong>the</strong>rgovernment. There were no <strong>the</strong>m who advocated an unlimited government, <strong>the</strong>sovereign one as per sample <strong>of</strong> <strong>the</strong> English concept <strong>of</strong> Parliamentarysovereignty. 17 At <strong>the</strong> time <strong>of</strong> <strong>the</strong> Constitution origin <strong>the</strong> opinion was that <strong>the</strong>principle <strong>of</strong> <strong>the</strong> divided sovereignty was <strong>the</strong> most appropriate one to <strong>the</strong>combined state form as it was <strong>of</strong> USA. The Federalists will particularly insist onthat principle, what can be seen in <strong>the</strong> political essays, that were published indaily press, and which had <strong>the</strong> main purpose to affect <strong>the</strong> decision <strong>of</strong> <strong>the</strong>representatives <strong>of</strong> New York State to ratify <strong>the</strong> Constitution text, where <strong>the</strong>division <strong>of</strong> <strong>the</strong> sovereignty was mentioned several times. Later <strong>the</strong>y werepublished in a special collection <strong>of</strong> Federalist, whose authors James Madison,Alexander Hamilton and John Jay, hid under <strong>the</strong> pseudonym Publius. Todaythis collection represents <strong>the</strong> most significant source for studying <strong>the</strong> intentions<strong>of</strong> <strong>the</strong> constitution framers, and many authors turn to <strong>the</strong>se intentions in <strong>the</strong>irdiscussions on <strong>the</strong> contemporary state <strong>of</strong> <strong>the</strong> <strong>American</strong> constitutional system.Especially to Madison, who in Federalist No. 39 pointed out that <strong>the</strong>jurisdiction <strong>of</strong> <strong>the</strong> central government ”...extends to certain enumerated objectsonly, and leaves a residuary and inviolable sovereignty over all o<strong>the</strong>r 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 <strong>the</strong> power concentration in one place, since <strong>the</strong> power has been dividedbetween state and federal government and among <strong>the</strong> departments <strong>of</strong> <strong>the</strong> national governmentas well. The structure <strong>of</strong> government must provide <strong>the</strong> proper checks and balances among<strong>the</strong> different departments.Text available on www.yale.edu/lawweb/avalon/federal/fed51.htm
A Theory <strong>of</strong> Sovereignty Under <strong>the</strong> Federal Constitution 259several States.» 18 The anti-federalists opposed bitterly to this idea <strong>of</strong> <strong>the</strong> dividedsovereignty.For <strong>the</strong> definitive standpoint concerning <strong>the</strong> sovereignty in <strong>the</strong> <strong>American</strong>federal system has been considered that one <strong>of</strong>fered by James Wilson at <strong>the</strong>time <strong>of</strong> <strong>the</strong> ratification polemics: ”my position is, that <strong>the</strong> sovereignty resides in<strong>the</strong> people. They have not parted with it; <strong>the</strong>y have only dispensed such portions<strong>of</strong> power as were conceived necessary for <strong>the</strong> public welfare... When <strong>the</strong> principleis once settled that <strong>the</strong> people are <strong>the</strong> source <strong>of</strong> authority, <strong>the</strong> consequence isthat <strong>the</strong>y may take from <strong>the</strong> subordinate governments powers with which <strong>the</strong>yhave hi<strong>the</strong>rto trusted <strong>the</strong>m, and place those powers in <strong>the</strong> general government,if it is thought that <strong>the</strong>re <strong>the</strong>y will be productive <strong>of</strong> more good.” 19 Although thisnotion is unknown to <strong>the</strong> Constitution <strong>of</strong> <strong>the</strong> USA, we can find it in <strong>the</strong> firstsentence <strong>of</strong> <strong>the</strong> Constitution: ”We <strong>the</strong> People <strong>of</strong> <strong>the</strong> United States...”. However,here <strong>the</strong>n a question gets opened: whe<strong>the</strong>r <strong>the</strong>re is <strong>the</strong> sovereignty in <strong>the</strong> peoplein its state features, what supported Chief Justice John Marshall in McCullock v.Maryland, Abraham Lincoln and Woodrow Wilson or <strong>the</strong> sovereignty belongsto <strong>the</strong> people in <strong>the</strong> state features, what many <strong>the</strong>oreticians considered – fromJefferson to <strong>the</strong> representatives <strong>of</strong> so-called state’s rights school <strong>of</strong> John Taylorand John C. Calhoune. Calhoune considered that <strong>the</strong> federal constitution was acontract among <strong>the</strong> sovereign member states. Each member state can in <strong>the</strong> sameway it became <strong>the</strong> member, to leave <strong>the</strong> federation, to convoke <strong>the</strong> constitutionalconvention and to recall <strong>the</strong> previous act on <strong>the</strong> ratification. So <strong>the</strong> secessionappears to Calhoun as <strong>the</strong> constitutional right <strong>of</strong> <strong>the</strong> member states. The end <strong>of</strong><strong>the</strong> Civil war and <strong>the</strong> defeat <strong>of</strong> eleven sou<strong>the</strong>rn states provided <strong>the</strong> final solutionconcerning <strong>the</strong> possibilities <strong>of</strong> <strong>the</strong> practical application <strong>of</strong> this doctrine. 203 The Development <strong>of</strong> <strong>the</strong> Constitutional LawAs we have pointed out, <strong>the</strong> very Constitution nei<strong>the</strong>r mentions <strong>the</strong> termsovereignty nor it defines precisely <strong>the</strong> areas that are in <strong>the</strong> exclusive competence<strong>of</strong> <strong>the</strong> states and those ones that are in <strong>the</strong> competence <strong>of</strong> <strong>the</strong> federal government,what in <strong>the</strong> years that followed endangered <strong>the</strong> steadiness and <strong>the</strong> efficiency <strong>of</strong>18Podolnjak, 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 Tucak<strong>the</strong> federal system. Here a need for an appropriate arbiter in <strong>the</strong> federal relationsappeared, and this role was granted to <strong>the</strong> Supreme Court. 21 It can be said thatevery more important <strong>American</strong> transformations <strong>of</strong> <strong>the</strong> relations among <strong>the</strong>federal government and <strong>the</strong> member states are not <strong>the</strong> result <strong>of</strong> <strong>the</strong> constitutionalamendments but <strong>of</strong> <strong>the</strong> court interpretation.3.1 The Establishment <strong>of</strong> <strong>the</strong> Supreme Power<strong>of</strong> <strong>the</strong> Federal GovernmentIn <strong>the</strong> first decades <strong>the</strong> practice <strong>of</strong> <strong>the</strong> Supreme Court in general was in<strong>the</strong> favor <strong>of</strong> <strong>the</strong> competence extension <strong>of</strong> <strong>the</strong> federal government. Here <strong>the</strong> role<strong>of</strong> John Marshall, <strong>the</strong> Chief Justice <strong>of</strong> Supreme Court was particularly great.During Marshall’s presidency <strong>the</strong> Supreme Court enacted series <strong>of</strong> <strong>the</strong> decreesthat were in <strong>the</strong> favor <strong>of</strong> <strong>the</strong>m who supported stronger central power and largercompetences <strong>of</strong> <strong>the</strong> Congress and to <strong>the</strong> detriment <strong>of</strong> <strong>the</strong> protectors <strong>of</strong> <strong>the</strong>state’s rights. Here as <strong>the</strong> key decisions are <strong>the</strong> early decisions that appear in <strong>the</strong>disputes McCulloch v. Maryland, Martin v. Hunter’s Lessee, and Gibbons v.Ogden. In <strong>the</strong>se disputes <strong>the</strong> Supreme Court gave its interpretation <strong>of</strong> certainsections <strong>of</strong> <strong>the</strong> Constitution, specifying <strong>the</strong> conditions <strong>of</strong> <strong>the</strong> relations among<strong>the</strong> federal government and <strong>the</strong> member states.McCulloch v. Maryland 22 is far <strong>the</strong> most important case concerning <strong>the</strong>establishment <strong>of</strong> <strong>the</strong> supreme power <strong>of</strong> <strong>the</strong> federal government. Before <strong>the</strong>Supreme Court appeared <strong>the</strong> case, where it was necessary to decide concerningtwo subjects: (a) whe<strong>the</strong>r Congress constitutionally possesses <strong>the</strong> power toincorporate a bank and (b) in that case have <strong>the</strong> state governments (in this case<strong>the</strong> State <strong>of</strong> Maryland) power to tax it? While having made his decision, ChiefJustice Marshall relied on <strong>the</strong> extensive interpretation <strong>of</strong> Article 1, Section 8 <strong>of</strong><strong>the</strong> Constitution that authorizes <strong>the</strong> Congress to make all laws which shall benecessary and proper to carry out its mentioned authorizations. Chief JusticeMarshall interpreted extensively this provision since in <strong>the</strong> Constitution <strong>the</strong>re isno provision which, as in <strong>the</strong> articles <strong>of</strong> confederation, excludes incidental orimplied powers and request that everything granted shall be explicitly andprecisely described. 23 ”Let <strong>the</strong> end be legitimate, let it be within <strong>the</strong> scope <strong>of</strong> <strong>the</strong>21Ibid., p. 7122McCulloch v. Maryland, 4 Wheat. 316 (1819)23”Even <strong>the</strong> 10 th amendment... omits <strong>the</strong> word ”expressly” and declares only, that <strong>the</strong>powers ”not delegated to <strong>the</strong> United States by <strong>the</strong> Constitution nor prohibited by it to <strong>the</strong>
A Theory <strong>of</strong> Sovereignty Under <strong>the</strong> Federal Constitution 261constitution, and all means which are appropriate, which are plainly adapted tothat end, which are not prohibited, but consist with <strong>the</strong> letter and spirit <strong>of</strong> <strong>the</strong>constitution are constitutional.” 24 After <strong>the</strong> positive response to this question,<strong>the</strong> Chief Justice Marshall determined that <strong>the</strong> authorization to tax is <strong>the</strong>authorization to destroy. The state governments can not tax <strong>the</strong> operations <strong>of</strong> <strong>the</strong>federal government, once <strong>the</strong> procedure <strong>of</strong> <strong>the</strong> Constitution adoption has beeninitiated, <strong>the</strong> newly founded government has got its sovereignty from <strong>the</strong> citizenry,<strong>the</strong> sovereignty which is out <strong>of</strong> <strong>the</strong> control <strong>of</strong> <strong>the</strong> states. The decision was foundedon <strong>the</strong> conviction that <strong>the</strong> federal government is supreme within <strong>the</strong> sphere <strong>of</strong> itswork, although limited in its powers. 25 The Constitutions and <strong>the</strong> laws thathave been enacted to perform <strong>the</strong>se authorizations are superior to <strong>the</strong>Constitutions and <strong>the</strong> laws <strong>of</strong> <strong>the</strong> states and can not be subject to <strong>the</strong>ir control. Thisverdict founded <strong>the</strong> rule that <strong>the</strong> Congress have <strong>the</strong> implied powers to find <strong>the</strong>new forms <strong>of</strong> <strong>the</strong> legislative standardization by <strong>the</strong> selection <strong>of</strong> <strong>the</strong> appropriatemeans, whenever <strong>the</strong> Congress find <strong>the</strong>mselves in <strong>the</strong> new unexpectedcircumstances. 26 That is why this provision has been called elastic or flexibleone. Just with <strong>the</strong> help <strong>of</strong> this provision <strong>the</strong> Congress will significantly increase<strong>the</strong> work scope <strong>of</strong> <strong>the</strong> federal government within next two centuries.Marbury v. Madison (1803) 27 was <strong>the</strong> beginning <strong>of</strong> <strong>the</strong> Supreme Courtcontrol <strong>of</strong> <strong>the</strong> constitutionality <strong>of</strong> <strong>the</strong> federal laws. In Martin v. Hunter’s Lessee(1816) <strong>the</strong> Supreme Court passed <strong>the</strong> judgment that it had <strong>the</strong> authority torevise <strong>the</strong> judgments <strong>of</strong> <strong>the</strong> courts <strong>of</strong> <strong>the</strong> states that requested <strong>the</strong> interpretation<strong>of</strong> <strong>the</strong> federal laws. 28 That was made on <strong>the</strong> base <strong>of</strong> <strong>the</strong> ”supremacy clause” <strong>of</strong><strong>the</strong> Constitution (Article VI) that determines that: ”The Constitution, and <strong>the</strong>Laws <strong>of</strong> <strong>the</strong> United States which shall be made in Pursuance <strong>the</strong>re<strong>of</strong>; and allStates, are reserved to <strong>the</strong> States respectively, or to <strong>the</strong> people”. According to Marshall thatis so because <strong>the</strong> people, who adopted this amendment, experienced troubles that resultedfrom inserting <strong>the</strong>se words in <strong>the</strong> articles <strong>of</strong> 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 <strong>the</strong> decision against <strong>the</strong>constitutionality <strong>of</strong> <strong>the</strong> acts <strong>of</strong> <strong>the</strong> Congress and <strong>of</strong> <strong>the</strong> states, John Calhoun concluded that<strong>the</strong> former one acts as a limitation on <strong>the</strong> au-thorities <strong>of</strong> <strong>the</strong> federal (central) government,but <strong>the</strong> latter one acts as its extension. The address on <strong>the</strong> veto, Febru-ary 1842, accordingto Podolnjak, op. cit. p. 398.
262Ivana TucakTreatise made, or which shall be made, under <strong>the</strong> Authority <strong>of</strong> <strong>the</strong> UnitedStates, shall be <strong>the</strong> supreme Law <strong>of</strong> <strong>the</strong> Land; and <strong>the</strong> Judges in every State shallbe bound <strong>the</strong>reby, and Thing in <strong>the</strong> Constitution or Laws <strong>of</strong> any State to <strong>the</strong>Contrary notwithstanding.”In Gibbons v. Ogden (1824) 29 for <strong>the</strong> first time <strong>the</strong> Supreme Court wasengaged in <strong>the</strong> discussion on <strong>the</strong> federal government’s power under <strong>the</strong> CommerceClause. This Commerce Clause <strong>the</strong>re is in Art. 1, sect. 8, point 3 <strong>of</strong> <strong>the</strong> <strong>American</strong>Constitution. In accordance with this clause <strong>the</strong> Congress has been authorized”to regulate <strong>the</strong> commerce with foreign states, and among <strong>the</strong> several States andwith <strong>the</strong> Indian tribes.” The Commerce Clause is <strong>of</strong> <strong>the</strong> exceptional importancefor understanding <strong>the</strong> nature <strong>of</strong> <strong>the</strong> federalism. Namely, one <strong>of</strong> <strong>the</strong> main reasonsthat led to <strong>the</strong> origin <strong>of</strong> <strong>the</strong> federation was to find out <strong>the</strong> way to prevent <strong>the</strong>member states to impose a number <strong>of</strong> different limitations, taxes and bans thatcause damages to o<strong>the</strong>r member states. 30 That is <strong>the</strong> reason why <strong>the</strong> federalbodies get <strong>the</strong> great powers in <strong>the</strong> sphere <strong>of</strong> <strong>the</strong> commerce and <strong>the</strong> sales. Thisconstitutional provision has been defined wide and vague, it does not define”<strong>the</strong> interstate trade” and <strong>the</strong> scope <strong>of</strong> <strong>the</strong> authorizations <strong>of</strong> <strong>the</strong> Congress, whathas given a significant role to <strong>the</strong> courts in solving <strong>the</strong> lawsuits that have resultedfrom <strong>the</strong> division <strong>of</strong> <strong>the</strong> authorizations in <strong>the</strong> sphere <strong>of</strong> <strong>the</strong> commerce. 31 That is<strong>the</strong> reason why <strong>the</strong> importance <strong>of</strong> this provision increased or decreased duringits application, in accordance with <strong>the</strong> changes in <strong>the</strong> ruling doctrine <strong>of</strong> <strong>the</strong>judges <strong>of</strong> <strong>the</strong> Supreme Court.In Gibbons v. Ogden it was set up <strong>the</strong> question <strong>of</strong> <strong>the</strong> constitutionality <strong>of</strong><strong>the</strong> New York State Law that established <strong>the</strong> monopoly on <strong>the</strong> steamship travelin its water. The plaintiff referred to <strong>the</strong> Federal Coasting Act (1793) in order toeffect <strong>the</strong> right on shipping between New York and New Haven. Chief JusticeMarshall declared <strong>the</strong> law <strong>of</strong> <strong>the</strong> New York State to be unconstitutional on <strong>the</strong>base <strong>of</strong> <strong>the</strong> Supremacy Clause and <strong>the</strong> extensive interpretation <strong>of</strong> <strong>the</strong> CommerceClause <strong>of</strong> <strong>the</strong> Constitution. Chief Justice Marshall pointed out once more that<strong>the</strong> invalidity <strong>of</strong> any act, which is opposite to <strong>the</strong> Constitution, results from <strong>the</strong>declaration that <strong>the</strong> Constitution is <strong>the</strong> supreme law. 32 That meant that in <strong>the</strong>case <strong>of</strong> <strong>the</strong> concurrent competence, that is in <strong>the</strong> sphere where <strong>the</strong> 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 <strong>of</strong> Sovereignty Under <strong>the</strong> Federal Constitution 263<strong>of</strong> <strong>the</strong> federal government and <strong>of</strong> <strong>the</strong> government <strong>of</strong> <strong>the</strong> member states overlap,<strong>the</strong> laws that were enacted by <strong>the</strong> Congress on <strong>the</strong> base <strong>of</strong> <strong>the</strong> Constitution or<strong>the</strong> treaty concluded in <strong>the</strong> name <strong>of</strong> <strong>the</strong> United States, derogate <strong>the</strong> acts <strong>of</strong> <strong>the</strong>legislative bodies <strong>of</strong> <strong>the</strong> member states, although <strong>the</strong>y were enacted within <strong>the</strong>field <strong>of</strong> <strong>the</strong>ir authorizations that are not controversial.Chief Justice Marshall rejected <strong>the</strong> narrow interpretation <strong>of</strong> <strong>the</strong> power <strong>of</strong><strong>the</strong> Congress on <strong>the</strong> commerce, which should be in conformity with <strong>the</strong> <strong>the</strong>ory<strong>of</strong> <strong>the</strong> states’ rights since ”that narrow construction would cripple <strong>the</strong>government, and render it unequal to <strong>the</strong> object for which it has been declaredto be instituted...” 33 In this case Chief Justice Marshall gave a wide definition <strong>of</strong><strong>the</strong> word ’commerce’ that does not include only buying and selling <strong>of</strong> <strong>the</strong> goods.”Commerce, undoubtedly, is traffic, but it is something more: it is intercourse.It describes <strong>the</strong> commercial intercourse between nations, and parts <strong>of</strong> 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 <strong>the</strong> place<strong>of</strong> <strong>the</strong> Chief Justice <strong>of</strong> <strong>the</strong> Supreme Court Roger Brooke Taney supported <strong>the</strong>defense <strong>of</strong> <strong>the</strong> integrity <strong>of</strong> <strong>the</strong> states and <strong>the</strong>ir residuary powers. He thought that<strong>the</strong> true meaning <strong>of</strong> <strong>the</strong> Commerce Clause was that <strong>the</strong> federal governmentshould enable <strong>the</strong> smooth commerce functioning, to concentrate on preventingand eliminating <strong>of</strong> <strong>the</strong> difficulties, its power should be <strong>the</strong> negative one. Thisinterpretation assumes <strong>the</strong> free market and economy. So it is particularlyimportant decision made by <strong>the</strong> Supreme Court in Colley v. The Board <strong>of</strong>Wardens <strong>of</strong> <strong>the</strong> Port <strong>of</strong> Philadelphia 35 , where it was pointed out that <strong>the</strong> commerceactivities at <strong>the</strong> local level, in <strong>the</strong> absence <strong>of</strong> <strong>the</strong> federal law, could be regulatedby <strong>the</strong> law <strong>of</strong> <strong>the</strong> member state as well.3.2 The Civil War and <strong>the</strong> Concept <strong>of</strong> Dual SovereigntyAt <strong>the</strong> time <strong>of</strong> <strong>the</strong> Constitution origin <strong>the</strong> representatives <strong>of</strong> <strong>the</strong> strong statesovereignty were <strong>the</strong> progressivists. 36 They pointed out that <strong>the</strong>decentralization enables <strong>the</strong> larger freedom and <strong>the</strong> participation <strong>of</strong> <strong>the</strong> citizensin <strong>the</strong> political life. The most prominent representative was Thomas Jefferson,33Ibid, p. 188-18934Ibid. p. 1893512 Howard 299, 185236Gey, Steven G., The Myth <strong>of</strong> State Sovereignty, 63 Ohio St. L. J., 1601, 2002, 1606
264Ivana Tucakwho said for <strong>the</strong> federal government to be ”<strong>the</strong> most corrupted government in<strong>the</strong> whole world.” 37However in <strong>the</strong> period before <strong>the</strong> Civil War began, <strong>the</strong> representatives <strong>of</strong> <strong>the</strong>strong state sovereignty had started identifying <strong>the</strong>mselves with <strong>the</strong> conservativereasons. The question <strong>of</strong> <strong>the</strong> sovereignty was connected to <strong>the</strong> question <strong>of</strong> <strong>the</strong>race. The sou<strong>the</strong>rn states insisted on <strong>the</strong> rights <strong>of</strong> <strong>the</strong> states, which included <strong>the</strong>nullification right as well (<strong>the</strong> idea that <strong>the</strong> member state government is allowedto declare a certain action <strong>of</strong> <strong>the</strong> federal government to be invalid one) and <strong>the</strong>right on <strong>the</strong> secession. 38The Civil War meant <strong>the</strong> end <strong>of</strong> such ideas and confirmed ”perpetuityand indissolubility <strong>of</strong> <strong>the</strong> Union.” That was confirmed in Texas v. White (1869)by <strong>the</strong> Supreme Court during <strong>the</strong> mandate <strong>of</strong> Salman Chase: ”When, <strong>the</strong>refore,Texas became one <strong>of</strong> <strong>the</strong> United States, she entered into an indissoluble relation.”However it does not mean <strong>the</strong> end <strong>of</strong> <strong>the</strong> separated existence <strong>of</strong> <strong>the</strong> member states:”<strong>the</strong> preservation <strong>of</strong> <strong>the</strong> States, and <strong>the</strong> maintenance <strong>of</strong> <strong>the</strong>ir governments, areas much within <strong>the</strong> design and care <strong>of</strong> <strong>the</strong> Constitution as <strong>the</strong> preservation <strong>of</strong><strong>the</strong> Union and <strong>the</strong> maintenance <strong>of</strong> <strong>the</strong> National government.” 39 So in <strong>the</strong>decades after <strong>the</strong> Civil War <strong>the</strong> Supreme Court accepted <strong>the</strong> doctrine <strong>of</strong> <strong>the</strong> dualsovereignty, <strong>the</strong> concept where <strong>the</strong> federal government and <strong>the</strong> governments <strong>of</strong><strong>the</strong> member states are sovereign, and each one have exclusive control over <strong>the</strong>irrespective areas <strong>of</strong> authority. 40 This <strong>the</strong>ory has been based on <strong>the</strong> TenthAmendment, where <strong>the</strong> federal government has got <strong>the</strong> authorization only onnarrowly defined constitutional tasks, and <strong>the</strong> supreme power over anythingelse belongs to <strong>the</strong> governments <strong>of</strong> <strong>the</strong> member states.Within this period <strong>the</strong> Supreme Court left Marshall’s wide interpretation<strong>of</strong> <strong>the</strong> competences <strong>of</strong> <strong>the</strong> federal government under <strong>the</strong> aspect <strong>of</strong> <strong>the</strong> interstatecommerce settling. 41 The Supreme Court expressed its standpoints through <strong>the</strong>37Smerdel, 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 <strong>the</strong> Supreme Court as <strong>the</strong> organ <strong>of</strong> <strong>the</strong> nationalgovernment interprets <strong>the</strong> Constitution, it does it in compliance with <strong>the</strong> Constitution thatacknowledge <strong>the</strong> sovereignty and independence <strong>of</strong> <strong>the</strong> states within <strong>the</strong> range <strong>of</strong> <strong>the</strong>irauthorities.” According to Smerdel, op. cit., p. 1241At <strong>the</strong> end <strong>of</strong> 19 th century <strong>the</strong> Supreme Court accepted <strong>the</strong> basic structure <strong>of</strong> <strong>the</strong> dormantCommerce Clause that has been still characteristic for <strong>the</strong> Constitutional law. In this system
A Theory <strong>of</strong> Sovereignty Under <strong>the</strong> Federal Constitution 265decisions that referred to <strong>the</strong> all-inclusive federal laws that referred to <strong>the</strong> industryand <strong>the</strong> economy regulation in Kidd v. Pearson (1888) and United States v. E. C.Knight (1895). In <strong>the</strong>se cases <strong>the</strong> <strong>the</strong>ory frame was set up that would dictate <strong>the</strong>decisions <strong>of</strong> <strong>the</strong> Supreme Court until <strong>the</strong> middle <strong>of</strong> 1930s. In <strong>the</strong>se cases it wasshown as well that <strong>the</strong>re was <strong>the</strong> connection among <strong>the</strong> sovereign states and <strong>the</strong>economy <strong>the</strong>ory <strong>of</strong> <strong>the</strong> period, through <strong>the</strong> assumption that <strong>the</strong> market gravitatestoward <strong>the</strong> natural balance <strong>of</strong> <strong>the</strong> supply and demand and to <strong>the</strong> pr<strong>of</strong>oundopposition to every state intervention on <strong>the</strong> market (laissez faire). So <strong>the</strong>Supreme Court deprived <strong>the</strong> federal government <strong>of</strong> <strong>the</strong> possibility to determine<strong>the</strong> minimal national hourly wage and <strong>the</strong> work conditions.Kidd referred to <strong>the</strong> state regulation <strong>of</strong> liquor production intended for <strong>the</strong>delivery to o<strong>the</strong>r states. The question was set up if <strong>the</strong> liquor production couldbe considered for ”<strong>the</strong> commerce” in <strong>the</strong> sense <strong>of</strong> <strong>the</strong> Commerce Clause <strong>of</strong> <strong>the</strong>Constitution. The Supreme Court considered that <strong>the</strong> production and <strong>the</strong>commerce had not <strong>the</strong> same functions and it saw <strong>the</strong>m as two different parts <strong>of</strong>an uncoordinated follow-up <strong>of</strong> <strong>the</strong> events. That led <strong>the</strong> Court to <strong>the</strong> conclusionthat <strong>the</strong> state regulation did not break <strong>the</strong> authorizations <strong>of</strong> <strong>the</strong> Congress, that itregulated <strong>the</strong> interstate commerce since <strong>the</strong> production process had a localcharacter and it was exclusively subject to <strong>the</strong> regulation by <strong>the</strong> state. 42 For <strong>the</strong>Supreme Court <strong>of</strong> this period that was worried what impact should have had<strong>the</strong> national regulation on <strong>the</strong> state sovereignty, it had been an irrelevant factthat <strong>the</strong> problems that appeared at <strong>the</strong> production level, would inevitably have<strong>the</strong> impact on <strong>the</strong> sales <strong>of</strong> <strong>the</strong> final products. 43In <strong>the</strong> case United States v. E. C. Knight Co. (1895) 44 <strong>the</strong> Supreme Courtpassed <strong>the</strong> judgment that <strong>the</strong> application <strong>of</strong> <strong>the</strong> Sherman Antitrust Act (1890)on <strong>the</strong> <strong>American</strong> Sugar Company that tried to monopolize <strong>the</strong> sugar productiontaking <strong>the</strong> control over five residuary independent sugar refineries should beunconstitutional.<strong>of</strong> <strong>the</strong> interstate commerce regulation, <strong>the</strong> states have been allowed to regulate <strong>the</strong> interstatecommerce, unless <strong>the</strong>ir laws discriminate or charge <strong>the</strong> interstate commerce. But <strong>the</strong> federalgovernment can preempt that state regulation, simply by adopting <strong>the</strong> opposite politicsthrough <strong>the</strong> 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 <strong>the</strong> Supreme Court started supporting <strong>the</strong> federal laws thatused <strong>the</strong> Commerce Clause for o<strong>the</strong>r regulatory purposes. At <strong>the</strong> beginning <strong>of</strong><strong>the</strong> 20 th century <strong>the</strong>re were enacted <strong>the</strong> laws on <strong>the</strong> interstate commerce <strong>of</strong> lotterytickets, spoiled food and prostitutes. However in <strong>the</strong> case Hammer v. Dagenhart(1918) <strong>the</strong> Supreme Court declared <strong>the</strong> Child Labor Act to be unconstitutional,since in <strong>the</strong> contrast to earlier mentioned acts, <strong>the</strong> products <strong>of</strong> <strong>the</strong> child labor,which circulated among <strong>the</strong> states, were not harmful. 45 According to <strong>the</strong>Supreme Court <strong>the</strong> protection <strong>of</strong> <strong>the</strong> state sovereignty from <strong>the</strong> TenthAmendment covers <strong>the</strong> regulation <strong>of</strong> <strong>the</strong> domestic commerce and all inherentlylocalized economy activities. And in Bailey v. Drexel Furniture Co. (Child LaborAct – Taxing Child Labor) <strong>the</strong> Supreme Court had concluded that <strong>the</strong> federallaw that would have concerned to <strong>the</strong> taxing <strong>of</strong> such activities, would have been<strong>the</strong> threat to overthrow all constitutional limitations <strong>of</strong> <strong>the</strong> Congress andcompletely to cancel <strong>the</strong> sovereignty <strong>of</strong> <strong>the</strong> states. 463.3 New Deal PeriodIn this period <strong>the</strong> Supreme Court gave up <strong>the</strong> efforts precisely to determine<strong>the</strong> borders among <strong>the</strong> federal and <strong>the</strong> states’ governments. The Supreme Courtpassed <strong>the</strong> Social Security Act and <strong>the</strong> National Labor Relations Act, 1937. In<strong>the</strong> case United States v. Darby (1941) <strong>the</strong> Supreme Court passed <strong>the</strong> judgmentunanimously that <strong>the</strong> Congress had <strong>the</strong> authorization to place a ban on <strong>the</strong>supply <strong>of</strong> <strong>the</strong> products made by child labor, what vacated <strong>the</strong> judgment inHammer v. Dagenhart. That was <strong>the</strong> end <strong>of</strong> <strong>the</strong> dual federalism doctrine, <strong>of</strong> <strong>the</strong>absolute conceiving <strong>of</strong> <strong>the</strong> sovereignty whe<strong>the</strong>r <strong>of</strong> <strong>the</strong> states or <strong>of</strong> <strong>the</strong> nationalgovernment. 47 The Supreme Court marked <strong>the</strong> Tenth Amendment as a selfunderstoodtruth. The Congress power can be carried out to <strong>the</strong> 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 <strong>the</strong> <strong>the</strong>ory <strong>of</strong> <strong>the</strong> dual sovereignty was replacedby <strong>the</strong> <strong>the</strong>ory <strong>of</strong> <strong>the</strong> cooperative sovereignty, which accordingly, in this period <strong>the</strong> federaland state functions overlap more and more. The federal government and <strong>the</strong> governments<strong>of</strong> <strong>the</strong> states divide <strong>the</strong> power and <strong>the</strong>y do <strong>the</strong>ir tasks toge<strong>the</strong>r. The <strong>the</strong>ory was founded on<strong>the</strong> elastic Constitution provision (Art. 1, Sec. 8), which grants to <strong>the</strong> Congress <strong>the</strong> competence”to make all Laws which shall be necessary and proper” to carry out its mentionedauthorizations as well as on <strong>the</strong> constitutional provision on <strong>the</strong> supremacy <strong>of</strong> <strong>the</strong> federallaws and <strong>the</strong> Constitution (Art. VI). Janda et. al., op. cit., p. 67.
A Theory <strong>of</strong> Sovereignty Under <strong>the</strong> Federal Constitution 267foreseen by <strong>the</strong> Constitution. This power can be nei<strong>the</strong>r reduce nor expandedby carrying out or not carrying out <strong>the</strong> state authorities. ”Congress, followingits own conception <strong>of</strong> public policy concerning <strong>the</strong> restriction which mayappropriately be imposed on interstate commerce, is free to exclude from <strong>the</strong>commerce articles whose in <strong>the</strong> states for which <strong>the</strong>y are destined it may conceiveto be injurious to <strong>the</strong> public health, morals or welfare...” 48 Since <strong>the</strong>n regularly<strong>the</strong> Supreme Court has given <strong>the</strong> advantage to <strong>the</strong> federal government in regardto <strong>the</strong> member states.4 New State SovereigntyHowever at <strong>the</strong> end <strong>of</strong> 20 th century <strong>the</strong> Supreme Court, its conservativefive-member majority, revived <strong>the</strong> concept <strong>of</strong> <strong>the</strong> state sovereignty through <strong>the</strong>series <strong>of</strong> its decisions. The Supreme Court used <strong>the</strong> concept <strong>of</strong> <strong>the</strong> state sovereigntyto extend <strong>the</strong> authorities <strong>of</strong> <strong>the</strong> state governments and at <strong>the</strong> same time to limit<strong>the</strong> federal government in each area where <strong>the</strong>ir functions overlapped.4.1 National League <strong>of</strong> Cities v. UseryIn this case, just like in its decisions concerning <strong>the</strong> state rights in <strong>the</strong>period before 1937, <strong>the</strong> Supreme Court referred to <strong>the</strong> Tenth Amendment. Thequestion was set up: Can <strong>the</strong> amendments <strong>of</strong> <strong>the</strong> Fair Labor Standards Act,1974, be applied on to state and local governments as <strong>the</strong> employers. Writing in<strong>the</strong> name <strong>of</strong> <strong>the</strong> majority Justice Rehnquist pointed out <strong>the</strong> standpoint that thisact could not be applied on those aspects <strong>of</strong> <strong>the</strong> state employment that cameunder ”<strong>the</strong> integral governmental functions <strong>of</strong> <strong>the</strong>se bodies”. The Congress couldnot use its regulatory authorities (<strong>the</strong> Commerce Clause) over ”traditionalgovernmental functions”. 49 In this way among <strong>the</strong> judges <strong>of</strong> <strong>the</strong> lower federalcourts and in <strong>the</strong> very Supreme Court <strong>the</strong> question what meant <strong>the</strong> standard <strong>of</strong>”<strong>the</strong> traditional governmental functions” was opened. In <strong>the</strong> practice it provedto be inapplicable.48United States v. Darby 312 US 100 at 117 (1941)49”If Congress may withdraw from <strong>the</strong> States <strong>the</strong> authority to make those fundamentalemployment decisions upon which <strong>the</strong>ir system for performance <strong>of</strong> <strong>the</strong>se functions mustrest, we think <strong>the</strong>re would be little left <strong>of</strong> States’ ”separate and independent existence.”National League <strong>of</strong> Cities v. Usery, 426 US., p. 833 at 853 (1976)
268Ivana TucakThat contributed to <strong>the</strong> fact that <strong>the</strong> Supreme Court rejected NationalLeague <strong>of</strong> Cities v. Usery, 1985, by <strong>the</strong> decision Garcia v. San Antonio MetropolitanTransit Authority (1985). 50 Justice Blackmun, as <strong>the</strong> loudspeaker <strong>of</strong> <strong>the</strong> majority,rejected <strong>the</strong> attitude that <strong>the</strong> Supreme Court could use a special concept on <strong>the</strong>state sovereignty when judged <strong>the</strong> authorities <strong>of</strong> <strong>the</strong> Congress according to <strong>the</strong>Commerce Clause. The sovereign rights <strong>of</strong> <strong>the</strong> states are to be realized by <strong>the</strong>political process.In <strong>the</strong> cases after Garcia, once more <strong>the</strong> decisions <strong>of</strong> <strong>the</strong> Supreme Courtpointed out <strong>the</strong> importance <strong>of</strong> <strong>the</strong> states within <strong>the</strong> federal system <strong>of</strong> USA. So<strong>the</strong> Supreme Court protected <strong>the</strong> law and political integrity <strong>of</strong> <strong>the</strong> states in NewYork v. United States (1997), when <strong>the</strong> Supreme Court declared <strong>the</strong> provisions<strong>of</strong> <strong>the</strong> federal act (Radioactive Waste Policy Act) unconstitutional ones, thatrequested that state legislators to take certain steps, what <strong>the</strong> federal governmentaccording <strong>the</strong> Constitution was not authorized to do. 51 In United States v.Lopez (1995) <strong>the</strong> Supreme Court considered that <strong>the</strong> ban <strong>of</strong> carrying <strong>the</strong> weaponin <strong>the</strong> schools exceeded <strong>the</strong> authorities <strong>of</strong> <strong>the</strong> Congress according to <strong>the</strong>Commerce Clause. 524.2 The Eleventh Amendment <strong>Jurisprudence</strong>In one <strong>of</strong> <strong>the</strong> key spheres <strong>of</strong> <strong>the</strong> contemporary jurisprudence <strong>the</strong> SupremeCourt created a contradictory doctrine that allowed <strong>the</strong> state governments torefer to <strong>the</strong> sovereign immunity on <strong>the</strong> responsibility for violating <strong>the</strong> Constitutionand <strong>the</strong> federal acts. In <strong>the</strong> case Chisholm v. Georgia, 1972, <strong>the</strong> executor <strong>of</strong> aSouth Carolina merchant brought an assumpsit action in <strong>the</strong> Supreme Courtagainst <strong>the</strong> state <strong>of</strong> Georgia for <strong>the</strong> breach <strong>of</strong> a war supplies contract. Georgiarejected <strong>the</strong> court hearing and submitted <strong>the</strong> objection in writing having referredto <strong>the</strong> state ”sovereign” immunity from suit. The decision in <strong>the</strong> favor <strong>of</strong> <strong>the</strong>plaintiff caused <strong>the</strong> stormy reactions among <strong>the</strong> states, 53 what resulted inadopting <strong>the</strong> Eleventh Amendment <strong>of</strong> <strong>the</strong> 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 ”...<strong>the</strong> sovereignty <strong>of</strong> <strong>the</strong> nation is in <strong>the</strong> people <strong>of</strong> <strong>the</strong> nation, and<strong>the</strong> residuary sovereignty <strong>of</strong> each state in <strong>the</strong> people <strong>of</strong> each state.” Georgia agreed to <strong>the</strong>suit <strong>of</strong> <strong>the</strong> citizens from <strong>the</strong> o<strong>the</strong>r state in <strong>the</strong> way that Georgia became a party <strong>of</strong> <strong>the</strong> nationalcompact. Chislom v. Georgia, 2 US, 419 at 471, 474, (1793)
A Theory <strong>of</strong> Sovereignty Under <strong>the</strong> Federal Constitution 269determines: ”The Judicial power <strong>of</strong> <strong>the</strong> United States shall not be construed toextend to any suit in law or equity, commenced or prosecuted against one <strong>of</strong> <strong>the</strong>United States by Citizens <strong>of</strong> ano<strong>the</strong>r State, or by Citizens or Subject <strong>of</strong> anyForeign State”. In <strong>the</strong> case Hans v. Louisiana (1890) <strong>the</strong> Supreme Court acceptedall-inclusive conceiving <strong>of</strong> <strong>the</strong> state sovereignty in <strong>the</strong> case where <strong>the</strong>amendment was not applied under its own conditions, and decided that <strong>the</strong>federal competence did not exist if a citizen sued his own state. 54 So it wascreated a possibility that in some areas <strong>the</strong> Congress could pass <strong>the</strong> acts directedto <strong>the</strong> citizens <strong>of</strong> <strong>the</strong> states, but <strong>the</strong> full enforcement <strong>of</strong> <strong>the</strong>se acts could berealized only at <strong>the</strong> level <strong>of</strong> <strong>the</strong> state courts. 55 So <strong>the</strong> citizens started looking at<strong>the</strong> word ’federalism’ with <strong>the</strong> fear, <strong>the</strong>y saw it as a notion used to deprive <strong>the</strong>citizens <strong>of</strong> <strong>the</strong>ir constitutional rights when <strong>the</strong>y are <strong>the</strong> victims <strong>of</strong> <strong>the</strong>maltreatment <strong>of</strong> <strong>the</strong>ir own governments. The very Supreme Court realized thisproblem and tried to limit <strong>the</strong> range <strong>of</strong> <strong>the</strong> application <strong>of</strong> <strong>the</strong> sovereignimmunity principle by different fictions. The most well-known one is <strong>the</strong> Exparte Young fiction (1908) that allows <strong>the</strong> citizens to sue <strong>the</strong> state that violates<strong>the</strong> federal Constitution or federal laws, pretending that <strong>the</strong> governmentemployee has been sued. 56 In <strong>the</strong> cases like this one <strong>of</strong> Young, <strong>the</strong> plaintiff hasto prove that <strong>the</strong> accused is <strong>the</strong> government employee, who carries out <strong>the</strong> stateauthorities. This solution has no practical sense, since if <strong>the</strong> federal court passes<strong>the</strong> judgment on <strong>the</strong> government employee because he disregards <strong>the</strong> federalacts, <strong>the</strong> very state will be obliged to co-ordinate its behavior with <strong>the</strong> federalact. 57 So <strong>the</strong> Supreme Court tried to coordinate <strong>the</strong> constitutional immunity <strong>of</strong><strong>the</strong> states with <strong>the</strong> supremacy <strong>of</strong> <strong>the</strong> federal law at <strong>the</strong> same time.Recently <strong>the</strong> Supreme Court used <strong>the</strong> Eleventh Amendment in even morecontroversial way in Alden v. Maine (1999), in <strong>the</strong> judges proportion 5:4, whereit determined that <strong>the</strong> states could not be accused in <strong>the</strong>ir own courts forviolating <strong>the</strong> federal law. In this way <strong>the</strong> Supreme Court allowed <strong>the</strong> states awide authority to avoid carrying out <strong>the</strong> federal acts and openly acknowledgedthat it ran away from <strong>the</strong> literal text <strong>of</strong> <strong>the</strong> Eleventh Amendment.In <strong>the</strong> Alden case <strong>the</strong> question concerned <strong>the</strong> ability <strong>of</strong> <strong>the</strong> private partiesto sue <strong>the</strong> state governments before <strong>the</strong> state courts for violating <strong>the</strong> 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 <strong>the</strong> wages and working time <strong>of</strong> <strong>the</strong> Fair Labor Standards Act. The Aldenmajority founded its decision on <strong>the</strong> Constitution structure, <strong>the</strong> history and <strong>the</strong>authoritative interpretation <strong>of</strong> <strong>the</strong> court cases connected to <strong>the</strong> Tenth and <strong>the</strong>Eleventh Amendment, which pointed out that <strong>the</strong> state immunity to <strong>the</strong>accusations was a fundamental aspect <strong>of</strong> <strong>the</strong> sovereignty, which <strong>the</strong> states enjoyedbefore <strong>the</strong> ratification <strong>of</strong> <strong>the</strong> Constitution, and <strong>the</strong>y have kept everything up totoday with <strong>the</strong> exceptions, which have been foreseen by <strong>the</strong> Constitution orcertain constitutional Amendments. The states have not been degraded only to<strong>the</strong> provinces or <strong>the</strong> political corporations, but <strong>the</strong>y maintained <strong>the</strong>ir dignity,although not <strong>the</strong> full authority <strong>of</strong> <strong>the</strong> sovereignty. The Supreme Court granted<strong>the</strong> constitutional status to ”<strong>the</strong> sovereign immunity”, that can not be an object<strong>of</strong> <strong>the</strong> regulation by <strong>the</strong> Congress through <strong>the</strong> Commerce Clause. The EnglishCommon Law idea concerning <strong>the</strong> ban <strong>of</strong> <strong>the</strong> accusation against <strong>the</strong> sovereignin <strong>the</strong>ir own courts has been implicitly contained in <strong>the</strong> text <strong>of</strong> <strong>the</strong>Constitution. 58 However <strong>the</strong> Supreme Court pointed out that <strong>the</strong> right <strong>of</strong> <strong>the</strong>states to refer to <strong>the</strong> sovereign immunity did not mean that <strong>the</strong> states coulddisregard <strong>the</strong> Constitution or <strong>the</strong> valid federal act. The states and <strong>the</strong>iremployees must respect <strong>the</strong> obligations that were enacted by <strong>the</strong> Constitutionand <strong>the</strong> federal law that match <strong>the</strong> Constitution design.ConclusionWe can conclude that <strong>the</strong> concept <strong>of</strong> <strong>the</strong> sovereignty was in <strong>the</strong> focus <strong>of</strong><strong>the</strong> political <strong>the</strong>ory as before as after <strong>the</strong> Constitution was enacted. In <strong>the</strong>history <strong>the</strong> number discussions on <strong>the</strong> question who in <strong>the</strong> federation belonged<strong>the</strong> sovereignty to were led, but on <strong>the</strong> true meaning <strong>of</strong> <strong>the</strong> very notion as well.The role <strong>of</strong> <strong>the</strong> Supreme Court as <strong>the</strong> arbiter in <strong>the</strong> federal relations appeared as<strong>the</strong> key one because <strong>of</strong> <strong>the</strong> fact that <strong>the</strong> Constitution has not contained <strong>the</strong> clearborders among <strong>the</strong> authorities <strong>of</strong> <strong>the</strong> federal government and <strong>the</strong> member states.The last time <strong>the</strong> decisive fight on <strong>the</strong> question <strong>of</strong> <strong>the</strong> state sovereignty and <strong>the</strong>authorities <strong>of</strong> <strong>the</strong> federal government was led in 30s <strong>of</strong> <strong>the</strong> last century. Since<strong>the</strong>n <strong>the</strong> Supreme Court has given regularly <strong>the</strong> advantage to <strong>the</strong> federal58Alden v. Maine 527 US 706 (1999) See also Merico – Stephens, Ana-Maria, Of Maine’sSovereignty, Alden’s Federalism and by Myth <strong>of</strong> Absolute Principles: The Newest OldestQuestion <strong>of</strong> Constitutional Law, 33 U.S. Davis L. Rev. 325 (1999-2000), p. 327
A Theory <strong>of</strong> Sovereignty Under <strong>the</strong> Federal Constitution 271government. However during last 10 years <strong>the</strong> new conservative majority <strong>of</strong> <strong>the</strong>judges used <strong>the</strong> concept <strong>of</strong> <strong>the</strong> state sovereignty in <strong>the</strong> series <strong>of</strong> <strong>the</strong> cases thatappeared in front <strong>of</strong> <strong>the</strong>m in order to limit <strong>the</strong> authorities <strong>of</strong> <strong>the</strong> federalgovernment. However in contrast to <strong>the</strong> last crisis when <strong>the</strong> judges reallysupported <strong>the</strong> concept, which assumed 49 different sovereigns, it has beensupposed by <strong>the</strong> new decisions <strong>of</strong> <strong>the</strong> Supreme Court that <strong>the</strong> states have beensovereign, but that sovereignty that <strong>the</strong> state possesses is not <strong>the</strong> absolute one. 59The state like this one is not problematic only <strong>the</strong>oretically, but practically veryhard attainable as well. The fact that <strong>the</strong>re is no coherent <strong>the</strong>ory, which attained<strong>the</strong> balance between <strong>the</strong> supremacy <strong>of</strong> <strong>the</strong> federal law and <strong>the</strong> sovereign rights<strong>of</strong> <strong>the</strong> states, has endangered <strong>the</strong> very principle <strong>of</strong> <strong>the</strong> rule-<strong>of</strong> 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 <strong>the</strong> Croatian edition <strong>of</strong> <strong>the</strong> book by a Harvard pr<strong>of</strong>essor<strong>of</strong> philosophy, Robert Nozick (1938–2002), called Anarchy, State and Utopia.This was first Nozick’s book. It was published in 1974, and for it <strong>the</strong> authorreceived <strong>the</strong> prestigious National Book Award. Anarchy, State and Utopia hasbeen appraised as a key work in contemporary political philosophy. In spite <strong>of</strong><strong>the</strong> fact that it has encountered a great deal <strong>of</strong> criticism, and that Nozick himselflater on revised a great many <strong>of</strong> <strong>the</strong> views expounded in it, critics, no matterwhe<strong>the</strong>r <strong>the</strong>y agree or disagree with <strong>the</strong> ideas presented in it, have been unanimousin <strong>the</strong>ir 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 <strong>of</strong> <strong>the</strong> hundred most influentalbooks in <strong>the</strong> period after World War II. Anarchy, State and Utopia is actuallyNozick’s critique <strong>of</strong> <strong>the</strong> book Theory <strong>of</strong> Justice, published in 1971 by his Harvardcolleague, John Rawls, also nominated for <strong>the</strong> National Book Award. Nozickcriticizes Rawls’ social-democratic liberalism and bureaucratic state <strong>of</strong> welfarethat has a role <strong>of</strong> redistributing <strong>the</strong> goods in such a way that even those worse<strong>of</strong>for less fortunate (<strong>the</strong> poor or <strong>the</strong> disadvantaged) could not complain <strong>of</strong> beingtreated unfairly. He advocates a minimal state and <strong>the</strong> primacy <strong>of</strong> individualrights. Functions <strong>of</strong> this minimal state would be reduced to protecting its citizensfrom violence, <strong>the</strong>ft and breach <strong>of</strong> contract, and according to him, any statewith authority larger than this would violate <strong>the</strong> natural rights <strong>of</strong> its citizens.Holding this view, Nozick adopts <strong>the</strong> libertarian concept <strong>of</strong> <strong>the</strong> state, whosefunctions would be brought down to national defence, police protection andadministration <strong>of</strong> justice, and all <strong>the</strong> o<strong>the</strong>r areas <strong>of</strong> public life (education,healthcare, social security and <strong>the</strong> like) should be <strong>the</strong> responsibility <strong>of</strong> charities,religious organizations and o<strong>the</strong>r private institutions conduct trade at <strong>the</strong> free
Robert Nozick: Anarchy, State and Utopia 273market. Therfore, <strong>the</strong> book Anarchy, State and Utopia is today still considered’a libertarian Bible,’ and Nozick himself is <strong>of</strong>ten called ’<strong>the</strong> intellectual hero <strong>of</strong>libertarians.’ This political philosophy highlights free mind and free market as<strong>the</strong> key factors <strong>of</strong> a prosperous society.In <strong>the</strong> first part <strong>of</strong> <strong>the</strong> book entitled ’State <strong>of</strong> Nature Theory or How toBack into a State without Really Trying, ’ <strong>the</strong> author poses <strong>the</strong> fundamentalquestion <strong>of</strong> political philosophy, whe<strong>the</strong>r <strong>the</strong>re should be any state at all. Byrejecting <strong>the</strong> anarchistic <strong>the</strong>ory as <strong>the</strong> one that undermines political philosophy,he resorts to <strong>the</strong> <strong>the</strong>ory <strong>of</strong> <strong>the</strong> state <strong>of</strong> nature, which, according to him, represents<strong>the</strong> best state <strong>of</strong> anarchy, and <strong>the</strong> examination <strong>of</strong> features and imperfections <strong>of</strong>which can provide us with an answer to <strong>the</strong> question whe<strong>the</strong>r <strong>the</strong> state is betterthan anarchy, i.e. whe<strong>the</strong>r <strong>the</strong> state is even better than <strong>the</strong> most acceptable form<strong>of</strong> anarchy, <strong>the</strong> state <strong>of</strong> nature itself. In doing so, Nozick analyses <strong>the</strong> state <strong>of</strong>nature as defined by John Locke. In that state people live in state <strong>of</strong> perfect freedomand dispose <strong>of</strong> <strong>the</strong>ir properties and persons within <strong>the</strong> limitations <strong>of</strong> naturallaws that bid that no one can harm <strong>the</strong> life, health, freedom and property <strong>of</strong>ano<strong>the</strong>r. In <strong>the</strong> state <strong>of</strong> nature, when his rights are endangered, a person defendshimself, punishes violators and gets compensation from <strong>the</strong>m, and in thatdefense may be joined by o<strong>the</strong>rs. That is how mutual protection associations areformed, and among <strong>the</strong>m one has to be dominant. To <strong>the</strong> question whe<strong>the</strong>r 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 <strong>of</strong> protecting everone who lives on that territory. Nozick claimsthat this is how from <strong>the</strong> state <strong>of</strong> nature ’a nightwatchman state <strong>of</strong> clasic liberal<strong>the</strong>ory’ originates, and its function is <strong>the</strong>n restricted to <strong>the</strong> protection <strong>of</strong> itscitizens against violence, <strong>the</strong>ft and fraud, as well as ensuring <strong>the</strong> enforcement <strong>of</strong>contracts. He calls this kind <strong>of</strong> state a minimal state, and it stands oppositeprivate protective associations. At least one o<strong>the</strong>r social system can be positionedbetween <strong>the</strong>m, <strong>the</strong> one that Nozick refers to as ’ultraminimal state.’ This statewould have a monopoly on every use <strong>of</strong> force except for that in case <strong>of</strong> immediateself-defense. It would exclude <strong>the</strong> possibility <strong>of</strong> private retaliation, but, on <strong>the</strong>o<strong>the</strong>r hand, would provide protection only to those who ’buy’ it, or, in o<strong>the</strong>rwords, acquire ’execution policy.’ Nozick continues by posing <strong>the</strong> question <strong>of</strong>moral acceptability <strong>of</strong> activities people undertake in order to establish andpreserve <strong>the</strong> state, and claims that moral philosophy represents a framework forpolitical philosohy, and that moral prohibitions are <strong>the</strong> source <strong>of</strong> legitimacy for<strong>the</strong> state`s coercive power.
274Gordana MitrovićConsidering a minimal state <strong>the</strong> most extensive state that can be justified,in <strong>the</strong> second part <strong>of</strong> <strong>the</strong> book entitled ’Beyond <strong>the</strong> Minimal State?’, Nozickquestions <strong>the</strong> reasons o<strong>the</strong>r authors had used in trying to justify a more extensivestate, among which particularly: achieving distributive justice (this part is basedmainly on <strong>the</strong> criticism <strong>of</strong> Rawls` <strong>the</strong>ory <strong>of</strong> justice), equality, self-esteem, equality<strong>of</strong> opportunity, workers` control, voluntary exchange, philanthropy, biggerpolitical equality through decrease in economic inequality, and gain <strong>the</strong> right tovote on matters <strong>of</strong> importance to an individual. He develops his <strong>the</strong>ory <strong>of</strong> justice,i.e. <strong>the</strong> entitlement <strong>the</strong>ory, as he calls it, according to which <strong>the</strong> principle <strong>of</strong>justice is exhausted in <strong>the</strong> process <strong>of</strong> original acquisition <strong>of</strong> property, its transferby legitimate means, and finally, <strong>the</strong> rectification <strong>of</strong> possible violations <strong>of</strong>acquisition and transfer. The minimal state is big enough to make this kind <strong>of</strong>justice possible. However, Nozick ends <strong>the</strong> second part <strong>of</strong> his book with ahypo<strong>the</strong>tical description <strong>of</strong> a more extensive state, with a goal <strong>of</strong>, as he says, <strong>of</strong>making that kind <strong>of</strong> state less attractive. This ’more-than-minimal state’ wouldexist if a person should start selling a part <strong>of</strong> rights he has on himself. In thatway he would become a holding company, selling owner`s share <strong>of</strong> himself. Anindividual would <strong>the</strong>n be seen as <strong>the</strong> owner <strong>of</strong> <strong>the</strong> rights for deciding on <strong>the</strong>occupation he is to choose, kind <strong>of</strong> clo<strong>the</strong>s he is to wear, person he is to marry,etc. Some <strong>of</strong> <strong>the</strong>se rights a person would, without violating rights <strong>of</strong> o<strong>the</strong>rs,alienate, some he would keep for himself, and people would thus be transformedinto holding companies, and become proprietors <strong>of</strong> each o<strong>the</strong>r. This ’ownership<strong>of</strong> people, by people and for people’, a so-called demoktesis, would be <strong>the</strong> highestform <strong>of</strong> social life. In that way, using a process as a sequence <strong>of</strong> individualactions and without violating anyone`s rights, Nozick thinks that we can evolvefrom a minimal into a democratic state.At <strong>the</strong> end, in <strong>the</strong> third part <strong>of</strong> his book, entitled ’Utopia’, in order to avoidmaking minimal state too pale and uninteresting to <strong>the</strong> reader, ’incapable’ <strong>of</strong>inspiring people to fight and sacrifice for it, Nozick turns to <strong>the</strong> utopian <strong>the</strong>ory,and concludes that a minimal state is <strong>the</strong> only state morally desirable, legitimateand tolerable, that does not violate one`s personal rights, ’<strong>the</strong> one that in <strong>the</strong> bestway possible implements utopian longings <strong>of</strong> numerous dreamers and visionaries’.Contrary to extensive states people live in in <strong>the</strong> modern world, it is an inspiringvision and a framework for utopia. for it treats people as inviolable individualswith <strong>the</strong>ir own rights and dignity, and enables <strong>the</strong>m to live <strong>the</strong>ir lives, alone orwith o<strong>the</strong>rs <strong>of</strong> <strong>the</strong>ir choice, and to realize <strong>the</strong>ir potentials as much as possible incooperation with o<strong>the</strong>r such individuals.
Robert Nozick: Anarchy, State and Utopia 275Having in mind a pr<strong>of</strong>ound and comprehensive approach that distinguishesNozick`s concept <strong>of</strong> minimal state presented in <strong>the</strong> book Anarchy, State, andUtopia, it is no wonder that, in spite <strong>of</strong> <strong>the</strong> numerous criticisms it received, thisbook, as already stated at <strong>the</strong> beginning <strong>of</strong> this review, was soon after its releaseproclaimed ’a libertarian Bible’ and a breath <strong>of</strong> fresh air in modern political<strong>the</strong>ory. That makes it modern and attractive enough for <strong>the</strong> reading public inthis part <strong>of</strong> <strong>the</strong> world, and its translation into Croatian language, though executedalmost three decades after its publishing in <strong>the</strong> USA, is a great contribution to<strong>the</strong> study <strong>of</strong> contemporary <strong>American</strong> political and legal philosophy in ourcountry. Fur<strong>the</strong>rmore, <strong>the</strong> publication <strong>of</strong> this book should serve as an incentivefor <strong>the</strong> publishers to translate and publish o<strong>the</strong>r works by Robert Nozick inSerbian, that would, in return, prompt domestic authors to study <strong>the</strong> work <strong>of</strong>this <strong>American</strong> author, which is not so comprehensive, as is various and interestingin its subjects and connection to various disciplines.
CLOSING WORDGordana VukadinovićFirst <strong>of</strong> all, I would like to thank all <strong>the</strong> participants for <strong>the</strong>ir efforts <strong>the</strong>yinvested in <strong>the</strong> preparation <strong>of</strong> <strong>the</strong>ir 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 <strong>the</strong> way from <strong>the</strong> United States andhelped us exchange opinions and deepen our knowledge on <strong>American</strong> jurisprudence<strong>of</strong> <strong>the</strong> 20 th century. This topic is <strong>of</strong> great interest at <strong>the</strong> moment, and, as youcould see, it is inspiring many authors, especially <strong>the</strong> young ones whom we areextremely proud <strong>of</strong>.Of course, this event would not have been possible without <strong>the</strong> patronage<strong>of</strong> <strong>the</strong> Embassy <strong>of</strong> <strong>the</strong> United States <strong>of</strong> America in Belgrade and we thank <strong>the</strong>mfor that. We have to thank our general sponsor, <strong>the</strong> SIM Company from SremskiKarlovci, for recognizing <strong>the</strong> importance <strong>of</strong> this meeting and helping itsrealization. We are very grateful for <strong>the</strong>ir help, since <strong>the</strong>se efforts we have madeand presented will be published in editions in English and in Serbian.We owe special thanks to <strong>the</strong> Executive Council <strong>of</strong> <strong>the</strong> AutonomousProvince <strong>of</strong> Vojvodina, for <strong>the</strong>ir unconditional understanding for <strong>the</strong> work <strong>of</strong> anewly founded association. The association working in <strong>the</strong> region where, with ashort pause <strong>of</strong> a few years (when <strong>the</strong>re was <strong>the</strong> Yugoslav Association for Theory,Philosophy and Legal Sociology), for more than six decades <strong>the</strong>re has not been anassociation for those involved in <strong>the</strong> field <strong>of</strong> <strong>the</strong>ory, ethics and legal philosophy.Our goal is to expand this cooperation and to grow into a regional organizationin <strong>the</strong> future.I would like to express gratitude to our hosts, <strong>the</strong> Assembly <strong>of</strong> <strong>the</strong>Municipality <strong>of</strong> Sremski Karlovci as well as <strong>the</strong> Karlovci Grammar School thatalso made this unique scientific meeting, <strong>the</strong> 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 <strong>of</strong> <strong>the</strong> conference <strong>American</strong> <strong>Jurisprudence</strong> <strong>of</strong> <strong>the</strong> 20 th <strong>Century</strong>held in Sremski Karlovci, Serbia, from March 31 to April 2, 2006.
SummaryOpening SpeechGordana Vukadinović . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3IOn <strong>American</strong> <strong>Jurisprudence</strong>1 Mira Gur-Arie<strong>American</strong> <strong>Jurisprudence</strong> in <strong>the</strong> Third Millennium . . . . . . . . . . . . . . . . . . . . . . . . . . 92 Gordana VukadinovićConteporary <strong>American</strong> <strong>Jurisprudence</strong> and Serbian Theory <strong>of</strong> Lawat Beginning <strong>of</strong> Twenty-first <strong>Century</strong> . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213 Agneš Kartag-OdriNew Perspectives in <strong>American</strong> Legal Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34IIWhat is Law?1 Duško VrbanEconomic Analysis <strong>of</strong> Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 592 Milorad ŽižićBiorational and Social Determination <strong>of</strong> <strong>the</strong> Process<strong>of</strong> Material Origin <strong>of</strong> Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 663 Miroslav A. ŽivkovićContribution <strong>of</strong> <strong>American</strong> Legal Theory in Defining <strong>the</strong> Concept <strong>of</strong> Law . . . . . . 734 Biljana KneževićRonald Dworkin’s Natural Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 825 Sanja ĐurđićLiberal Theory <strong>of</strong> Justice <strong>of</strong> John Rawls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 966 Branko TucakovJerome Frank’s Legal Realism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047 Miloš MarjanovićRoscoe Pound’s Sociological <strong>Jurisprudence</strong> from <strong>the</strong> EuropeanContinental Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
IIIThe Morality <strong>of</strong> Law1 Dragan M. MitrovićLon Fuller’s Legal Philosophy on <strong>the</strong> Morality <strong>of</strong> Law in View<strong>of</strong> His Opponents and Advocates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1332 Marko BožićJohn Finnis, <strong>the</strong> Heir <strong>of</strong> <strong>the</strong> Aquinian Natural Law Tradition . . . . . . . . . . . . . . 1413 Marko TrajkovićRichard A. Posner: The Problematics <strong>of</strong> Moral and Legal Theory . . . . . . . . . . . 1534 Danijela GrujićFor <strong>the</strong> Love <strong>of</strong> One’s Country and <strong>the</strong> World . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156IVArgumentation and Interpretation <strong>of</strong> Law1 Marijan PavčnikConstitutional Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1652 Slobodan BeljanskiPound’s Concept <strong>of</strong> Law Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1843 Petar Te<strong>of</strong>ilovićThe Contribution <strong>of</strong> <strong>the</strong> US <strong>Jurisprudence</strong> to Freedom <strong>of</strong> Expressionin <strong>the</strong> USA Through <strong>the</strong> Development <strong>of</strong> Defamation Law . . . . . . . . . . . . . . . . . 1974 Dragutin AvramovićAlan Watson: Legal Transplants – An Approach to Comparative Law . . . . . . . 221VThe Legal and Political System <strong>of</strong> <strong>the</strong> USA1 Dragan BataveljićConteporary Constitutional System in <strong>the</strong> United States <strong>of</strong> America . . . . . . . . . 2312 Ivana TucakA Theory <strong>of</strong> Sovereignty Under <strong>the</strong> Federal Constitution . . . . . . . . . . . . . . . . . . 2483 Gordana MitrovićRobert Nozick: Anarchy, States and Utopia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265Closing Word . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269Gordana Vukadinović