American Jurisprudence of the 20 th Century

Novi Sad Association for Theory Ethics and Philosophy of Law American Jurisprudence of the 20th Century Prof. Agneš Kartag–Odri, PhD, and prof. Gord...
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Novi Sad Association for Theory Ethics and Philosophy of Law

American Jurisprudence of the 20th Century

Prof. Agneš Kartag–Odri, PhD, and prof. Gordana Vukadinović, PhD, editors

Novi Sad, 2007

2 Published by The Novi Sad Association for Theory, Ethics and Philosophy of Law Edited by Prof. Agneš Kartag–Odri, PhD Prof. Gordana Vukadinović, PhD Board of editors Mira Gur–Arie, Washington, D.C., USA Gordana Vukadinović, Novi Sad, Serbia Agneš Kartag–Odri, Novi Sad, Serbia Duško Vrban, Osijek, Croatia Marijan Pavčnik, Ljubljana, Slovenia Technical assistants Biljana Knežević Gordana Mitrović Marko Božić Public relations manager Branko Tucakov Computer design and production Vladimir Vatić, Predrag Rakić Typeset Krimel, Budisava Copies printed: 200 The publishing of this book was aided by: The USA Embassy in Belgrade The Executive Council of the Autonomous Province of Vojvodina The Municipality of Sremski Karlovci General sponsor SIM doo, Novi Sad, Branka Bajića 10 Sponsored by KONZUL doo, Novi Sad, Stevana Musića 1

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

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

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Welcome speech Mr. John Johnson, Attaché Cultural at the Embassy of the United States of America in Belgrade

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

I On American Jurisprudence

1. Mira Gur-Arie, PhD FJC, Washington, D.C. American Jurisprudence in the Third Millennium 2. Prof. Gordana Vukadinović, PhD Faculty of Law, Novi Sad, Serbia Conteporary American Jurisprudence and Serbian Theory of Law at the Beginning of the Twenty-first Century 3. Prof. Agneš Kartag-Odri, PhD Faculty of Law, Novi Sad, Serbia New Perspectives in American Legal Theory

1 Mira Gur-Arie * FJC, Washington, D.C., USA

AMERICAN JURISPRUDENCE IN THE THIRD MILLENNIUM – REMARKS –

My remarks will address current trends in American jurisprudence, or, more specifically, ”Jurisprudence in the United States in the Third Millennium.” Although discussions about the philosophy of law take place primarily among professors of legal theory, debate over what can be referred to as ’applied jurisprudence’ – the interpretive principles that judges employ to decide cases – has animated the pages of published court decisions over the last 200 years and is a topic with significant resonance in American society today. Jurisprudence speaks to the essence of what judges in the United States do, the process of interpreting the Constitution and statutory text and applying legal principles to questions of fact. Jurisprudence also reflects beliefs about the judiciary’s role, the institutional competence and responsibility of courts within the framework of the United States Constitution. Because judges in the United States are called upon to resolve issues of such fundamental importance to society, including the scope and protections accorded individual rights, a principled legal theory is in many ways the intellectual foundation for the rule of law. The opening of the Third Millennium in the United States has been marked by increasingly public and pointed debates over the role of courts, challenges to the exercise of judicial authority, and disagreement over the appropriate content of the judiciary’s interpretive process. This heightened scrutiny is in part the result of the importance of and disagreement about many of the issues under judicial review in recent years, including the powers of the Executive during war, the rights of minorities, and religious liberty. Debate over *

Mira Gur-Arie is the Director of International Judicial Relations at the Federal Judicial Center, in Washington, D.C. The views expressed in this paper are those of the author and should not be attributed to the Center.

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the appropriate role of the courts and the interpretive rules that should govern ”American” jurisprudence has been aired not only in the halls of academia, but also in the texts of judicial decisions, the corridors of Congress, the pages of newspapers, and, with growing frequency, the internet’s blogosphere. This is a period of jurisprudence in flux. This paper will attempt to describe this flux, first by providing a brief historical overview and next by discussing current examples of this jurisprudential discourse as articulated by leading academics and Justices of the U.S. Supreme Court. The current polarity in American judicial philosophy, though perhaps somewhat more tense than in the past, reflects the central importance of legal theory (and the judiciary) to American democracy.

Historical Context In the United States, the essential relationship between jurisprudence and judicial power is rooted in the efforts of the authors (the ”framers”) of the Constitution to resolve, or at least accommodate, the tension between judicial independence and accountability. The general structure of the U.S. legal system and the common law method is well known. The Constitution of the United States enshrines a formidable judicial role. It sets forth an institutional framework under which laws are drafted by the legislature and enforced by the executive. The judiciary is empowered to interpret the law. The Constitution’s framers intentionally created a strong and independent judicial power, having recently experienced the arbitrary and authoritarian rule of the King of England, rule that included political influence over the colonial judiciary. They believed that a strong judiciary was essential to protect individual liberty against the authority of the government and designed a governmental system that shields the judicial process from outside influences. The Constitution grants federal judges life tenure and prohibits any reduction in judicial compensation. However, from the earliest days of the American colonial period through the present day, the nature and limits of judicial branch power has engendered debate. Not long after the Constitution was ratified, the U.S. Supreme Court, in an infamous case Marbury v. Madison, interpreted the Constitution as granting the judiciary the power, and obligation, to declare null and void an act of Congress that fails to comport with the Constitution. This early exercise of

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constitutional interpretation by Chief Justice John Marshall set forth the theory of judicial review, imbued U.S. judicial history with a lasting stigma of controversy, and increased the stakes for articulating a coherent jurisprudence. The essence of this controversy has been referred to as the ’antimajoritarian dilemma’ – the propriety of unelected officials (judges) to review and overturn the actions of a democratically elected legislative branch. Jurisprudence in the United States has been consumed with the effort to answer the quandary of a powerful judicial role, an effort to ground the judicial process in principled methodology and guard against descent into judicial fiat.

Schools of American Jurisprudence: What Is It That Judges Do? The challenge of American jurisprudence has been to address this question of legitimacy – to demonstrate that legal outcomes can be objectively just, that the law’s foundations are impartial and do not reflect the arbitrary will of individual judges. Jurisprudence in its many forms is an effort to compensate for broad powers of judicial review by providing an explanation of the legal process and a source for legal principles. Although there are distinct schools of American jurisprudence, there is much overlap, with successive theories borrowing from or reacting to their predecessors. Natural law theorists posit that law is grounded in moral truth. This moral foundation, free of subjectivity and political whim, is viewed as providing legitimacy for legal principles. Critics of natural law-based jurisprudence point to the absence of consensus about the meaning of natural law and the content of morality. Responding to this dilemma, legal positivism espouses a secular science of law that is based on clearly articulated neutral rules and principles. Critics of legal positivism in turn contend that not only is there no single, empirically defensible judicial method, but rules divorced from a normative basis can lead to socially indefensible results and deprive law of moral meaning. Without a moral foundation, law is devoid of authority. One of the most famous critics of the notion of objective legal principles was Supreme Court Justice Oliver Wendell Holmes. Holmes wrote at length about the subjective influences of individual judges. Judges resolve difficult cases by balancing interests in search of the ’best’ result. Judges do not discover legal principles; they make law by reaching conclusions that at their core reflect the jurist’s personal preferences.

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The Legal Process movement, most often associated with the scholar Lon Fuller, argues that law is governed by reason, not divine fiat, and this reason is reflected in the transparent and uniformly employed legal method of case analysis. Legal method is carried out to realize morally defensible goals. Rather than imposing their subjective values, judges follow a reasoned and transparent interpretive process, modestly, incrementally, and with institutional circumspection. The 1960’s were a period of social upheaval in the United States, upheaval marked by a search for social justice and skepticism about the legitimacy of governmental authority. The Legal Process method was criticized as overly formalistic and unrealistically divorced from context. Lawyers were exerting pressure on the judicial system to remedy social injustices. Supreme Court rulings during the tenure of Chief Justice Earl Warren provided some citizens with faith in the potential of the courts to enable political and social reforms and achieve justice – a view that represents the tenets of American liberalism. However, for others, the Warren Court’s rulings on cases involving the rights of minorities and criminal defendants represented American jurisprudence at its worst, with judges emboldened to act as Platonic guards and exceeding their constitutionally-mandated authority. The liberal tradition of the Warren Court found further philosophical expression in a movement named the ”living Constitution”, a theory of constitutional interpretation that ”draws its meaning from the evolving standards of decency that mark the progress of a maturing society”. Troop v. Dulles (1958). This jurisprudence is most often associated with late Supreme Court Justice William Brennan. Justice Brennan believed that the Constitution is an organic, living document, one that that should be interpreted with flexibility and should be responsive to contemporary societal conditions and mores. Central to ”living Constitution” jurisprudence is the notion of human dignity. Constitutional provisions should be interpreted to safeguard this dignity and promote egalitarian values. Recently retired Supreme Court Justice Sandra Day O’Connor and Justice Anthony Kennedy do not articulate their interpretive method in terms of a ”living Constitution.” Theirs is a deliberative and more circumscribed judicial method, resolving issues on a case-by-case basis without a clearly doctrinal jurisprudence. However, they also have embraced a responsive jurisprudence and reject the notion of an interpretive process limited to the vague and sparse language of the Constitution.

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The ”Constitution in Exile” movement was born, in part, as a reaction of the perceived excesses of the Warren Court era and the resulting ”activist” jurisprudence advocated by proponents of a living Constitution. Scholars of this school believe the Constitution should be strictly construed and the interpretive process should be confined to the original meaning of the 18th century text, with its language and dictates interpreted as they would have been intended by the Constitution’s authors. Proponents of Originalism are skeptical of constitutional rights that do not appear explicitly in the document’s text. They oppose ”liberal” interpretations of the Constitution that mandate a broad reading of the equal protection clause and they advocate a limited judicial role that forecloses opportunity to ’interpret’ vague Constitutional provisions. This American tradition of legal scholarship – theory, critique, countertheory – continued into the late 20th century, with the Critical Legal Studies movement, feminist theory, and critical race theory questioning the process and legitimacy of judicial reasoning. Rooted in post-modern interpretive theory, these schools of jurisprudence contend that legal principles reflect power relations in society. Law is but a reflection of politics and the interpretive process employed by judges is incapable of neutral, non-normative exercise. At its extreme, postmodern legal theory challenges the determinacy of legal meaning and suggests that legal reasoning is contingent on the beliefs of the decision maker.

21st Century American Jurisprudence: A State of Flux I started my comments by remarking that American Jurisprudence in the 21 century is in flux. This brief historical detour suggests that ”flux” is not limited to contemporary times but is perhaps endemic to legal theory in the United States. Nevertheless, in these early years of the third millennium, the jurisprudential ”flux” reveals unusually heightened tensions not only over the content of judicial interpretation but also over the legitimacy and role of the judicial process. The common law method requires judges to look to precedent, the decisions of other U.S. courts, for applicable legal principles. Over the last halfcentury, legal codes/statutes have come to play a central role in the judicial decision making process, governing questions as broad and diverse as environmental regulations and rights to equal treatment. One of the most st

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challenging, and vexing, tasks for a U.S. judge is to interpret the often-vague dictates of a legislative enactment. American judges also consult works of legal scholarship – law review articles, books, and legal treatises. Although legal education in the United States still focuses on the case method, with students required to read judicial opinions, analyze facts, and glean principles of law from judicial reasoning, many courses taught in law schools include legal treatises as required reading for law students. This is especially true in the most difficult and compelling of first year law school topics – constitutional law. Lawrence Tribe is one of the best-known constitutional law scholars in the United States. He is a law professor at Harvard Law School and has argued over 30 cases before the Supreme Court, most famously, the losing side of the 2000 case, Bush v. Gore. Professor Tribe’s seminal text, American Constitutional Law, a leading modern synthesis of American constitutional doctrine, was first published in 1978, and has been required reading for scores of law students. Professor Tribe published the second edition of his treatise in 1988 and published Volume One of the third edition in 1999. Professor Tribe has decided not to complete the Volume Two of this third edition, the section of his treatise that addresses individual rights. In an April 2005, letter to Supreme Court Justice Stephen Breyer, which was subsequently made public, Professor Tribe explained his decision. Tribe wrote that now is not a stable time in American jurisprudence. The Court’s recent decisions have been marked by rapidly changing and competing theories of constitutional interpretation, from which no organizing principle is emerging. Tribe wrote, ”conflict over basic constitutional premises is today at a fever pitch,” and the ”working materials of American constitutional law may be in the process of changing.” Tribe concluded that American jurisprudence is in a period of flux. In support of his position, Tribe cited the debate among Justices concerning the use of international and foreign law in court decisions, their colloquy in majority and dissenting opinions over the meaning of the establishment clause, and other contentious issues of constitutional interpretation. Tribe’s decision not to revise his treatise illuminates the great difficulty that is American jurisprudence in the 21st century: many of the issues now brought before the Supreme Court do not have objectively right or wrong answers; and many of the more difficult cases are decided by a margin of 5:4, sometimes with only one justice making the difference not only in the outcome

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in a particular case, but in the jurisprudential approach to a significant area of constitutional law. Cultivating a majority for a particular judicial decision often involves a process of compromise: how to draft a decision that will persuade a critical swing vote to join the majority. While this makes successful judicial politics, the art of judicial compromise can lead to narrow holdings based on opaque reasoning. Many of the Court’s recent majority opinions have been examples of judicial minimalism, decisions with limited resonance beyond the dispute at hand. However, in the pages of concurring and dissenting opinions, there has been a resurgence of the debate over jurisprudence, a debate that reveals very different understandings about the role and responsibilities of the judicial process.

Textualism vs. Active Liberty The dilemma of doctrine that Tribe references is epitomized in the competing legal philosophies of Supreme Court Justices Antonin Scalia and Stephen Breyer. Justice Scalia is perhaps the best-known exponent of the jurisprudential theory of Textualism. This doctrine holds that when deciding constitutional questions, judges must look to ”original intent” as evidenced by the language of the Constitution. Contemporary constitutional questions should be resolved with reference to how the Constitution’s text would have been understood by a reasonable person in 1787. This theory is a response to the anti-majoritarian dilemma: nine unelected officials rendering decisions that affect the social order should not be free to impose their personal will. Judges are constrained by the language in the document that empowers them: the U.S. Constitution. Justice Scalia, speaking at a conference just a few months ago, spoke out against judicial activism and a more elastic theory of constitutional interpretation: ”[Y]ou’d have to be an idiot to believe that ... The Constitution is not a living organism – it is a living document. It says something and doesn’t say other things.” Proponents of Textualism often criticize ”activist judges” who ”legislate from the bench”, usurping the authority of elected officials, and reading into the Constitution’s text rights and protections not evident from the document’s plain language. Textualism suggests that judicial competence in the sphere of constitutional law should be limited to legal issues capable of resolution based upon the Constitution’s plain language. Legal questions that involve questions of social

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

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disagreed on the necessity of including a Bill of Rights, disagreed on the contents of that Bill of Rights, have nonetheless agreed about what school of interpretive thought should be used to interpret the Constitution?” Textualism’s interpretive method leaves plenty of room for subjectivity and fails to produce clear rules of interpretation. Breyer notes that cases decided pursuant to this methodology can result in bad consequences – as Professor Sunstein also suggested. Textualism, in Breyer’s view, is not an acceptable jurisprudence. Breyer does not offer an interpretive theory, per se, in Active Liberty. To the contrary, he explains that no single theory will capture the true meaning of the Constitution. Rather than search for theory, judges should look to the principles that animate the Constitution. The Constitution should be read in light of its overarching goal: creating and preserving a participatory democratic society. Judges are obliged to employ principles that will most effectively realize the fundamental values underlying the U.S. Constitution: democratic self-government. They should ”pay attention to consequences and seek to render decisions that make government work better.” Because the process of constitutional interpretation is inherently subjective, this process is safe only if it engaged in modestly, with prudence, and with an emphasis on democratic values.

Continued Flux: Recent Examples The debate over jurisprudence, as the discussion above illustrates, is alive and well in the United States. In fact, on March 22, 2006, just last week, this debate surfaced in a U.S. Supreme Court case. The facts of Georgia v. Randolf are straightforward: Mr. Randolf’s estranged wife gave the police permission to search their home for evidence of drug use. Mr. Randolf, who was present at the time of the search, unequivocally refused consent. Cocaine was found. The trial court denied Mr. Randolf’s motion to suppress the narcotics as the fruits of an unlawful search in violation of the 4th Amendment. The Georgia Court of Appeals reversed the trial court and the Georgia Supreme Court affirmed this reversal, holding that the search was invalid because the homeowner was present and refused. In a decision written by Justice Souter, the majority of the Supreme Court affirmed the Georgia’s Supreme Court’s ruling, finding that a consistent theme of the Court’s 4th Amendment jurisprudence is reasonableness – in this case, the ”great significance given to widely shared social expectations which are

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influenced by property law but not controlled by its rules.” The principle that ’a man’s house is his castle’ is one such fundamental social expectation, Souter wrote, and ”disputed consent is not match for this central value.” As often happens, the jurisprudential debate took place in the concurring and dissenting opinions. Justice Breyer wrote a concurrence in which he elaborated on the interpretive method set forth in Active Liberty. Breyer noted that the 4th Amendment does not insist on bright line rules. ”Rather, it recognizes that no single set of legal rules can capture the ever changing complexity of human life.” Justice Stevens also wrote a concurrence. In a direct critique of Scalia’s textualist methodology, Stevens noted that if the Court’s interpretive process were confined to divining the mindset of 18th century jurists, the consent of a wife would not even be a valid consideration, as women’s rights during this era were seldom considered. According to Stevens, this illustrates the limits of Textualism and the importance of a jurisprudence that acknowledges changes in American society. Scalia’s dissent took issue with Steven’s concurring opinion, arguing that Justice Steven’s critique confuses ”the original import of the 4th Amendment with the background sources of law to which the Amendment, in its original meaning, referred.” While the import of this exchange is somewhat unclear, its very existence illustrates the vigor of the contemporary American debate over jurisprudence, especially as it influences the interpretation of the Constitution. As referenced earlier in my comments, debates over jurisprudence have spilled into the political arena, in some cases even penetrating popular culture. One prominent example is the propriety of U.S. courts citing the judicial decisions of foreign and international tribunals. In recent years, some Justices of the Supreme Court have cited foreign cases, not as binding precedent but rather as examples of how other nations have handled similar legal questions. These Justices explain that a comparative jurisprudence may shed light on trends in moral thought that can assist U.S. courts as they grapple with increasingly 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 stated that the decision of a foreign court can be binding precedent for a U.S. Court. However, the opposition has been loud and definitive, perhaps because Court decisions that have referenced rulings of foreign tribunals have involved parti-

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cularly contentious legal issues, including the execution of the mentally retarded and juveniles, affirmative action, and the privacy rights of homosexuals. The critique of this practice is two fold: first, that all that should matter in a U.S. court is U.S. law and legal values. As Justice Scalia has said, he is a judge of a United States federal court not a court in Europe, South Africa or elsewhere. A second criticism is that citation of foreign judicial decisions is a practice that can be engaged in selectively to justify a judge’s personal preferences. Judge Richard Posner, a judge on the Seventh Circuit Court of Appeals, published an article in 2004 in the journal, Legal Affairs: ”No Thanks, We Already Have Our Own Laws.” Posner writes that the judicial systems of other countries have their own unique histories, institutions, and methods. U.S. judges are unfamiliar with this context and hence their citation to foreign opinions is both selective (they cite the foreign decisions they like) and irresponsible. Criticism has filled not only the pages of law review articles and legal journals, but also the Congressional Record. In 2004 a bill was introduced in Congress – The Constitution Restoration Act – that sought to prohibit the Supreme Court from relying on foreign law in interpreting the Constitution. This issue has become a rallying point for critics of the judiciary, those who believe the spirit and activities of the Warren Court live on, with activist judges placing American democracy in jeopardy. During a speech last year in South Africa, Justice Ruth Bader Ginsburg revealed that she and Justice O’Connor were the subjects of Internet death threats, threats that cited the Justices’ reference to the decisions of foreign courts. The debate over the relevance of foreign and international law in many ways goes to the heart of the debate over jurisprudence: constitutional interpretation. Are judges bound by the four corners of the Constitution and the ”original intent” of the Constitution’s authors, or is the interpretive process sufficiently fluid to allow not only a jurisprudence that responds to changes in U.S. society, but one that looks beyond national borders. The United States is a diverse and nuanced country, a melting pot with people of different ethnicity, race, religion, and values. It is no wonder that there is not only no single American Jurisprudence, but that as divisions in society become more prominent, the tenor of the jurisprudential debate has intensified. Some of the disagreement over what courts do – should do or should not be doing – has, as in the case of the threats to Justices Ginsburg and O’Connor, resulted in anti-judge sentiment. In the state of South Dakota, a ballot measure that would eliminate judicial immunity and subject judges to

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liability for their rulings garnered over 40,000 signatures. This is but one example of popular outcries condemning what is perceived as an elitist judiciary that has overstepped its authority.

Does a Judge Need a Jurisprudence? It has been said that theories do not decide cases, judges do. Although interpretive method is often condemned as being hopelessly influenced by ideology, the fact that judges strive to ground their jurisprudence on neutral interpretive principles suggests they are aware of the importance of a transparent and legitimate process. In recent years, legal scholars have attempted to establish empirically the influence of ideology on judicial decision-making. The publication Judicature has published a number of articles describing voting patterns among judges appointed by Democratic and Republican presidents, noting trends and highlighting examples of when presumed political ideology appears to influence rulings in certain classes of cases (among them, cases reviewing environmental regulations, labor rights, and criminal sentencing). A recent study published in the journal Law & Society Review examined Supreme Court decisions in cases that involved conflicts among judicial circuits (cases in which the U.S. courts of appeals reached different conclusions regarding the same questions of law). The study sought to investigate ”the impact of jurisprudential considerations on Supreme Court decision making.” Its authors did not reach a definitive answer to this question, but did conclude: ”We think it is fair to characterize our evidence as suggesting that the desire to find legally sound, persuasive solutions to legal questions plays a significant role in Supreme Court decision making.”

Conclusion Perhaps the difficulty of articulating an American jurisprudence for the 21 century – a difficulty experienced in the 18th, 19th and 20th centuries as well - is due to the complexity of the decision making process in legal cases. Judges st

Law & Society Review, Vol. 40, No. 1 (2006). Linquist at 156-157

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are asked to address challenging questions of law, often in the context of challenging facts. At their disposal, pursuant to the common law system, is an established methodological ”tool kit”: (i) binding precedent (stare decisis); (ii) analogical reasoning; (iii) canons of statutory and constitutional construction; and (iv) institutional competence. Examining the these tools, the difficulty of the enterprise is underscored: there are cases without dispositive precedent; when there is precedent, it is often written narrowly, sometimes reflecting a judicial compromise born of the necessity to generate a majority. Statutes can be poorly drafted. Though this lack of clarity may be accidental, it also may reflect a political compromise among legislators. Similarly, the U.S. Constitution is replete with vague and general language. This founding document was also born from compromise. The differing ways judges put this methodological tool kit to use is informed by a jurisprudence, sometimes deliberately, as in the case of Justice Scalia, sometimes without an acknowledged or principled basis. Jurisprudence is an effort to provide an explanatory template for the act of judging, a template that serves to provide logic and legitimacy to the judicial process. This explanation is exceedingly difficult to achieve in large part because the process is often so difficult. The longevity and intensity of the debate over jurisprudence suggest that efforts to achieve a coherent philosophy of judicial methodology will likely involve compromise. Perhaps the most notable feature of the quest to discern an American jurisprudence for the Third Millennium is extent to which this debate has engaged not only judges, lawyers, law professors, and Congress, but also citizens – those on whose behalf this quest is undertaken.

2 Prof. Gordana Vukadinović, PhD Faculty of Law, Novi Sad, Serbia

CONTEPORARY AMERICAN JURISPRUDENCE AND SERBIAN THEORY OF LAW AT THE BEGINNING OF THE TWENTY-FIRST CENTURY

Abstract: In theories contemporary American jurisprudence, there are many dierent orientations. Numerous approaches, orientations and theories also mark the Serbian theory of law, such as natural theory, sociological, integral approach, etc. Furthermore, natural law theory in the USA, as well as in Serbia, have emphasized the same stipulation regarding ”quality and quantity” of the law in order to establish the Rule of law. Then, there are also some similarities in critical approaches to the law, but with dierences in theoretical-methodological basis. Initiative and influences of American jurisprudence are also evident in the area of legal education and legal ethics. Key words: theory of law, law, morality, natural theory of law, legal ethics

I If we perceive changes in theory within a wider framework – they have, alongside with the establishment of the constitutional foundations of the civil era, contributed to a new epochal picture of the world and the powerful development of legal awareness. These changes are related to the systematic creation of laws and new legal institutions, as well as to the development of legal reflections as expressed through main currents in German, French, Italian, and, since the second half of the 20th century, Anglo-American legal thought. If we want to examine a certain segment of this thinking and uncover the most distinguishing characteristics of contemporary American jurisprudence; that is to say, if we want to know what the main approaches are, what influences it exerts or undergoes, and to research its ”encounter” with European and within it Serbian theoretical

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and philosophical thought – it is first necessary to trace the map of legal theories, approaches, and currents that have marked contemporary American jurisprudence since the beginning of the 21st century. The research we have been conducting for some time indicates the following main currents in American jurisprudence: natural theory of law, American Legal Realism, Critical Legal Studies (in further text CLS), Law and Economics, Law and Literature, Communitarianism, and feminist jurisprudence. Since Antiquity and to the present, Natural theory of law has been a fixture in European as well as American legal philosophy. Its permanence can be attributed to the law’s complex and hierarchical duality, whose content is ethically perfect (ideal), and that finds expression through justice or the general good. The principles of the natural law are superior to those of the positivist law 1 . In American jurisprudence, we can find its complete conceptions in works of John Finis and Lone Fuller. As many authors have stated, American Legal Realism has not been a coherent intellectual movement, a consistent law theory. It more closely resembles a standpoint than a clear system of principles; more an assembly of often contradictory conceptions than a firm structure of methodological and theoretical conceptions 2 . The beginning of Legal Realism in America can be traced to 1930 when Karl Llewellyn, a law professor at Columbia University, published an article entitled A Realistic Jurisprudence – the Next Step, and when Justice Jerome Frank first used the term legal realism 3 in his book Law and the Modern Mind. Theoretical and methodological sources of American Legal Realism can also be found in Oliver Wendell Holmes’ pragmatism 4 as well as in sociological jurisprudence, especially in the work of Roscoe Pound. 1

G. Vukadinović, R.Stepanov: Teorija prava (Theory of Law), Vol. I, Petrovaradin, 2001, pp. 170-187 2 M.J. Horwitz: The Transformation of American Law, 1870-1960, Cambridge, Harvard, 1977, pp. 169, etc. 3 K. Llewellyn: A Realistic Jurisprudence – The Next Step, Columbia Law Review, April 1930; J. Frank: Law and the Modern Mind, London, 1930 4 Holmes is mostly referred to as one of the four ”fathers” of progressive legal thought. It is emphasized in literature that the development of American legal thought since 1870 till today has had six phases. The first is the period from 1830 to the last decades of the 19th century and is referred to as classical legal thought. The second is called progressive legal thought. The third is legal realism dominant during the thirties in the 20th century. The fourth, from the fifties on, is marked by negation and opposition to the legal realism – the antirealist legal

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

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the courts; a court ruling is a rationalization a priori; 7) Unlike traditional theorists, they support the grouping of cases and situations to more constricted categories and classes; 8) They emphasize the importance of evaluation of every segment of the law in relation to the consequences and they conduct researches on the consequences; 9) Each problem connected to the law has to be analyzed in connection with the previous points 6 . Certainly, American Legal Realism has contributed significantly to the study of the law by insisting on the eects that the rulings have in practice and putting an accent on the conduct of the judges while making decisions. In other words, it focuses on the application of the law. However, even some of the representatives of Legal Realism have objections to it. For example, H. Yntema points out that American Legal Realism neglects the humanist side of the law, overlooks the law’s comparative and historical aspects, and places too much emphasis on concrete current practice. In so doing, he highlights how this approach fails to distinguish the main from the ephemeral, and the relevant from the irrelevant. Nevertheless, its main weakness is the over-emphasis of the court’s role in creating laws, especially Gray’s and Frank’s notion that ”the judge has sovereign prerogative to chose a legal rule among alternatives that he will apply in a certain case” 7 . When it comes to the critics in the United States, American Legal Realism has suered the attacks of the antirealist movement. Since the 1950s, the Catholic Association for Philosophy and catholic universities have been attacking realist pragmatism by equating it with the nihilism and qualifying Holmes’ ideas as totalitarian, while equating the realistic Thomism they advocate with democracy. Since American Legal Realism neglects the ethical component of law and its connection to the moral, the ideas of the ”realists” are incomplete and therefore subject to critiques. For that reason, Llewellyn and Frank add elements of the natural law to their conceptions. Those transformations indicate further development of numerous new orientations and additional movements in American jurisprudence, such as, besides the natural law, CLS, Economic Analysis, etc.

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K. 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 stvaranjem prava,(The Realization of the Law, its Character, Relation and Connection to the Creation of the Law), doctoral thesis, Podgorica, 1994, pp. 101-103). 7 K. Čavoški: Uvod u pravo (Introduction to the Law), Vol. I, Belgrade, 1994, pp. 32

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These two abovementioned approaches to the law were dominant in the United States in the 1970s. The first, CLS, embodied the intellectual criticism of academic elites, while the latter School of Economic Analysis was formed by lesser-known economists who approached the law in perspective of the costs and use (profit). It was only in 1980 when Ronald Regan was elected president of the USA that this school, known also as The Chicago Law School, started to influence political and legal issues and became a discipline at all the universities in the USA 8 . The foundations of the Law and Economics school can be found in the works of Ronald Coase and Guido Calabresi 9 , and its best developed ideas are those of Richard Posner, its most important representative 10 . All those belonging to this movement support the application of market analytical principles towards solving the social diiculties that aect postindustrial society. Recognizing that there is a tight connection between law and economy, they emphasize that law is based on the principles of economics, and – above all – on rationality and eiciency. Legal regulations should ensure the most eicient allocation of economic funds and resources, and with that society’s prosperity. Given the fact that there are less goods or resources than needed to meet the demand, a legal solution should facilitate that the goods are used so as to maximize benefit.11 Richard Posner wants to apply methods of economics to all the aspects of the law. His starting point is the fact that ”the presence of the economy in the law is the foundation of the positive theory of this aspect of the law is the most 8

Economic Analysis has spread through Europe as well. Therefore a new subject was introduced at some universities in Germany – Economic Analysis 9 R. Coase: The Problem of Social Cost, Journal of Law and Economics, 3, 1960; G. Calbresi: Some Thoughts on Risk Distribution in the Law of Torts, Yale Law Journal, 70, 1961; The Costs of Accidents, A Legal and Economic Analysis, New Haven – London, 1970 10 R. Posner; Economic Analysis of Law, Boston – Toronto, 1972; The Economics of Justice, Harvard, 1983. There is vast literature on this school. A symposium was held in 1980 on the subject: Efficiency as a Legal Concern, Hofstra Law Review, 8, 1980; L.A. Kornhauser: L’analyse economique du droit, Revue de Synthèse, 1985; P Bechrens: Askekte einer őkonomicher Theorie des Rechts, Rechtheorie, 4, 1981; H-D. Assmann, C. Kirschner, E. Schanze (hrsg): Őkonomiche Analyse de Rechts, Kronberg / Ts, 1978; Z. Grebo: Osnovne postavke ekonomske analize prava (The Basics of Economic Analysis of the Law), Pregled, Sarajevo, No. 6-7, 1987. A more detailed list of literature in A. Jovanović: Uvod u ekonomsku analizu prava (The Introduction to the Economic Analysis of the Law), Belgrade, 1998; V. Vodinelić: Građansko pravo, uvodne teme (Civil Law, Introductory Topics) Belgrade, 1991, pp. 141-144 11 V. Vodinelić : op.cit., pp. 142

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promising”. Seeking to increase social wealth and maximize the gross domestic product, Posner argues that the law’s purpose must be the maximum increase of the wealth, and not the support for the state of prosperity.12 In his work The Problematic of Moral and Legal Theory 13 , he rejects the role of moral theory in legal research and advocates a pragmatism that resembles that which Oliver Wendell Holms espoused at the beginning of the century. Posner also believes that certain economic notions and principles are typical of the economic analysis of the law. First, he contends that any analytical starting point must recognize that resources are rare and limited because we live in the world of scarce resources (e.g. capital, labor, money, land, and other natural goods, life, health, time, etc.) Second, individuals make decisions that are in their personal interest and they strive to maximize their benefit.14 ”People are systematically behaving rationally, meaning that they look for the best connection between rare resources and the goals they want to achieve.” That means that they try to make the realization of this maximum goal possible, by making the right decision based on the given resources. On the other hand, rational behavior means that the goal is achieved with minimal resources and costs. Therefore, rational behavior is illustrated by the ”maximization of the results/eects (for given costs – resources)” or minimization of the costs (for the given goal)”15 . Third, the subject matter of the economic analysis revolves around individual decisions, because the behavior of groups, organizations, and even nation-states can be observed through the decisions made by individuals. This approach is extremely important from the point of view of political, corporate, and familial decision-making. Fourth, economics is a science of rational choice starting with the limited resources condition and the assumption that man rationally maximizes his objectives. Therefore, the task of economics is to examine the consequences of decisions, regarding the scarce resources selected in order to achieve a goal. Fifth, the basic instruments of economic analysis are supply and demand. ”Supply is formed based on the relation between the costs of production of the goods and its price. Demand is established based on the relation of the utility a consumer gains from use of the product and its price. The interaction between the supply and demand forms

12

Z. Grebo: op.cit., pp. 466 A. Posner: The Problematic of Moral and Legal Theory, Harvard, 2002 14 Utility is defined as a sense of satisfaction that a certain individual gains from an economic activity he undertook, that is from the decision one made. (A. Jovanović : op.cit., pp. 18) 15 Ibid. 13

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determines the price and the quantity of the goods on the market.” Sixth, eiciency means that the resources are used where they have the maximum value. This definition of eiciency broadly includes all individual decisions on the use of the resources with which individuals seek to maximize their own benefit. When it comes to the legal system, economic theory considers the eects of legal rules in terms of the eicient allocation of the resources, and not in terms of ethics. If we try to approach the School of Economic Analysis at a conceptual level, it can be reduced to the following four postulations: behaviorism, normative and descriptive approach, and evolutionism. 16 Alternatively, the Critical Legal Studies movement was founded in 1977 at a conference at the University of Wisconsin-Madison with the goal of critically questioning legal phenomena 17 . The Movement progressed 18 in a short period. Not only did the number of members increase 19 , but their philosophical, theoretical and methodological sources became more diverse and the area of research broader 20 . That is why it is nearly impossible to define its common traits. The reasons for CLS’ influence and popularity partly stem from the specificity of American culture and the national prestige of its exclusive ”centers” – i.e. Harvard and Stanford Universities – but to a large extent also from the intellectual ”fashion” or popularity of certain theoretical currents and approaches. Still, CLS is undoubtedly a turning point compared to the previously accepted ideas – especially those of legal realists – because the movement perceives law as a multitude of social rules or, as one of its most important representatives has more precisely stated, CLS is ”a new way of interpretation and application of the law” 21 . Its adherents believe that the law exists in order to 16

L.A. Kornhauser: L’analyse économique du droit, Dictionnaire encyclopédique de théorie et de sociologie du droit, Paris, 1988, pp. 129-131 17 But, one should look for the origins of the Movement some twenty years before when most of the authors, that is founders of the movement, were already politically engaged in the fight for human rights and against the war in Vietnam. 18 The first European meeting, where the name Critical Legal Studies (abbr. CLS), was held in March 1981 in London. 19 In the Bibliography of CLS from 1984, 150 academic authors are mentioned. D. Kennedy and A. Klare: Bibliography of Critical Legal Studies, 94 Yale Law Journal, 461, 1984. 20 Jurisprudence, international public law, family, labour law, etc. 21 R. Gordon: Unfreezing Legal Reality: Critical Approach to Law, 15 Florida State University Law Review, 1987, pp. 195

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ensure realization of group, party, or class interests. In the view of its advocates, the rich and the powerful use law as an instrument of force in order to maintain their position in the social hierarchy. CLS’ fundamental stance is that the law is a political instrument; it is not neutral, let alone beyond values. Many members of this movement advocate a change in the hierarchical structure that favors domination in the modern world. There is a faith in the possibility and need for the radical and discontinued change 22 . Critical Legal Studies is mostly associated to Roberto Mungabeira Unger and Duncan Kennedy, who is called the forefather of CLS, but also linked to Robert Gordon and Catharine MacKinnon 23 . All of these authors stand for the critical approach to the law but adopt dierent practical, theoretical, and methodological starting points (i.e. American Legal Realism, Marxism, feminism and post-structuralism). If, as A. Kaufman used to say, we continue to overcome the ”diiculty of the generalization” regarding the CLS then it is necessary to point to its critical attitude towards the School of Economic Analysis and empirical legal positivism. On the other hand, CLS is connected to the feminism, or more precisely, there is a feminist approach24 to the law within CLS, that is mostly interested in researching the role and importance of sexes in the law and in the human law in general. If we look at the totality of CLS, the movement itself contains enough elements that could be seriously criticized. Realists freed the law from the past in order to make an eicient instrument – politics. CLS on the other hand attempts to reveal its true face by criticizing it, but does not oer any response to 22

R.M. Unger: Znanje i politika (Knowledge and Politics), Zagreb, 1989, pp. 324 More on CLS: R. Abel: The Politics of Informal Justice, Vol. II, New York, 1982; P. Beirne and R. Quinney: Marxism and Law, New York, 1982; R. Gordon: Critical Legal Histories, 36 Stanford Law Review, 57, 1984; R. Gordon: New Development in Legal Theory, D. Kairys: The Politics of Law, New York, 1982; M. Horwitz: The Transformation of American Law 1870-1960, Cambridge, 1977; M. Jay: Dialectical imagination: A History of the Frankfurt School and the Institute of Social Research 1923 – 1950, Boston, 1973; D. Kairys: The Politics of 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, 7 Signs 515, 1982; C. Summer: Reading Ideologies: An Investigation into Marxist Theory of Ideology and Law, London, 1979; E. Thompson: Wigs and Hunters – the Origin of Black Act, New York, 1979; R.M. Unger: Law in Modern Society, New York, 1976; R.M. Unger: Knowledge and Politics, New York, 1975; R.M. Unger: Critical Legal Studies, New York, 1986 24 For the International law see : H. Charlesworth: The Feminist Methods in International Law, American Journal of International Law, Vol. 93, April 1999, No. 2, pp. 370-394 23

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the question of what the law should be like. The only goal of the critique is the critique itself. Nevertheless, CLS’ most important advocate, Roberto Mugabeira Unger, has made the most consistent eort in trying to build a positive theory for the change of existing society. First, he criticizes liberal doctrine in order to reach another, as he says, alternative doctrine called personality theory. Unger deems this the foundation for the definition of social ideal. Above all, he wants to ”establish a theory of human emancipation as well as a theory of law based on the idea of a man, similar to the one of G. Radbruh” 25 , and to the one J.-J. Rousseau 26 made, but with dierent bases, long before him. In spite of critiques concerning the individualistic conception of personality, he should be recognized because he managed, starting with a critique of the liberalism, to set up an organization of the society that would exchange the liberal state and its existing legal system. With Unger, at the end, all the previous presentations are nothing but a summary review of widespread movement 27 that continues to exist in America. Marked by eclectism, CLS has kept its negative orientation to the law and American authors within fragmentary approaches to the law refer to it as academic nihilism. In addition to the already mentioned approaches, there is another with important members in America – Law and Literature, advocated by R.A. Posner28 . He compares law to the forms and structures of literal works. Using the terminology and methodology of literary theory, this movement gives a possibility to understand the juristic discourse unrelated to dogmatism. It nevertheless goes beyond Dworkin’s question as to whether law can be interpreted equivalently with literature.

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A. Kaufman: Pravo i razumevanje prava (Law and Understanding of the Law), Belgrade, 1998, pp. 293. 26 For Rousseau natural rights to freedom and equality express the basic attributes of human nature. G. Vukadinović: Žan-Žak Ruso i prirodno pravo (Jean-Jacques Rousseau and Natural Law), 3rd edition, Petrovaradin, 2005. 27 Even at the last symposium in the USA, dedicated to Methods in International Law, the importance of CLS was pointed out. The movement researched what the law consists of, or the relevance of the law to politics, focusing on contradictions, hypocrisy and false international legal discours. A group of authors around CLS, that often referred to itself as to a New Stream emphasized the importance of culture for the development of law, and offered a critique of the progress of the law in confrontation with state sovereignity (American Journal of International Law, April 1999, Vol. 93, No. 2, pp. 294) 28 R. A. Posner: Law and Literature, Harvard, 1988.

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In addition to the previously mentioned streams, Posner also includes feminism, comunitarianism and multiculturalism in contemporary American jurisprudence 29 .

II In our theory of law after having been dominated for nearly half a century by the almost exclusive conception that the law was the will of the ruling class, and that the state was the organization with the monopoly on physical violence, pluralism is beginning to replace this view in the comprehension of the law. Besides that, a new attitude has been ”breaking through” during the last two decades – an attitude that believes that values such as human dignity, justice, freedom, tolerance are the criteria for both the foundation of the law and compulsory legal norms 30 . Values as attributes of the notion of the law can be found in such authors who, rather than advocate natural law theory, support integralism. ”Law is not a plain norm but expresses a specific social process for which a certain type of social relations, values and norms are typical”. In other words, ”law is a reality whose purpose is to be at the service of the society, its order, its peace and its maintenance. While basic values are: legal safety, and legal eiciency, or preservation of man and society.” 31 It is clear that law can be perceived as a whole only through integralism, though it does not merely serve to preserve but also develop man and society as well. During last few years we have increasingly seen more respectable authors estimating that there has been ”a renaissance of the idea of the natural law”, and that our and American theories are getting closer . A complete, original and developed conception of natural law can be found in the work of prof. Slobodan Perović 32 , founder and main representative 29

R. Posner: The Problems of Jurisprudence, Harvard, 1993, pp. 393 etc. In contemporary philosophy of law, in the world a certain jusnaturalism appears not only in a political sense of human law, but more in a legal sense of faith in a function and natural functioning of law and lawyers. (R. Sève: Avant-Propos, Archives de philosophie du droit, 1988, t. 33, 21). Relation between the justice and law ant the role of justice in law and through the law are particularly considered by Ch. Perelman, M. Villey, J. Rawls , R. Nozik, F. A. Hayek, G. Hoffe, and others. 31 S. Blagojević: Pravo i stvarnost (Law and Reality), Belgrade, 1995. 32 S. Perović: Pravno-filozofske rasprave (Legal and philosophical discussions), Belgrade, 1995. 30

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of the Kopaonik School of natural law 33 . The Kopaonik School of Civil Law grew into the School of Natural Law. The Kopaonik School, especially during its period of isolation from world heritage and general legal culture, has not only been ”a scientific but a cultural success that cannot be compared to any other in the world”. Works printed in volumes of a publication Pravni život (Legal life) are proof of the most serious scientific and expert critique of the law and the state during an extremely diicult totalitarian and authoritarian period. In that work, we can see that two critically oriented approaches – CLS in America and the Kopaonik School have certain similarities despite their dierent theoretical and methodological foundations. The first conclusion that strikes us is that natural theory of the law in both the United States and Serbia puts an emphasis on the same demands regarding ”the quality and the quantity of the law” 34 . L. Fuller starts with the law that one can respect, which has a minimum of morality. Unless legal norms do not contain a minimum of morality, they cannot be eicient and therefore they cannot be called legal at all. Fuller vividly describes the most obvious ways for the legal system to end in failure or a catastrophe. They are: first of all 1) the situation where rules are not established and each case is solved ad hoc; then, 2) if legal rules are not published and are not available for the use of those who are expected to obey them; or 3) if retroactive action is misused, that does not only prevent the eect of the norm in the future but also endangers the integrity of the rules, the fact that they are prospective in eects; or 4) rules are expressed in incomprehensible terms; 5) rules contradict one another; 6) passing of the rules that demand impossible behavior; 7) frequent changes of the rules that result in the incapability of the subject to act according to them; and at the end 8) failure to synchronize published rules and their application. 35 In other words, Fuller holds that the existence of any of these shortcomings not only results in a bad legal system, but something that cannot be called a legal system at all. Naturally, man cannot have a moral obligation to obey a legal rule that does not exist, which he does not know of, is being created at the moment when he has already acted according to another rule, is incomprehensible, contradictory with

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B.S. Marković: Poruka učesnicima savetovanja, (Message to the participants of the consultation), Pravni život ( Legal life), 1995, No. 1-2, pp. 19 34 S. Perović: Pravno-filozofske rasprave (Legal and philosophical discussions), Belgrade, 1995. 35 L.L. Fuller: Moralnost prava (Morality of Law), Podgorica, 1999, pp. 42 etc.

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another rule from the same system, requests something impossible, or which is being changed from minute to minute36 . Most authors in our literature agree on the fact that one of the key reasons for legal ineiciency is the great degree of incoherence between social reality and law, ”in the sense of necessary dose of legitimacy of the law, and through a variety of nuances, to its formal and essential disharmony” 37 . Even so, a faith that with law anything can be regulated still exists and it is obvious that, although powerful, the law is not an omnipotent instrument 38 . Other flaws in the law can be added: hasty solutions, taking the solution of the ”others” that does not correspond to the reality, the often equivocal language of the law and its complicated messages with multiple possibilities of interpretation 39 . All these flaws lead to other legal flaws and it becomes enormous, disharmonic, subject to change, and therefore diicult if not impossible to apply at all 40 . Both our and American philosophical thoughts give solutions to the same questions in order to achieve a realization of the legal state, that is to say the Rule of law. At their core, all of these discussions have the basic problem, which is according to Fuller ”the morality of the law”, the question of the relation of the law to moral values. On the other hand, the ”critical approach” to law is in both spirit and name very similar to CLS. In our country the Kopaonik School of Natural Law, was developed on the basis of the natural law and has been gathering at its annual December meetings around 2000 lawyers, in the volumes of the review Pravni život (Legal life), and in about 4000 works, a combination of theory and practice. Additionally it oers a severe and thorough critique of the existing law and visions of possible solutions. Other than the previously mentioned similarities, one could then ask what the influences of Anglo-American jurisprudence41 are on our theoretical attitudes in the area of university education 42 . The influence of American theory can be observed in the area of legal ethics concerning educational issues. 36

Op.cit., pp. 43 etc. S. Perović: Pravno-filozofske rasprave (Legal and philosophical discussions), Belgrade, 1995. 38 Op. cit., pp. 386 39 Op. cit., pp. 394 40 Op. cit., pp. 395 etc. 41 Theme number: L’Américanisation du droit, Archives du philosophie du droit, T. 45, 2001 42 We are leaving aside an important area of practical reception, above all the practice in contractual law. 37

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At the initiative of the American lawyer’s association (Bar) Legal ethics has been introduced as an optional subject in the programs at our Faculties of Law (Schools of Law) 43 . Despite causing some program, literary, and organizational diiculties, the subject has attracted greater numbers of students in the past four years, in large part because of its new method (e.g. use of the case study), current topics, and problems. Over the past four years, the group has increased from 40 to 300 students, with participants attending lectures in legal ethics. Its connection to practice and some of the most eminent legal associations and experts, namely the Lawyers’ Association of Vojvodina, has additionally improved the quality of the program and influenced the number of students. When it comes to educational programs and research works, we would like to point out that individual research in the area of American jurisprudence the post-graduate studies in theory of law started more than a decade ago. Later on, they grew into a single coherent and integral research task. In that perspective, the concrete results are two finished master theses while a third is being prepared at this moment. A doctoral thesis is also being prepared on the iusnatural theory in America. Moreover we have presented the main developmental streams in American jurisprudence in a legal theory textbook 44 for first year students of Faculty of Law. A monograph, entitled Legal Thought of the 20th Century 45 , was subsequently printed with an important part dedicated to Rawls, Dworkin, Fuller, Finis and Pound. We have done much more, and numerous articles, supplements, and presentations are evidence of that. Of course, ”the list” of influences does not end there. We could also talk about other spheres of influence, but when it comes to the areas of theory and legal philosophy, we have done a lot to bridge our experiences and consider these eorts to be a small part of our overall potential and aspiration.

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G. Vukadinović, S. Beljanski: Deontološka etika i pravno obrazovanje (Deontological Ethics and Legal Education), Pravni život (Legal life), No. 7-8, 2004, pp. 122 44 G. Vukadinović: Teorija prava (Theory of Law), Vol. 2, Petrovaradin, 2006 45 R. Stepanov, G. Vukadinović: Pravna misao XX veka (Legal Thought of the 20th Century), Petrovaradin, 2000

3 Prof. Agneš Kartag-Odri, PhD Faculty of Law, Novi Sad, Serbia

NEW PERSPECTIVES IN AMERICAN LEGAL THEORY Abstract: The author’s intention is to identify the concepts that have structured feminist legal theory in the late 20th century in the USA. Her eort is to trace the variety of ways in which these concepts have been transformed, critiqued and appropriated. At its results, there are some ’key words’ in legal feminism that are becoming a part of scientific debates and legal terminology. Since these terms are finding their place in Serbian legal and political thinking, the article starts with defining basic terms and naming the disciplines. Feminist legal theory is expressed by a triangular model: women–legal theory–law reforms. Since feminist theory is not monolithic, and it is not constructed as a relatively unitary genre, the central part of the article is devoted to liberal, radical, cultural and dierence feminism. The conclusion contains some possibilities of how to create some attachment to legal feminism in order to ensure the visibility of relevant feminist topics, which may result in law reforms, new laws, mechanisms and institutional changes for the improvement of women’s human rights. Key words: feminist legal theory, feminist jurisprudence, dierence feminisms, women’s human rights ”Like people and schools of criticism, ideas and theories travel – from person to person, from situation to situation, from one period to another, and as theory travels, so it is transformed by its new uses, its new position in a new time and place.” 1

1

Said, E.: The world, the Text and the Critic (London: Vintage) 1983:226

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I Introduction The aim of this paper is to identify the concepts that have structured legal thinking in the period since the second half of the 20th century, indicating their provenance in ”travelling theory” in the USA. On their way these ideas and discourses meet with other traditions of thought and practice, producing plural forms, which in turn circulate within transformed theory. Since most cultures are (as a consequence of globalization), interwoven, none are single or pure. On the contrary: they are rather heterogeneous and non-monolithic.2 No longer is it possible to speak about a singular legal theory, nor has this been a one-way process. Legal feminism has also travelled a long way (since liberal feminists demand the right to equality, based on neutrality and sameness). In academic circles and university curricula, legal feminism is becoming increasingly accepted as a force, but it is powerful as a movement of potential that is capable of producing; transformations of reforms in the legal system and policy. Feminist legal theory and feminist politics of the 1990’s in the USA have a fresh set of priorities, with an emphasis on women’s human rights, with a renaissance of feminist theory in law and in academic knowledge. These newly recognized ideas might end in law reforms for the improvement of women’s position and of their human rights. The tendency is to reconceptualize the knowledge itself, which academic feminism reflects in a new institutional practice. On its way of travelling, the altered understanding about gender has emerged in a number of disciplines. Feminist theory has taken a prominent place not only in literature but also in law, anthropology, economy, history, medicine, media, psychoanalysis, and sociology. Therefore, not avoiding an interdisciplinary approach, we shall focus on feminist contributions in law (including legal feminism, feminist jurisprudence, and feminist scholarship in law) and its impact on law reforms and changes in the legal system and institutions. Contemporary legal feminists (western and non-western, especially those who are seeking accession to the EU) ask some fundamental questions about gender and human rights using the EU framework to secure equality, non-discrimination, and airmative action, and to fight degradation, exclusion, and violence. Our intention is also to emphasize a strong association and substantial ainity between feminism and theories of human rights, since rights have a 2

Said, E.: Culture and Imperialism (London: Chatto and Vindus) 1993: XXIX

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crucial place not only in modern jurisprudence and political thought, but also in campaigning for gender equality. One of the reasons for this is that both feminism and human rights have grown out of similar and specific cultural histories. Because of this connection, feminist legal theory might provide a useful basis for critical appraisal of the modern culture of human rights. In current debates about the human rights of women, feminist legal theory has a strong, reconstructive and normative voice: it engages not only in analysis and critique of the current law, but also in reformist arguments about how law and institutions might be otherwise. Our starting point is that a coherent school of thought needs to be established around a concrete object of study. In a case of legal feminism, it would be a figure of a woman. Feminist theorists of law not only study her legal position, but also oer her legal help, especially when she is in the position of the victim. Within this formulation, legal feminists seek a theoretical model that will provide them with suicient normative base, suggesting progressive movement in a global context. Better legal theory will make law reforms to meet the needs of women. Therefore, we shall have in mind the following triangular model: women–legal theory–law reforms. This model, created by feminist legal theorists, is a scheme that could bring into relation feminism, legal theory and practice, producing changes and reforms in law both on the national and international level. The Republic of Serbia is in the process of adopting new constitution, a new law on gender equality, and an anti-discriminatory law. High hopes are set for the time when they come into force. These drafts already reflect the importance of including gender perspectives, gender sensitive language, and principles of non-discrimination on the basis of race, ethnicity, gender and sexual ailiation. They also contain ideas for (re)construction of the rights in ways responsive to legal feminist critique in order to better a woman’s position. To do this, one also needs the theoretical knowledge of legal feminists and their modified application to its own legal, socio-economic, cultural and political context. These drafts contain the above-mentioned ideas about the intimate relationship between the general human rights observance in Serbia and the status women enjoy in the state – not only because respect for human rights implies the rule of law and a well-established and independent judiciary. It also opens the universal question of access to power and decision – making it the socio-economic and political sphere. In all these areas, women continue to face discrimination, despite the promulgation of domestic and international

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standards that espouse equality. Therefore, it is crucial for the new constitution and new laws (on gender equality, anti-discrimination, etc.) to be solid and clear guarantees of the equality of women and men and a reliable guide for the activities of legislators to keep in mind the basic idea of feminist legal theorists. II A Need for Legal Feminism and the Uses of Law In order to avoid terminological misunderstandings and conflicts, it is important to start with defining the notions of the basic terms and naming the disciplines that will be used in this paper. It is well known that theory and science dier from practice or activity. Law as a ”good reason for action” also consists – as its integral part – of practice and theory or scholarship (with the latter dividing into normative legal theory, commonly known as jurisprudence or legal theory) and empirical legal science (which subdivides into sociology of law, psychology of law, etc.). 3 Normative legal science is a discipline that interprets and systematizes legal standards (values, norms, principles, etc.) with a view of facilitating their application in legal practice. In Continental Europe, legal doctrine has been made mainly in academies, by law professors, while in the Anglo-American world it is mostly a creation of judges. Legal scholarship can be seen as a bridge between normative and empirical legal theory, a necessary connection between political ideals and political action. We will use and apply this classification also in the case of feminist legal theory as an academic discipline and a school of thought. Nevertheless, before doing so, we have to answer a preliminary question: what is feminism and is there a minimum content to it? In legal and political thinking, few topics have stirred a storm such as feminism. The movement spread all over the world challenging previously stable values and power relationships and render anxious changes. 4 Historically, as seen later, there have been many feminisms grounded and defined dierently. Our preliminary definition of feminism incorporates the following: a doctrine of equal rights of women and an ideology of social transformation aiming to 3

”Jurisprudence is often referred to as ’the’ science of law, ’the’ theory of law.” Scoular, J.: ”Feminist Jurisprudence”, in: Jackson, S. – Jones, J. (ed.): Contemporary Feminist Theories (New York University Press) 1998:68 4 Monori, G.: ”Feminist Jurisprudence in the 21st century”, u Andrássy. Gy. – Visegrády, A.: Jog és jogászok a 21. század küszöbén, (Pécs: JATE) 2004:56

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create a world for women beyond simple social equality, 5 including the necessary reforms in the legal system. However, a couple of indices seem to be the irreducible minimums (or aspects) which constitute the imperative of feminism. Minimally, the term implies the ”identification of women as systematically oppressed”. 6 (This is because there are so many clear examples of the continuation of power structures that overtly work against women) This feature leads us to the second aspect which stresses that ”so much of what feminist scholars and activists do now, is necessarily strategic and contingent.” 7 The third minimal content that has to be present is the feminists’ commitment to change and a refusal to accept the circumstances which continue to operate against women. These aspects, among others, that constitute a force and a field of activity within which feminists pursue their divergent interests and needs. It is also presumed that feminism needs to achieve a certain ontological status in order to exist as a category, without which, it cannot take a place within the academy nor will it be able to enter a dialectal relationship with other sciences or theories as an equivalent partner. Feminist theoreticians often attack abstract universal theories on the social world, including law. Yet, many have attempted to oer a feminist version of jurisprudence or a theory as a scientific and objective truth, or to construct an entire legal theory of women’s oppression, valorizing gender dierences. It is important to stress out that there is a dierence between ”feminist legal scholars” and ”legal feminists”. Feminist theoreticians have also tried to find a model that could bring into relation legal theory with practice, focusing on law reforms. Who are feminist legal scholars? The term suggests that they are ”more than feminists working in law” with the commitment to their feminism, and their ”work is constituted in a form that suggests a school of thought”. 8 Feminist scholarship is a looser formulation than legal feminism. It might connotate a much broader range of scholarship undertaken by feminists as feminists. 9 5

Humm, M.: Modern Feminism:Political, Literary, Cultural (New York: Columbia University Press) 1992:406 6 Andermahr, S. – Lovell, T. – Wolkowitz, C.: A Glossary of Feminist Theory, (London: Arnold) 2002:93 7 Bottomley, A.: ”Shock to Thought – An Encounter (of a Third Kind) with Legal Feminism”, Feminist Legal Studies , 00/2004:32 8 Naffine, N.: ”In Praise of Legal Feminism”, Legal Studies 22/1, 2002:80 9 Bottomley, A.: op. cit. p. 35

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On the other hand, according to some theoreticians, legal feminism focuses on women as victims within a legal system.10 It also focuses on how gender shapes law, reveals harm, and produces change in law. This tripartite configuration is in the centre of legal feminism. It suggests a series of moves from gender to harm to reform (and from general theory to specific example to proposal for change). Therefore, feminist work is presented by the formulation: placing women in the centre of an exploration of the gendered content of law and consequently seeking a strategy for change. In short, we can conclude that the general purpose of legal feminism is revealing harm to women, often caused by law. This requires that women as objects of study become visible. In this article our concern will be this particular notion of legal feminism – while we have to keep in mind all the relativity and the diiculties that occur in the process of naming our disciplines and disciplining the diicult, awkward and uneven features of feminist legal theory. But it was necessary to be done for recognition – inclusion of the discipline into the academy at a particular level, as a school of thought, as a body of knowledge that can be presented within terms that the academy recognizes as ”legal theory”.11 III The Role of Law in Constituting the Social Meaning of Gender Central to the feminist approach is the rather sharp distinction between sex and gender. In short, in Anglophone feminist theory sex was understood as a bodily or biological category, and gender as the socially constructed meaning of sex. 12 This distinction was adapted to dierentiate the socio-cultural meanings of ”masculinity/femininity” from the base of biological sex dierences of ”male/female”. According to some feminists, 13 women’s biological structure aects not only their psychic identity but also their place in gender hierarchy. It is the legal system’s reinforcement of these sexualized (dominant and subordinate) 10

ibid. p. 12 There might be certain linguistic, terminological, and technical difficulties as a consequence of translating these terms from English into other languages. It is likely that outside the English-speaking countries, the terminus technicus such as ”feminist scholarship” will not be popular, and it will presumably be replaced by the term feminist jurisprudence, feminist legal theory or legal feminism. See also Zorica Mršević – Ka feministickoj jurisprudenciji.htm 27. 02. 2006 12 The distinction was formulated in 1968 by psychologist Robert Stoller, and was taken up in early ”second-wave” feminism. Stoller, R.: Sex and Gender (London: The Hogart Press) 1968 13 Scoular, J.: Feminist Jurisprudence, p. 65 11

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positions that form the central focus of radical perspectives of law. Though this distinction very soon gained its critics, 14 it played an important role in shifting the political and intellectual focus to the role of law in constituting the social meanings of gender. The ”law and gender” approach presented the framework of sex/gender division as a general category for critical legal analysis, and opened up the possibility that the law’s contribution to the sexing or gendering of its subject might interact with other social forces, constituting a multiple female subject position. It assumed not only a powerful and dynamic role of law in the constitution of gender, but also a wide ranging and potentially radical law reform agenda. Furthermore, it opened up the possibility of incorporating sexual orientation in the critical analysis of the law’s constitution of gender, promising finally to explode the myth of sex/gender as exclusively ’a woman problem’. Contemporary feminist legal theory is constructed out of a combination of analytic and political-ethical claims. Analytically, the claim is that sex/gender is one important structure of social dierentiation and therefore it might have influence in shaping the law. Politically and ethically, feminist legal theory starts out from the assumption that the ways in which sex/gender has shaped the world, including through the law, have been unjust, consisting also in domination, oppression and discrimination. It is well known that legal sex dierentiation on the whole is a disadvantage to feminist legal theory as it is not constructed as a relatively unitary genre. Therefore, it is important to generalize among them, showing its true variety. The following part shows the strength of the feminist work in law and the attempts to pull all these heritages together. It will be recognized that feminists have struggled with a number of issues surrounding the study of women. IV Dierent Versions of Feminist (Legal) Theory Compulsory feminist theory is extremely diverse. A significant movement within feminism towards theorizing multiplied this variety,15 but the commitment 14

The concept of gender has been criticized on the grounds that the gendering of people, actions and things within culture is always implicated in differences other than those of sex. There is a powerful case that masculinity and femininity are constructed not alongside race, class, ethnicity and nationality, but in and through these and other distinctions, and that it is misleading to privilege sex in accounts of the social construction of masculinity and femininity. Andermah, S. – Lovell, T. – Wolkowitz, C.: A Glossary of Feminist Theory, p. 103 15 This process includes, among others, psychoanalytic or post-structuralist theory and jurisprudence.

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to eliminate the subordination of women unified the diverse strands of feminist theory. 16 However, this agreement soon dissolved into radically dierent accounts of that subordination and of the measures required to eliminate it. It is crucial to emphasize that distinctions between feminisms are not hard or fast. On the contrary: the lines cross and recross. 17 Feminism(s) created a rich source of social, legal or cultural theory and practice, which has had a major impact on law and culture. Because of these processes, we have to realize that these are models rather than detailed taxonomies: some writers fall between several of the classifications. The categories are useful both in understanding the development of feminist thought and in seeing how dierent (political) orientation have led feminist legal scholars to take up opposing positions concerning the deployment of legal rights as a framework of analysis of political and legislative strategy. In this part, we shall focus on some basic feminist criticism of the way mainstream (political) theories attend, or fail to attend, to the interest and concerns of women, discussing liberal, radical, cultural and dierence feminism.

1 Liberal Feminism – The Feminism of Equality Liberalism has become the dominant political expression of progressive thought in the modern age, but it encompasses a range of doctrines. The general idea could be that liberalism centres on core ideas of autonomy, of universal rights, of equal citizenship, and of democracy, but exactly what these ideas amount to has varied over the decades. Liberal feminism has most often been characterized as feminism of equality, 18 sharing an ”egalitarian plateau”, or a commitment to the idea that all members of the community should be treated as equals. 19 Liberal feminism has been particularly associated with the ideas of formal equality and of equality of opportunity, although contemporary liberal theories such as that of Ronald 16

Jaggar, A.: Feminist Politics and Human Nature (New York: Rowman and Allanheld) 1983:5 17 Andermarh, S. – Lovell, T. – Wolkowitz, C.: A Glossary of Feminist Theory (London: Arnold) 2002:222 18 ibid. p.48 19 Kymlicka, W.: Contemporary Political Philosophy, An Introduction (Oxford University Press) :376

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Dworkin also subscribe to stronger principles of equality, such as equality of resources or equality of concern and respect. 20 It is important to give a short analysis of some of the arguments made by feminist critics of liberalism. An initial stage of feminist criticism of law is often associated with the identification of sexual equality with equal treatment, rejecting any notion that the law should tolerate or recognize intrinsic dierences between women and men. 21 The strategy taken over by liberal feminists is to demand the law to fulfill the liberal claims for its objectivity and principled basis. They have worked for reform of the law, dismantling legal barriers to women being treated like men in the public sphere. The assumption is that the disadvantages suered by women can be compartmentalized and redressed by a simple requirement of equal treatment. This approach adopts the vocabulary, epistemology and political theory of the law as it operates at present.22 According to this approach, prohibition on sex discrimination promises equality to women who attempt to conform to a male model of behaviour and oers little to those who do not. The problem with such an approach is that it is inadequate to ”criticize and transform a world in which the distribution of goods is structured along gender lines.” 23 It assumes a ”world of autonomous individuals starting a race or making free choices [which] has no cutting edge against the fact that men and women are simply running dierent races.” 24 The language of ”equal rights” and ”equal opportunities” tacitly reinforces the basic organization of society.25 The subsequent general feminist criticism of liberal theory, and a recurring theme in feminist legal scholarship, is the analysis of the distinction between public and private spheres. This dichotomy assumes the public sphere as a sphere of rationality, order and political authority in which political and legal 20

Dworkin, R.: Sovereign Virtue: The Theory and Practice of Equality (Harvard University Press) 2000:1; 65 21 Lacey, N.: ”Feminist Legal Theory and the Rights of Women”, in Knop, K (ed.) Gender and Human Rights (Oxford University Press) 2004:20 22 Charlesworth, H.: ”What are ’Women’s International Human Rights?”, in: Cook J., R. (ed.): Human Rights of Women – National and International Perspectives (University of Pennsylvania Press) 1994:63-64 23 Lacey, N.: ”Legislation Against Sex Discrimination – Questions from a Feminist Perspective”, Journal of Law and Sociology, 14/1984:411, 415 24 ibid. p. 420 25 Dalton, C.: ”Where We Stand: Observation on the Situation of Feminist Legal Thought”, Berkeley Women’s Law Journal, 3/1987-88:1, 5

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activity take place, and the private sphere as a ”subjective” one in which regulation is not appropriate. Domestic and family life is typically regarded as the center of the private world26 . In western society, women are relegated to the privacy of home and family. The public sphere (of the workplace, law, economics and politics, and intellectual and cultural life) is regarded as the province of men. This phenomenon has been explained as a matter of nature, convenience, or individual choice. One feminist answer to these claims is that the public/private distinction in fact operates both to obscure and to legitimize men’s domination of women. The public/private dichotomy is gendered: it is a ”metaphor for the social patterning of gender, a description of sociological practice, and a category grounded in experience.”27 It is also a normative distinction, since greater significance and power is attached to the public, male world. The assignment of women to the domestic sphere entrenches their inequality with men, for women are regarded as dependent on men for subsistence. Moreover, the privacy of domestic life makes women’s concerns invisible and ensures preservation of the status quo. The feminist concern with the public/private dichotomy in (western) legal thought looks at the way that the law has been used to exclude women from the public sphere – from professions, from the vote, etc. Analyzing the distinction in this sense can be particularly useful in the area of human rights law. Why is the lack of regulation of particular areas of social life significant for women? Some feminist legal scholars argue that ”the absence of law devalues women and their functions: women are simply not important enough to merit legal regulation”. 28 However, it is important also to recognize that a deliberate policy of non-intervention by the state does not signify non-control or neutrality. 29 The regulation of areas such as employment, taxation, social security, and crime has a significant impact on the private sphere and reinforces a particular sort of family unit – a nuclear family in which there is a division of labour between 26

The distinction between public and private spheres is drawn by theorists in a variety of ways. For example, it can refer to the distinction between politics and economic and social life or between state and society. Carol Pateman discusses some of the complexities of the distinction in ”Feminist Critiques of the Public/Private Dichotomy”, in Public and Private in Social Life, ed. Benn I., S. – Gaus F., G. (New York: St. Martin’s Press) 1983:281, 285 27 Garmanikow, E.: ”Introduction” in the Public and the Private, ed. Garmanikow, E. et al. (New York: St. Martin’s Press) 1983:1, 5 28 Taub, N. – Schneider, M., E.: ”Perspectives on Women’s Subordination and the Role of Law” in Politics of Law, ed. Kairys, D. (NY: Pantheon Books) 1982:122 29 O’Donovan, K.: Sexual Division in Law (London: Weidenfeld and Nicolson) 1986:7

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men and women. 30 The lack of direct intervention by the state in the name of protection of privacy can thus disguise the inequality and domination exercised in the private sphere. 31 In western domestic legal systems, the distinction between public and private speaks for the sexual violence on which patriarchy is based: it creates a space into which the ordinary protection of law against violence will not be allowed to penetrate. The most all-encompassing harm against women tends to occur right within the inner sanctum of the private realm: within the family. Therefore, in western legal systems the non- -regulation of the private sphere legitimates self-regulation, which inevitably transforms into male dominance. Consequently, feminists have questioned both the commitment of liberalism to gender-neutrality in law and legal analysis. In a world where sex/gender appears to be a basic axis of social dierentiation (although mediated through other variables such as class, race, age, ethnicity, etc.), the question is whether legal subjects can generally be constructed as gender-neutral, and whether this can be formulated in gender-neutral language. In relation to rights, this also raises the question of whether a gender-neutral set of universal human rights might not need to be replaced or supplemented in certain areas by special rights for women or members of other groups. 32 2 Radical Feminism – The Exclusively Feminist Conception Radical feminism has been an influential and intellectually powerful strand in contemporary feminist legal theory. It is often claimed to be the most autonomous and distinctive conception of feminism in that it is exclusively a feminist theory. Originating in North America, it was born out of dissatisfaction with radical left-wing politics and gave the ”second wave” of the women’s movements a cutting edge in the late 1960s and early 1970s. 33 30

ibid. p.14-15 Charlesworth, H.: What are Women’s International Human Rights, p. 70 32 In this context, the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (New York, 18 Dec. 1979, in force as of 3 Sept. 1981, 1249 UNTS 13) is of particular interest, carefully positioned as it is between a universal conception of human rights and a woman-centred political focus. 33 ”Second -wave feminism” was commonly used to refer to women’s liberation movement from the late 1960’s chiefly in North America and Europe. ”First-wave feminism” culminated in a number of gains for women including the right to vote in the late 19th and early 20th century. Andermahr, S. – Lovell, T., – Wolkowitz, C.: A Glossary of Feminist Theory (London: 31

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At the same time, it is diicult to set out any unifying features of radical feminism. At the risk of stereotyping, we could say that radical feminists view sexual dierence as a factor bearing a certain priority in social life: they see sex dierence as more ’radical’ or basic than, for instance, class dierence, or racial, or ethnic dierence. To radical feminists, sex dierence is as structural as class dierence is to Marxists. 34 In her groundbreaking work, MacKinnon states: ”Sexuality is to feminism what work is to Marxism; that which is most one’s own and yet that which is most taken away.” 35 She also claims that the state is categorically male, and it legitimizes male dominance by enforcing its epistemology through law. Women are defined in law (as well as in society) by expropriation of their sexuality. 36 Radical perspectives on the law are antithetical to liberal notions in that inequality rather than equality between individuals is assumed. The fact that women are not equal is seen not only as a question of dierence but also as a matter of unequal distribution of power: ”Gender... is a matter of dominance, not dierence... The dierence is that men have power and women do not.”37 Radical theories focus on the central issue of power, being less concerned with the narrowness of legal doctrine and its inability to recognize dierences. The problem is ”...not that dierences are not valued; the problem is that they are defined by power.” 38 Law reinforces, and legitimizes this objectification: ”Law is not neutral (as it claims to be) vis-à- vis the gender divide; law is male.”39 Law keeps women ’out and down’ by preserving a hierarchical system based on gender. MacKinnon also describes an alternative legal analysis of inequality for which the central question is always ”whether the policy or practice in question integrally contributes to the maintenance of an underclass or a deprived position

Arnold) 2002:223; 238 see also Nedović, S.: Savremeni feminizam – položaj i uloga žene u porodici i društvu, (Beograd) 2005:41 34 MacKinnon, C.: Toward a Feminist Theory of the State (Cambridge, MA: Harvard University Press) 1989:124 35 MacKinnon, C.: ”Feminism, Marxism, Method and the State”, Journal of Women in Culture and Society 3/1982:515 36 MacKinnon, C.: Toward a Feminist Theory of the State, p. IX 37 ibid. 38 ibid. p. 8 39 Cornell, D.: Beyond Accommodation: Ethical Feminism, Deconstruction and the Law (London: Routlege) 1991:121

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because of gender status.” 40 Some of the critics of this theory 41 stress that MacKinnon’s approach is not always easily applied because many of the relationships of subordination sanctioned by the law are so deeply embedded that they appear quite natural. It involves looking ”for that which we have been trained not to see... [identifying] the invisible.” 42 If the issue of inequality is redescribed as one of domination and subordination, sex discrimination laws that simply promise equal treatment appear of limited utility. Catharine MacKinnon has worked rather for an expansion of the domain of the law to cover traditionally legally unrecognized harms of particular concern to women such as sexual harassment and pornography. She argues that the feminist project in law is to legitimize the real injuries that women suer in order to make them unacceptable. This is a way, though a slow one, to transform gender relations. Using MacKinnon’s analysis, other feminist lawyers have described discriminations at the workplace and other institutions where practices are more compatible with culturally defined male life partners than female ones.43 Some of the ideas of radical feminism, therefore, might be identified in the following: women are oppressed as women, and their oppressors are men, and male oppression has primacy over all other oppressions. In this way, radical feminism was responsible for uncovering the extent of violence against women, sexual harassment, 44 and the role of law in maintaining pornography as ”an institution of gender inequality... [which] like rape... fuses the eroticization of domination and submission with the social construction of male and female.”45 Like liberal feminism, radical feminist thought has been subject to a persuasive critique. One of the points of criticism has been the relatively limited substantive focus. Most radical feminist lawyers focus on a very particular set of

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MacKinnon, C.: Feminism Unmodified, p. 3 Charlesworth, H.: ”What are Women’s International Human Rights?” in: Cook, R. (ed.) Human Rights of Women (University of Pennsylvania) 1999:67 42 MacKinnon, C.: Sexual Harassment of Working Women (New Haven: Yale University Press) 1979 43 Littleton, A., C.: Equality and Feminist Legal Theory, University of Pittsburgh Law Review, 48/1987:1043 44 Monori, G.: Feminist Jurisprudence in the 21st Century in: Visegrády A. – Andrássy, Gy. (ed.) Jog és jogászok a 21. század küszöbén (Pécs: JATE) 2004:55 45 MacKinnon, C.: Feminism Unmodified, p. 148; On pornography see also: Dworkin: Pornography: Men Possessing Women (London: Women’s Press) 1981 41

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issues, i.e. those around sex, sexuality, and reproduction. 46 In addition, a subsequent object of critique has been the status of radical feminism as the socalled grand theory. More pluralistic feminists have objected to radical feminism’s monolithic theory of ’patriarchy’, which is insensitive to comparative social dierences about crucial points like ethnicity and class. 47 3 Cultural Feminism – Women’s Voice in Legal Context A development out of radical feminism, cultural feminism is a label that has been applied to a form which puts forward the existence of women’s culture, and which privileges culture in its analyses. 48 Like other early second-wave feminisms, (like liberal, radical, or Marxist) cultural feminism shared the overwhelming consensus that the dierences in nature between sexes were of small significance, but were magnified through ideological cultivation. 49 In other words, the dierences in question are held to be cultural and psychic rather than natural and inevitable. The essence of this form of feminist jurisprudence is the identification of a distinctive ”woman’s voice” in the legal context and a reevaluation of the contribution it can make to legal doctrine. The work of the child-psychologist Carol Gilligan has had a particular influence on the development of cultural feminism. 50 She notes the disparity between women’s experience and the representation of human development contained in psychological literature. The usual interpretation of this phenomenon was that it indicated problems in women’s psychological development. Gilligan turns this analysis upside down by arguing that the failure of women to fit existing models of human growth suggested a limitation in the notion of the human condition. The hypothesis drawn from Gilligan’s research by feminist legal scholars in the context of national legal systems is that just as traditional psychological theories have privileged the male perspective and marginalized women’s voices, so law also privileges a male view of the universe. Many feminists have pointed out that 46

Lacey, N.: Feminist Legal Theory and the Rights of Women, in: Knop, K. (ed.) Gender and Human Rights (Oxford University Press) 2004:24 47 ibid. 48 Segal, L.: Is the Future Female? Troubled Thoughts on Contemporary Feminism (London: Viraga) 1987 49 Andermahr, S. et al:A Glossary of Feminist Theory, p. 48 50 Gilligan, C.: In a Different Voice: Psychological Theory and Women’s Development (Cambridge, MA: Harvard University Press) 1982

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law is part of the structure of male domination. Its hierarchical organization, its adversarial format, and its aim of an abstract resolution of competing rights make the law an intensely patriarchal institution. The law represents a very limited aspect of human experience. The language and imagery of the law accentuate its maleness: it lays claim to rationality, objectivity and abstraction, characteristics traditionally associated with men, and is defined in contrast to emotion, subjectivity, and contextualized thinking, the area of women. 51 Concerning legal reasoning, Gilligan also attempted to explain why women’s moral voice was devalued in contemporary moral theory, including law.52 Under the standard ethical scheme, she found that rights were assumed to be the norm and that any deviation was ascribed lesser value. This coincided with the discovery that women were more inclined to have an ethical outlook that valued care as opposed to rights. Thus in system of moral reasoning women’s voice was systematically devalued. Gilligan concluded that our ethical systems of justice must develop to take in the excluded feminine ethics of care.53 Her study suggests that men and women see matters such as justice and equality dierently; therefore, a theory that seems appropriate for one group might not be for the other. According to the female view, the world (including the state) is not a ’hierarchy ladder’ where human interactions are seen as individuals competing for positions.54 Quite the contrary: according to the female view, the world/state is a web of relationships. Therefore, they are not concerned only with climbing ladders, but also with keeping the web intact and with balancing everyone on it. This ”view from the web” produces a morality with emphasis on responsibilities rather than rights. Assessing the dierences between feminine and masculine modes of reasoning in legal systems is not without problems. 55 However, the value of 51

Charlesworth, H.: ”What are ’Women’s International Human Rights’?” in: Cook, R. (ed) Human Rights of Women, National and International Perspectives (Philadelphia: University of Pennsylvania Press) 1994:66 52 Scoular, J.: ”Feminist Jurisprudence” in: Jackson, S. – Jones, J. (eds) Contemporary Feminist Theories, 1998: 63, 64 53 Gilligan, C.: ”Why Should a Woman Be More Like a Man?” in Psychology Today, June 1982:70-71 54 As Karts puts it, ”Law is predominantly a system of the ladder, by the ladder and for the ladder.” Karts, K.: ”Women’s Constitution”, Duke Law Journal 1984:461 55 Gilligan’s work left unanswered the question of the cause of the difference between gendered modes of reasoning. Catharine MacKinnon has questioned the authenticity of feminine voice. The feminine – argues MacKinnon – is defined by a patriarchal culture: ”For women

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cultural feminist approaches is that they highlight the almost comprehensive exclusion of women’s experiences from the development of law and test its claim of neutrality and objectivity. Nevertheless, what is prominent is that in an apparently more open and flexible system, women and their experiences are still quite broadly excluded.

4 Dierence Feminism – as the Dominant Approach within Feminist Legal Theory The criticism of the main genres of political feminism has, as its consequence, the emergence of a somewhat dierent set of models for feminist legal theory which can be grouped together under the label ”dierence feminism”. Dierence feminism moves beyond standard rule of law values such as formal equality. Like radical feminism, it criticizes liberal feminism as being limited by its essentially comparative standard (i.e. the strategy of ”assimilation of women to a standard set by and for me”).56 Therefore, it has shifted towards a focus not only on law’s reflection of ’prelegal’ sexual dierence, but also on law’s dynamic role in constructing and maintaining sexual dierence and sexed identities. Briefly, dierence feminism may be characterized in terms of the following themes: 1) The substance of law reflects a male point of view; 2) The legal subject is constituted as male, while women will find themselves excluded, and silenced; 57 3) The methods of law are gendered, to the disadvantage of women; 58 to affirm difference, when difference means dominance, as it does with gender, means to affirm the qualities and characteristic of powerlessness... When you are powerless, you don’t just speak differently. A lot, you don’t speak.” MacKinnon, C.: Feminism Unmodified, p. 45 56 Lacey, N.: ”Feminist Legal Theory and the Rights of Women” in: Knop, K. (ed.) Gender and Human Rights (Oxford University Press) 2004:26 57 ibid. 58 There is a link here with the influential work of the above-mentioned psychologist Carol Gilligan, which identified two distinctive methods of analysis in moral reasoning. The first one called ’an ethic of rights’ is very much law-like. By contrast, an ’ethic of care’ analyses moral problems seeking consensual solutions. These two ethics are gendered: women tend to adopt the ethic of care, while men more often reason in terms of rights. Gilligan, C.: In a Different Voice: Psychological Theory and Women’s Development (Cambridge, MA: Harvard University Press) 1982

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4) Like other feminists, dierence feminists insist that the key focus of legal jurisprudence should be, beside legal doctrine and law, how law is interpreted and enforced by legal actors; 5) Dierence feminists have analyzed the substance of legal rules and the conceptual elements out of which those rules are constructed in terms of binaries like the afore mentioned public/private distinction that supports the diiculty of getting domestic violence or sexual harassment taken seriously as legal issues. 59 Consequently, the following conclusion can be drawn. As we have previously pointed out, feminist legal theory is not monolithic, and there are dierent views among dierent versions of feminism. Feminist legal theorists, despite the dierences in schools of thought, are united in the following basic beliefs. 1) Most of them have in common that their analysis focuses on what is commonly referred to as ”revision” – a deconstruction of the existing principles and structures of thought and a reconstruction of how they might look if considered from the perspective of women’s experience.60 2) This point of agreement is the criticism of the public/private division. Related to the aforementioned dichotomies/distinction between reason and emotion, mind and body, objective–subjective, universal–particular, and public– –private – the former element is associated with the male and considered superior. Feminists have examined these categories and criticized the distinction as not being in accordance with women’s experience or attitude toward the world. 61 In 59

Binary division is a feature of western thought: male – female; subject – object; public – private; form –substance; mind – body; active – passive; reason – emotion. Feminists in general have asserted that these dichotomies are both hierarchized and sexualized: man is associated with the first half of each pair, and that half has been valued over and above the other. However, strategic responses to this analysis differ as between radical and liberal feminists. Radical feminists accept the sexualization of the divisions, but seek to reverse the valuation, arguing for the greater recognition of the emotive, the affective, and the feminine in social practice. Liberals, on the other hand, often accept the hierarchical ordering, but seek to reverse the sexualization of the dichotomies, arguing that women are every bit as capable of reason, as entitled to inhabit the public sphere, as capable of activity and intellectual power and objectivity, as are men. Olsen, F.: ”Feminism and Critical Legal Theory” in International Journal of the Sociology of Law, 8/1990:199 60 Irons, J., C.: A Feminist Look at R. Dworkin’s Theory of Equality, Murdoch University Electronic Journal of Law, Vol. 1 No. 1/1993:2, www.murdoch.edu.au/elaw/issues/v1n1/ iorns113.html 61 Lloyd, G.: ”The Man of Reason: Male and Female” in: Western Philosophy (Minneapolis: University of Minnesota Press) 1984

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this respect, feminist legal theory considers that such issues are not separable either from each other or from political or moral issues. Therefore, it is important to enable women with or without families to participate fully in the public sphere, at the same time improving their conditions and status in the private while attempting simultaneously to modify and/or break down the barriers between the public and private. 62 It is also agreed that the private sphere should be made more public, although to diering extents and in dierent ways, depending on the versions of feminism. 63 3) Feminist legal theorists are also united in their basic belief that society is patriarchal; shaped by and dominated by men. Feminist jurisprudence, then, provides an analysis and critique of women’s position in patriarchal society and examines the nature and extent of women’s subordination. It explores the role of law in maintaining and perpetuating patriarchy. Feminist legal theory explores the theoretical issues about the interaction between law and gender, and applies the feminist analysis and perspective to concrete dierent areas of law, (for example: family and criminal law, human rights etc.) with a vision toward eectuating law reforms. Having pointed out the main ideas that constituted feminist legal theory, it is also necessary to overview/identify the main axes of dierentiations between feminist legal theory. Therefore, the main points of distinction and dierentiation between feminist theories follow. The first has to do with the underlying theories of sexual dierence. 64 MacKinnon’s feminism has a specific view of sex dierences. The origins and maintenance of sex dierence lie in domination grounded in the abuse of the sexual power and the exercise of the sexual dierence. This in turn implies that the kinds of issues that feminist legal theory should focus on are rather distinctive: pornography, sexual abuse, violence, and abortion. 62

In addition to arguing for conditions enabling participation in the public sphere, a minimum feminist position is that a political theory or jurisprudence must not define women functionally or relegate them to the private sphere of the family. Okin, S. M.: Justice, Gender and the Family (Basic) 1989 63 Jaggar, A.: Feminist Politics and Human Nature, 1983:357. Also: On liberals’ sharp separation between the (female) domestic world and the (male) public world see Kymlicka, W.: Contemporary Political Philosophy, An Introduction (Oxford University Press), 2002:390 64 In the work of MacKinnon, one could find a structural, material theory of women’s oppression – analogous to the theory of class difference to be found in Marxism. MacKinnon, C.: Feminism Unmodified, p.48

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The other approach is more eclectic but is unified within the problem of identity that is structurally gendered. It has consequences for the status of women as legal and political subjects. 65 Some radical and cultural feminists see sexual dierence as rooted in women’s distinctive bodily experiences and relation that generate a particular female ethic. This feminist view argues for a revaluation of the feminine. 66 The subsequent moment of dierentiation between feminist theories has to do with the degree to which they exhibit substantive or methodological continuities with other legal and social theories. On one view, feminist legal theory is not so much an autonomous theoretical or methodological approach, but rather a genre that places special issues on the agenda of legal theory in order to illuminate sex/gender issues. In this view ”law is seen both a force within and a product of the social construction of reality”. 67 Therefore, feminist legal theory is conceptualized as an interpretative approach, which seeks to get beyond the surface level of legal doctrines – and which sees traditional jurisprudence as ideological and as an apology for the status quo. Radical and cultural feminisms, on the other hand, insist more upon the autonomy of feminist legal theory on the level of method.

V Why is Feminist Legal Theory Important to Serbia? Regardless of how important and necessary it is for this region to incorporate the theoretical knowledge ”from the West” (including legal feminism), the fact is that in the Serbian reality of the 1990’s, feminism often became an issue with negative social connotation. It was also a pretext for the initiation of the ”new patriarchy” and as its result ”anti-feminism became an act of patriotism.” 68 The changes of the 90’s brought a drastic halt to many benefits, de lege equalities women enjoyed in the communist era.69 In the war-tormented countries 65

Cornell, D.: The Imaginary Domain, 1995 Lacey, N.: Feminist Legal Theory and the Rights of Women, p. 18 67 ibid. p. 19 68 Blagojević, M.: ”Misogyny: Invisible causes, painful consequences”, in: Blagojević. M. (ed.) Mapping the Misogyny in Serbia: Discourses and Practice (Belgrade: AŽIN) 2000:674 69 The enjoyment of great social, benefits, those concerning employment, health care etc. was also the characteristic feature of most of the countries in ECE Europe. Regulska, J.: Gender Integration of Europe: ”New Boundaries of Exclusion”, in Jähnert, G. et al. (ed.): Gender in 66

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of the former Yugoslavia, negative trends toward women’s rights rocketed to dramatic dimensions. Women not only lost their gains from the communist times, but were also additionally exposed to tremendous ideological and armed pressure from conservative, nationalistic and religious forces. There was also a strong renewal of the influence of the church on political life, the weakening of the rule of law, explosion of massive unemployment, collapse of the welfare state, and growing violence against all weaker members of the society – women, children, senior citizens and minorities of all kinds. The main feature of the society was retraditionalisation, burdened by deeply rooted patriarchal values.70 Discrimination, marginalization, violence etc. might be seen as some kind of ”revenge” for the (forced) ideological equality that existed within the framework of communism. The new wave of anti-feminism was partly the result of failing to ensure true equality of men and women, both in public and in private spheres, through the institutionalization of equality. The diiculties of feminism spreading widely originate also from the fact that women mostly focus their energy on individual and not on collective strategies of resistance – and these two strategies are often mutually exclusive. The very idea of spreading/teaching/applying feminist theories, as we have seen in the previous parts, is the possibility to connect feminist theories and knowledge with practice and activism, to open new spirals of theoretical contemplations of feminist thought and understand its social context. At the turn of the 21st century, it became obvious that the establishment of institutionalized equality, regulated by various legal provisions demonstrated several weaknesses. Some examples of these weaknesses are: - the process of establishing gender equality is a slow one; - there are forms of ”subtle discriminations” (alongside with anti-discriminatory regulations); - the acceptance of women into certain fields or institutions regularly corresponds within the diminishing of the significance of such institutions; - institutions themselves are in the process of intense transformation, therefore institutional equality itself is something that by no means resolves Transition 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 from Nine European Countries, (University of Hull, The Netherlands) 2002: 293-322 70 ...”Re-traditionalisation... prompts nostalgic feelings towards the traditional patriarchal order, feelings, which have been growing stronger in the chaos of ’transition’.” Blagojević, M.: op. cit. p. 674

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the problem of (gender) equality in its entirety, but in fact represents its decreasing segment. In transitional countries, such as Serbia, where the institutions have become more or less disintegrated and often empty facades, this problem is more obvious. Feminist scholars stress that the legal/constitutional order on gender equality and anti-discrimination will remain just a principled proclamation unless there are certain accompanying mechanisms (such as committees, boards, councils, national action plans, statutes, ombudsmen etc.) within the system institutions such as Parliament, government, and local administrations for achieving gender equality. They are the only ones able to contribute to eecting the equal rights of women and men. 71

VI In Lieu of Conclusion Our intention was to focus on some possibilities of how to create attachments to feminist issues and legal feminism in order to ensure the visibility 71

After the change of 5th October 2000 (i.e. the fall of the Milosevich regime) the following bodies for gender equality were established: in 2002 in the Assembly of Vojvodina, followed by 2003 in the National Assembly of the Republic of Serbia, bodies of the executive government (in 2002 the Provincial Secretariat for Labour, Employment and Gender Equality, in 2003 the Council for Gender Equality of the Government of the Republic of Serbia, in 2004 the Provincial Institute for Gender Equality). Significant legislative changes occurred concerning Family Law (adopted in 2005), Law on Labour (2005), as well as in the Criminal Code of 2003 (with the introduction of the Criminal Act of Domestic Violence in Article 118a. The same criminal act remained in the newly adopted Criminal Code of 2005). In the field of monitoring the implementation of the policy of gender equality and equal opportunities for women and men, positive changes were made by the establishment of bodies for monitoring the achievement of women’s human rights, i.e. by the appointment of the Deputy Ombudsman for Gender Equality (Decision on the Provincial Ombudsman of 2002) and the adoption of the Law on the People’s Advocate (2005) by which, though not explicitly stated, there is a possibility for one of the deputies to deal with gender equality. Recognizing the necessity for the existence of a legal framework that will enable the consistent implementation of gender equality in all segments of public and private life, in 2004 the Assembly of the Autonomous Province of Vojvodina adopted the Declaration and Decision on Gender Equality. These documents represent the first legal acts adopted on the territory of the State Union of Serbia and Montenegro explicitly regulating the issue of gender equality in fields within the competence of the province.

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of relevant feminist topics, which may result in new institutions, mechanisms and law reforms for the betterment of a woman’s position. It can be concluded that there is no doubt about the prospect that the ideas set by legal feminists (by means of suggesting, oering reforms, criticizing the existing legal solutions etc.) can and will have an impact not only on academic legal thinking, but also on institutional and legal reforms. It can also be concluded that one of the key feminist epistemological strategies is conceptualization: neither knowledge nor abstract theory exists outside a spatial and chronological context. Co-opting Western theories, based on the experience of capitalist society, brought up both the possibility of improved understanding and that of deception. First, there might be a danger of identifying ourselves too easily and casually accepting explanations, conceptions and definitions. Secondly, there is also the danger of confusing a plausible appearance with interpreting the dierent social phenomena, using inadequate explanations. This is exactly why contextualization is essential for understanding dierences and various mechanisms that, even in modern ”global civilisation”, determine the precise and locally specific relation between men and women. Conversely, the import of these ”foreign goods”, and ”travelling theories”, might have multiple eects: they foster the development of new identities, bring new values and lead to an adaptation of dierent norms and behaviours. What eects these trans-boundary interactions and confrontation will produce in the long run remains to be seen. We can only hope that ”travelling theories” will keep aecting women’s organizing and result in an increased level of women’s activism focusing on the gender equality policy issue. Will state institutions (including legislators) and academic curriculums concerning women/gender studies become more gender- sensitive and involved? Alternatively, will their sensitivity be short-lived and will patriarchy and re-traditionalization again reconstruct the hierarchical relation between men and women? As a final point, the following dilemma remains open: is there a ”two way street” or a ”bridging discourse” between the ideas of American feminist legal thinking and the achievement in non-western, transitory societies focusing on gender dimension? By presenting the liberal, radical, cultural and dierence legal feminisms, we could also question the extent to which development in the transitory states succeeds to put a reverse impact on the content and evolution on western feminist legal theories.

II What is Law?

1 Prof. D.Sc. Duško Vrban Faculty of Law, Osijek, Croatia Economic Analysis of Law 2 Prof. Milorad Žižić, PhD Dean of Faculty of Law, Priština, Serbia Biorational and Social Determination of the Process of Material Origin of Law 3 Prof. Miroslav A. Živković, PhD Police Academy, Belgrad, Serbia Contribution of American Legal Theory in Defining the Concept of Law 4 Biljana Knežević, LL.M Novi Sad, Serbia Ronald Dworkin’s Natural Law 5 Sanja Đurđić, LL.M, Assistant Faculty of Accommodation Business, Novi Sad, Serbia Liberal Theory of Justice of John Rawls 6 Prof. Branko Tucakov Novi Sad Jerome Frank’s Legal Realism 7 Prof. Miloš Marjanović, PhD Faculty of Law, Novi Sad, Serbia Roscoe Pound’s Sociological Jurisprudence from the European Continental Perspective

1 Prof. D.Sc. Duško Vrban Faculty of Law, Osijek, Croatia

ECONOMIC ANALYSIS OF LAW Abstract: Economic analysis of law developed within post-war Chicago School of Economists poses the fundamental challenge no only to the traditional American jurisprudence, but to the customary European concept of legal system and its autonomy as well. Although it can be seen as a continuation of the utilitarian search for a better and more efficient society, from Bentham onwards, its roots could be discovered in philosophical pragmatism and in the concept of ”indeterminacy” common to legal realists from the mid-20th century. Its aims are twofold: firstly to propose a new kind of legal technique based on the concept of efficiency and maximization of wealth, and secondly, to offer a new and fresh explanatory theory of optimal legal, especially judicial behavior. It is argued that, essentially, this approach fails to take into consideration the non-economic factors such as altruism, common good and, particularly, the principle of supremacy of individual rights and of the rule of law. In the European context, its straight application would be discordant with the predominance of statute law and the position of judiciary which is subordinated to the recognized sources of law outside of it. Key words: economic analysis of law, indeterminacy, individual rights, Chicago School of Law Before we address the main theme of this paper – the economic analysis of law in American jurisprudence, it would be useful to point out some of the characteristics of the legal thought on both sides of the Atlantic, and the difficulties and perspective, arising in this context of the meeting of two legal cultures. It should be mentioned that in spite of the still widespread opinion about the incongruence of the two legal systems, Anglo-American Common law and European continental legal tradition (which is based on the Roman law and on the supremacy of legislature as the source), today there is a growing realization

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that the differences between these two systems are rather relative. In fact, the lawyers on the Continent are becoming more and more aware of the need for the judges to create law and of the advantages that this brings. This change is obvious in the problem area of constitutional administration of justice, in the protection of human rights and in some especially dynamic areas such as commercial law and international administration of justice. In connection with this, the former (rather naïve) belief in the omnipotence and ”rationality” of the lawgiver, who could issue general acts that would change the world and make the legal system just and transparent, as it was believed by the composers of the French Napoleon’s Code (Civil Code, 1804) is gradually fading away. Today it is realized that even the best legislative technique has its faults and that it always lags behind the real life, which can never be completely envisaged and bound by the chains of paragraphs of civil and other codes. Already the respectable Savigny in the early 19th century in Germany warned against the dangers that accompany the craze for complex codification, which is not preceded by proper preparations, thorough study of particular institutes and an insight into the case-law, i.e. into national culture. We could ironically observe that in the same way as once the European literature and science, with great curiosity but also with a sense of domination, were discovering new and unknown worlds, including America (Rousseau’s noble savage), the contemporary American lawyer, could point at some dogmas of European jurisprudence as outdated and unsuitable for the dynamic era of globalization. One of the lessons that could be acquired from the American theory and practice is that about the usefulness of judges’ discretion in the creation and implementation of law, as well as the testing of the efficiency of legal regulation. Efficiency or, respectively, usefulness of legal decisions are questionable not only in the criminal law but mostly in determining compensations for damages and in considering just solutions in commercial transactions. Precisely this seems to be the area in which the economic analysis of law provides its most interesting contribution. Closer contacts of law with the economic way of thinking started already in the 18th century, when Jeremy Bentham and later John S. Mill, represent the thesis about the greatest happiness of the largest number of people as the aim of law and politics. The issue here was primarily a kind of moral (practical) philosophy that especially addressed the purpose of punishing. The economic analysis of law, which wants to replace the traditional legal dogmatism with a new way of thinking, represents a slightly different point of view. Nevertheless,

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according to some observations this direction, too, represents only a sequence of the classic English utilitarianism. Utilitarianism is not a formal analysis of law – which is, e.g., found in Austin – but a prescriptive model used as the instruction for solving social problems and stimulating progress. Contemporary economism in the law also follows similar motives; starting from the enlargement of social wealth, it suggests ways for the maximization of profit or compensation for damage that would take care about costs, reducing them to the smallest possible measure. Here, ethical dimension of law is not visible, or it is implicitly included in the premises of liberalism (the greater the freedom of trade and entrepreneurship, the greater the social wealth). In America, law and economy meet more intensively especially in the 1960’s and 1970’s, when in the framework of the Department of Economics at the University in Chicago, the so-called ”Chicago School” was founded. In addition to developing the economic model of efficiency, the works of Gary Becker, Ronald Coase, Guido Calabresi, Henry Manne and Richard Posner also deal with law, indicating the ignored rationality of the tradition of judge-made law (Common Law), whereby they also wanted to emphasize the aversion (present already in the works of Holmes and legal realists) to legalism (Statute Law) and normative formalism (European jurisprudence). Among authors who write in this spirit, especially distinguished is the figure of Richard Posner, a judge and a teacher, who is most meritorious for the promotion of the ideas about the economic analysis of law. It should be noted that there are, in fact, two Chicago Schools: one, which developed already before the World War II, and the other, which developed after World War II and which pays more attention to methodological questions. Members of the first school (Douglas, Knight, Schultz, Viner), have tried to revitalize the economic thought by bringing back trust into the power of market powers, as opposed to state interventionism that had been introduced through the New Deal reforms. In this sense, these theories were consistent with the assumptions of Adam Smith from 1776 (the invisible hand), as well as with the ideas of English liberal economists from the Viennese School, Hayek and von Mises, who opposed the Keynesian logic of inciting demands. In that perspective, especially distinguished is the contribution of Milton Friedman, who after the war became the coryphaeus of neo-liberalism and the most translated American economic writer. The other school, the postwar school of Chicago economists, has paid much attention to methodological issues of maximizing the usefulness and

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reducing costs as the efficiency of operations in the field of production, exchange of goods and services, and especially in the compensation of losses (Kaldor-Hicks efficiency). The starting point of these models is the so called ”Paret’s optimum”, according to which there is a balance in the distribution of goods if any sort of change would put one of the protagonists into inferior position. Chicago theoreticians have also taken into consideration the legally induced changes in the economic position of the parties, for example in determining compensations for damages, and they have tried to set up a rational rule for such cases (Coase’s theorem). In this connection, there was the issue of justification of a priori legal regulations for such cases. As it is known, legal constructions about establishing responsibility most often range from the principle of blame (in most cases it is negligence), presumed culpability (the burden of proof is on the accused), to objective liability, when the guilt does not need to be proven (strict liability). Thus the conclusion was reached that, in principle, market mechanisms of compensation are more efficient than the legal regulations, that passing judgments in the tradition of Common Law is more efficient than legal regulations of responsibility, and that, according to this, courts should bear in mind that the risk should be, at least partially, put to the party that can reduce or avoid damage, paying more attention to costs. An important novelty in this reasoning is that it takes account of operating costs (transaction costs). These are the costs that result from the aspiration to buy or sell something; in addition to seeking information, the parties need to reach an agreement (ex ante costs) and then they must make efforts to fulfill contractual obligations (ex post costs). It should be mentioned that this idea does not come from the Chicago School, but is the result of an older contribution of neo-institutionalists (Commons, Coase, Barnard), who have indicated the limited rationality of economic agencies, which are often exposed to unexpected costs, already because of the conflict of interest among them. In addition to compensation for damages, some economists were also preoccupied with the economic aspect of non-market behaviors. So Gary Becker tried to calculate the social cost of crime and point at economic motives in marriages and divorces, bringing up children, dividing household chores, and he even analyzed alcoholism and drug addiction. This expansion of the economic approach on spheres outside of traditional economy, was described by some authors as ”economic imperialism”, which indirectly testifies about the spirit of American society, reflected already in the philosophy of pragmatism. However, some other authors have taken the opposite direction, considering economy

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through institutions such as ownership and right (Alchian, Demsetz). This has initiated the affirmation of neo-institutionalism in economy, which confronts the formalism and individualism of the neoclassicists. In the 1970’s, the Chicago School of Law and Economy won a respectable position, not only among economists but also in the circles of lawyers, both those with academic and practical orientation. Many have put great hopes into this new approach, in the conviction that it opens new perspectives, both in the theory of law and in the legal practical reasoning, which finally had to be put on sound and rational foundations. Some specialized periodicals have been founded in this domain, such as the Journal of Law and Economics and Journal of Research in Law and Economics, and the protagonists of this orientation have gradually been given more noticed positions in other renowned publications as well. The rapidly grown popularity of the economic approach to law, even if it has contributed to the abandoning of the older normativism of Langdell’s type, still has not completely expelled other courses, such as the already mentioned neo-institutional school and that which is closer to the domain of sociological approach – critical legal studies. In an attempt to summarize this exposition, we could ask ourselves which are the key starting points and ideas of the Chicago School of Law and Economy, that have contributed to its exceptional popularity across the Atlantic? This topic would require a more detailed analysis, which should take into consideration the specific features of American law, as well as the differences between the European and the American way of thinking. As a result of a summary view of the important characteristics of this approach, it can be primarily concluded that this school, as well as some other courses, that deal with law and economy, is based on a certain dualism; on the one hand, it aspires to explain the sense and operations of legal institutions, and on the other hand, it establishes itself as a prescriptive method that develops into a specific legal technique. We can thus speak about two dimensions of the economic analyses of law: about the positive dimension, i.e. that which describes and envisages, and about the normative dimension, which prescribes. The emphasis of this theory is certainly on the concept of efficiency, which is understood as maximizing the wealth as measured in money. With this as well as with other instruments, such as the marginal usefulness, the Chicago authors continue the neo-classical analysis, including in it the analysis of operating and contracting costs. This way of thinking, which holds that the aim of law is implicitly consisted in its contribution to the enlargement of wealth, is

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

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administration of justice and legal decision-making in general are limited by normative boundaries, which guarantees legal security and execution of democratically chosen goals of legislature. Introduction of other criteria, such as for example efficiency, these normative premises can be put in question. 3/ Just as a refined economic analysis shows, economic factors are not independent from the social and especially not from the legal context. Namely, the costs and prices are directly dependent on the limitations of ownership and on other institutional limitations. 4/ For most people, abstract augmentation of wealth or, respectively, quantitative relations of distribution, have a lesser importance than the access to the goods itself. In other words, for the majority of social protagonists the question how to distribute social goods, both public and private, is much more important than the aspiration towards the mere enlargement of benefits as measured with money. It would therefore be more adequate to speak about the interdependence or the interaction of the socially-cultural context and economic calculations, just as this is don by the institutional and neo-institutional school. Nevertheless, some merits of the Chicago School can not be denied; it has contributed to a better insight into the rationality of both legislature and court decision-making in those fields of law that are the closest to economy. These are disputes about damages (tort law), protection of property rights, and the Law of Obligations and Commercial Law.

LITERATURE 1. J. D. Hanson / Melissa R. Hart: Law and Economics, in: Dennis Patterson (ed.): A companion to Philosophy of Law and Legal Theory, Malden (MA) etc., 2003, 311-331 2. J. W. Harris: Utilitarianism and the Economic Analysis of Law, in: J. Banfield (ed.): Readings in Law and Society, North York (Ont.), 1991, 241246 (source: J. W. Harris: Legal Philosophies, London, 1980, 36-47) 3. J. M. Kelly: A Short History of Western Legal Theory, Oxford, 2003 4. Kregar, J. / Šimonović I.: Teorijski temelji ekonomske analize prava (Theoretical Foundations of the Economic Analysis of Law), Zbornik Pravnog fakulteta u Zagrebu (Collected Papers of the Faculty of Law in Zagreb), 1996, 6:557-617 5. T. Keresteš: Ekonomsko vrednotenje v pravu (Economic Evaluation in Law), Pravnik (Ljubljana), 59 (2004)7-9:279-392

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6. N. Mercuro / Steven G. Medema: Economics and the Law: From Posner to Post-Modernism, Princeton (N. J.), 1997 7. R. A. Posner: Economic Analysis of Law, Boston /Toronto/London, 1992 8. W. E. Scheuerman: Die stille Revolution im amerikanischen Recht (Silent Revolution in American Law, in: H. Brunkhorst /P. Niesen (ed.): Das Recht der Republik (The Law of the Republic), Suhrkamp, 1999, 209-231.

2 Prof. Milorad Žižić, PhD Dean of Faculty of Law, Priština 1

BIORATIONAL AND SOCIAL DETERMINATION OF THE PROCESS OF MATERIAL ORIGIN OF LAW Abstract: The author is trying, in a certain degree, to recognize the problem of material authenticity of law through an integral projection, by facing its biorational and social guidelines. He points out the possibility of triple form of material authenticity and essence of law. He also stresses that a problem of the essence of law, in a certain degree, can be approached in a threefold way, i.e. he emphasizes a triplelayer essence of law, pointing to its normative, social and value aspect. Key words: sources of law, definition of law, normative, social and value aspects of law, the essence of law The process of material origin of law 2 , which takes or may take three aspects or directions, in our view, originates or may originate from a particular 1

Prof. Dr Milorad Žižić is a full-time professor at Law Faculty of Priština University currently situated in Kosovska Mitrovica. Prof. Dr Milorad Žižić is the dean of this faculty. 2 Our perception of material origin of law in the first aspect i.e. law as social production (reality), desirous production is partly opposite to dogmatic and normative theory of law ’cleansed’ from social and other factors. Partly it is similar to sociology and legal approaches (of Digi, Spasojevic, and others). Opposition to dogmatic and normative approaches exists, in our opinion, due to extreme exclusion of such approaches when it comes to sociological, psychological and other factors, which we think well determine origin and essence of law. Similarity to such approaches lies in the fact that we, after all, point to the normative aspect of law, but unlike them, as an aspect of threefold essence of law, which is incomplete without social and valuable dimension. Similarity of our approach to sociology approaches to law, as well as legal sociology, legal economy, is partly present.The fact that the basis of origin of this aspect of law originates the process of its creation is determined out of social reality (production). The difference from previous approaches lies the fact that, as with normative segment, we don’t stay only on this sociological segment, but we give it, within

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basis, which was established primarily by biorational and social mixture of different matters stemmed from the state of need of the given time and space, conditioned by either specific or general development of the society and justified by determined ideas (the reflection of objective development of the society). The first aspect of the process of material origin of law is evolutionary adaptable to social reality and its need for legal regulation of social relations. It creates a norm, which is being (more or less) realized through the technical utterance and form which we call a norm, i.e. positive law. Desirous notions on legal regulation which are expressed through legal and technical form of the positiv norm, are desirous aspirations of the creator of the positive norm, positive law, i.e the reality which expects such regulation. This positive law percieved through this aspect of the process of material origin of law is seen and expressed with a simple form: LAW AS SOCIAL PRODUCTION (REALITY), DESIROUS PRODUCTION. Social production (reality), viewed in its overall, widest sense, in interaction of social relations and structure determines the need for adequte legal regulation of numerous and various social realtions. Instinct of self-preservation, uniting, identity, existence, orientation, power, existential security, economic profit, and so on, is expressed through the economic base and superstructure, where satisfaction of wishes and interests is being fulfilled. Satisfaction of wishes and interests requires the need for adequate protection of regulation, especially legal regulation. Clashes of interests and polarization in social production (reality) results in various conflicts, which determine the need for existence of organized force and adequate machinery for implementation of that force aimed at resolving conflicts and protection of interests. Depending on the power forces and sequence of social assumptions and events which effect the building and organizing of the machinery for implementation of organized

determined interaction, normative and valuable aspect of essence of law, and we discuss it in this work. However, what is, after all, different from other approaches to law in our approach is the given model, coceptual construction, which, out of biorational and social conflict and interaction, synthesizes and absorbs or leaves open possibilies of absorbing of numerous causes or factors with different role and significance, and which are seen as ’sources’ of law by many authors. Such is the case with our approach to material origin of law, as well as the second and the third aspect of origin of law. Here we emphasize that under the term ’origin of law’ we exclusively mean material origin of law. Formal origin of law (general legal act) is not the subject of this work.

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

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

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

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

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

3 Prof. Miroslav A. Živković, PhD Police Academy, Belgrade, Serbia

CONTRIBUTION OF AMERICAN LEGAL THEORY IN DEFINING THE CONCEPT OF LAW Abstract: In the article the author underlined that American legal theory insists on the standpoint that general legal acts are being applied most often only through individual acts and court decision. Therefore, the most relevant thing for the citizens is the content of individual acts, that are often being passed on the basis of discretion authority. Therefore, bodies passing individual acts, especially the court, are to a great extent independent when determining what law is in that particular case. Independence of applying bodies and especially that of the court results from the fact that particular legal decisions depend not only on the content of law, in other words regulations, but also from logical, philosophical, political and moral suppositions, that is, understanding those who make those decisions. Key words: court decision applying bodies, American legal realism, discretion authority

1. During the nineteenth century, and especially in its second half, legal positivism dominated in Europe which by generalizing the European legal practice defined law as a system of current laws and other regulations. Reductionism and formalism of such approach was criticised both in Europe and in the United States. Late in the 19th century, at about the same time two schools of free law appeared first in Germany, and then in other places through Europe and a realist school in the United States of America. These schools widen the concept of law considering it to be unjustly reduced on law or in other words general legal acts while the importance of individual legal acts and especially court decisions are being ignored. American law schools insist on the standpoint that general legal acts are being applied most often only through individual acts and

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court decision. Therefore, the most relevant thing for the citizens is the content of individual acts, that are often being passed on the basis of discretion authority. Even when this is not the case, quite a number of legal regulations are insufficiently determined, unclear, mutually contradictory or there is a case of legal emptiness. Therefore, bodies passing individual acts, especially the court, are to a great extent independent when determining what law is in that particular case. Independence of applying bodies and especially that of the court results from the fact that particular legal decisions depend not only on the content of law, in other words regulations, but also from logical, philosophical, political and moral suppositions, that is, understanding those who make those decisions. 2. American Legal Realism – This school first appeared towards the end of the 19th century as a reaction to the school of legal positivism, which overstresses the importance of legal acts. 1 According to the school of law positivism, the law is reduced to general legal acts (general norms), and its application to deducing conclusions out of general legal norms by means of formal logic. This school overestimates the importance of creating law by the legislator and underestimates the independence of courts of law and other organs that apply the law. In viewpoint of the legal positivism, the organs of law application are construed in the same way as according to the school of conceptual jurisprudence. Legal realism has come into being as a reaction to overstressing the importance of state regulations and neglecting the creative character of judges’ rulings as well as of the freedom of courts in interpreting legal regulations. Bearing in mind the freedom and creativity of the courts in interpreting laws and other legal regulations, Benjamin Hoadly said at the beginning of the 18th century: The one who has the absolute power of interpreting any written or spoken law is, indeed, practically the legislator, and not the person who first wrote or pronounced it”. 2 The legal realism particularly criticizes the positivistic dogma on wholeness and consistency of the legal system. Regarding the fact that the legal system is full of incompleteness (blanks), inconsistency and vagueness (ambiguities), the court of law enjoys a great independency in pronouncing court sentences. Judge and professor Oliver Wendell Holmes was among the first to express doubt about the correctness of, at that time, dominant analytical and 1

See point ”American Realism” in: D. LLoyd’s Introduction to Jurisprudence, pp. 655-670. B. Hoadly, Bishop of Bangor, Sermon preached before King, 1717, p. 12, according to K. Čavoški, Uvod u pravo I, Beograd, 1994., (Introduction to Law I), p. 29.

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historical schools layouts. He thought that more realism and pragmatism ought to be entered into the explanation of law, legal process and nature of legal thinking contrary to the prevailing inclination to absolutize and mix logic with metaphysics. According to some thinking, Holms was not only a champion of pragmatism in law theory, but was among the most prominent people who contributed to the development of ”American pragmatist spirit”. 3 By his explanation of social purpose and role of law, Holms is a predecessor to the functionalist theory. He thinks that law is a means of achieving a social goal the governing force of community has decided on. In a society, every group, as well as every individual, has different interests. Therefore, governing interests are established through struggle for existence and a better social position. Holms inclines to class view to law, he says that the thesis on the solidarity of different interests in a society is a false one, and argues laws are means of transferring unpleasant burdens from one class to another. 4 Regarding the definition of the concept of law, Holms advocates a conceptual division of law and morale. According to him, law is not even a moral minimum, let alone it being entirely based on morale. 5 The true nature of law can best be disclosed if it is perceived from the viewpoint of a bad, immoral person. Such person cares only about predictable, negative consequences, and to predict is not possible if it is based solely on the knowledge of law, but only by combining this knowledge with the knowledge of court practice. A bad man, says Holmes, does not care about the deductions drawn out of axioms or laws, but tries to learn or predict how a court of law in Massachusetts or New England will proceed in a concrete situation. Holmes says that he shares the ”bad” man’s opinion about the utmost importance of this question. ”The prophecies of what the courts will do in a fact, and nothing more pretentious are, what I mean by the law”. 6 The importance of a court decision comes from ambiguity and inconsistency of law, and the existence of legal gaps and specific features of the case to which a norm or norms apply. As Judge Holmes, the distinguished representative of the realist school, says, ”general provisions do not solve particular cases”, therefore judges have ”the sovereign prerogative of choice”. Holmes disproves the 3

A. Molnar, Društvo i pravo, Novi Sad, 1994., (Society and Law, Vol. I), str. 223. M. White, Društvena misao u Americi, Zagreb, 1979, p. 175. 5 A. Molnar, op. cit., p. 228. 6 O. W. Holmes, Collected legal Papers, New York, 1921, p. 172. 4

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common viewpoint of different positivist schools that legal logic is the essence of law application process. In his opinion, ”the life of law is not logic, but experience” 7 and then he adds that, under a logical form there lies a judgment on the relative value and importance of juxtaposed legal bases, often an inarticulate and unaware judgment which really is a real root and nerve of the whole procedure. You can give a legal form to any conclusion. You can always presume a stipulation of a contract. But, why do you presume it? Because of the belief that a community or a class acts in this way, or because of a political opinion, or, in short, because of your attitude on a matter which is not fit for a quantitative measuring and, therefore, not fit for making precise logical conclusions. 8 According to Holmes, contrary to abstract and rigid law, a verdict i.e. judge is capable of seeing the specific features of a particular case, and to resolve and put in harmony the legal inconsistencies and the inconsistencies of individual and social values and interests. Therefore, it is the verdict that represents the relevant and animate law. In his sociological explanation of law, similarly to Holmes and Cardozo, Jerome Frank starts from the conflict nature of social relations, and conflicts of economic, racial, and religious interests and attitudes. However, the influence of class affiliation is more effective when passing legal norms is in question than when passing judgments. Court cases pertain primarily to everyday problems and in this area, class affiliation often is of no importance. The effect of class affiliation expresses in the cases when the parties belong to different classes and when, as a rule, the judge rules to the benefit of his peers, but such cases are relatively rare. 9 Consequently, law shows its class character in one of its parts. Franck distinguishes two kinds of legislation: legislative (parliamentary) and court. However, neither the legislative nor the court decisions constitute law, ”law does not consist of norms, but of decisions”. In the process of court creation of law, the norms are a condition, a starting point and guidelines, the norms have a character of means and instruments a judge uses to make his decisions. Frank considers the personal convictions of the judge to be of more importance than the contents of legal norms. If a judge’s perception differs from the one, they are obliged to take into consideration by a norm, he will proceed according to their own opinion by observing the facts in such a way 7

O. W. Holmes, The Common Law, Boston 1881, p. 1. O. W. Holmes, Collected Legal Papers, New York 1921, pp. 181, 182. 9 A. Molnar, op. cit., pp. 228. 8

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that they enable his decision to get a formal logic basis in a legal norm. The majority of judges are not aware of the true nature of this psychological process. Due to that fact, the court decisions cannot be predicted in advance. The most important determinant of a court decision is the psychological traits of the judge. Frank proves this by presenting numerous statistical data, concluding that the administering of justice in a particular case depends primarily on the judge who gets to rule and not on the contents of legal norms. Hiding behind legal norms is an ideological procedure, and in that sense, law is a form of ideology. Moreover, there exist elements of residues of magic and magical belief in the summon of holly words, and the summon of legal norms comes from the belief that the words, all in themselves, produce the effect accredited to them. In reality, law as a technical and ideological mechanism secures the stability of order on the one hand, and makes possible the arbitrariness of state decisions, which is sometimes needed whereas, in some other cases, it is not needed but is tolerable, on the other. Although some representatives of American realism use the judges’ behavior concept in their definitions of law, their understanding should not be construed as anti-normative because the behavior of a judge is reduced to the decision, i.e. to the norm he passes. Consequently, the difference between the sociological and positivist school here is primarily terminological because realism also considers norms i.e. the court decisions pronounced by the courts to be a presumption of law. The basic difference between various schools of positivism and realism lies in the fact that the realistic orientation stresses the importance of the application of law and single act of law. Law becomes concrete and relevant to the opposing parties only in the process of application. Therefore, in giving its definition of law, realism highlights the act of law application, primarily the court decision, instead of the law and other regulations. The shifting of the point of law gravity from the general to the single act of law (primarily the court decision) is conditioned by the usage of sociological method by the realistic school. Contrary to the positivism which underlines that a single act of law should be passed in accordance with a higher legal act in the spirit of logic of legal system hierarchy, the actual matter of fact notwithstanding, the realistic school gives the definition of law primarily having in mind the actual relations in the application of law i.e. the real relationship between the verdict and the law. 3. Economic analysis of law – In the last few decades, two more theoretical orientations (schools) of thought have singled out in the world. They are

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theoretical and ideological counterparts: economic analysis of law (Law and Economics), and critical legal studies. R. Coase and R. Posner are the most prominent theorists of economic analysis of law the origin of which is in the USA, (Chicago for the most part) and the UK, and the grounds in the tradition of classical liberalism. 10 According to liberalist point of view, economic approach to social and political philosophy is the most effective way of solving social problems. In view of the school of economic analysis, law must be designed based on economic principles due to the fact that it regulates social relations and contributes to finding solutions to social problems. Posner thinks that along with traditional, private law, which is already imbued with implicit, economic logic, the entire legal system should be permeated with the logic of efficacy and perfect competitiveness. 11 However, those who criticize the views of this school point out the fact that, in the matter of many issues, the logic of economics diverges with respect to the logic of law the essence of which is reciprocity and fairness. As a mechanism of regulation, law is not exclusively in the service of economics, but also politics, morale and society the goals of which are not strictly economic. According to the school of economic analysis, true economic effectiveness should be the supreme arbiter in formulating law as well as in its application. To say that here the idea of justice being the essence of law is replaced by the idea of economic effectiveness is not an overstatement here. In addition, since business circles, that have the economic power at their disposal, are those primarily interested in the latter, the whole theory is, de facto, a rationalization of their interests. Due to its reduction and banality, the true school of economic analysis is similar to the theory of power as the basis and essence of law. Only, instead of physical power, the economic effectiveness, which is also a form of oppression, is posted here. The school pays particular attention to the analysis of the state of welfare and its law. According to the views of this school, shared by President Ronald Reagan, any redistribution of profit in a society other than the ones realized thru the mechanism of open market is unwelcome. Moreover, it is a capital economic evil, and, on one occasion, Posner even calls it a steal. He cynically 10

See point ”The Economic Analyses of Law”, in: D. LLoyd’s Introduction to Jurisprudence, pp. 374-379. 11 R. Posner, Economics Analysis of Law, 3rd ed., Boston-Toronto, 1972, pp. 29-40.

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remarks that there still is some excuse for redistribution and tax. Without them, the misery would rise which gives way to criminal and this, in turn, endangers economic effectiveness. Misery in itself obviously is not the problem here, it is harmful only to the degree in which it endangers the rich by way of crime. This school advocates rationalization of legal regulations which would reduce the costs (especially in court proceedings) and create regulations corresponding to the agreement that would anyhow be achieved by the parties were there no state-law procedures. In simple terms, there exists a request to create a legal situation that would exist if there were no law and its protection. Law should be created according to the principle of lawlessness i.e. of the right of the more powerful. In this way, the request for economic effectiveness is, in the end, reduced to the policy of power (economic power). In a somewhat more moderate fashion, Cose states that the opposing parties, being interlinked by external effect, will always find an effective solution, if they can negotiate free of charge, no matter which one of them is legally liable for the inflicted damage (Coase’s Theoreme). This presumption will seldom be feasible. It is based on the vision of a calculated and cooperative homo economicus. However, in reality there are often different psychological impediments and irrational motives which make any agreement impossible. The institution of legal process has been built on that very experience which is a thousand years old. It is costly, the fact which particularly annoys Coase, but as a legal institution, it is necessary. The school of economic analysis obviously is a rationalization of extremely conservative ideological attitudes. In this sense, it does not have any grounds in the classic liberalism onto which it only verbally reclines. Liberalism does not assume that human rights and liberties may reduce to the right of ownership and economic competition (efficiency). Law must be not just an expression of, but also a limitation of these, as well as of other, indisputably inevitable social values. In law, effectiveness is only one of several critical values such as freedom, peace, security, justice, human dignity and truth. Law expresses limits and separates these values. It cannot be reduced to one or more of these values. More moderate representatives of the school of economic analysis realize that all law criteria and all values cannot be reduced to economic effectiveness and, thus, talk about synchronizing law and economic criteria in formulating and applying law. 4. The school of critical legal studies – This left oriented school is the counterpart of the conservative school of economic analysis of law. It was built

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on the foundations of Yale, Harvard and Stanford law schools, on the traditions of critical Marxism, especially that of the Frankfurt school, and the American legal realism. In the traditional approach to law, this school particularly opposes formalism, positivism, and liberal legalism. The members of this school are left liberals, reformers, and radicals. The program and method foundation of the critical school is the diagnosis of the society according to which ”the Earth and the world are thronged with evil and injustice. Profit and power are unevenly distributed to the degree of criminal act. Hypocrisy and hysteria are true hallmarks of foreign and domestic politics. Law really, at least partly, reflects ”the wish of those who govern to continue their governance”. 12 Based on this assessment of societal situation, only a critical grading of the existing law and theory, and the ideology which is in its core, is possible. According to the critical school, the liberalism which is in the nucleus of the existing law serves as a cover up for the status quo by its ostensible care about freedom and individual rights. Legalism, formalism and positivism are in the service of liberalist ideology. According to their views, legal science deals only with the law given in formal sources of law. The meaning and substance of law are objectively given, therefore they may be objectively comprehended applying the method of interpretation. According to the critical school which accepts the essential heritage of the American legal realism, the presented assumptions are mainly false. Firstly, law is not an independent social factor, it is neither apolitical, nor unbiased. Law is a political phenomenon, it is no more than pure politics. It can be seen in its creation and its application. Legal norms have no objectively given meaning. In practice, law is always a matter of subjective political interpretation. The formal-deductive character of legal conclusion is just a form and means of an arbitrary political decision. The critical school considers its task to disclose that, in fact, law, similarly to religion, gives legitimacy to the given order of power. Not just by its interpretation, but also by its formulation, law is an expression of the rich and the powerful, those who benefit from formal unity and free market. Law is not a self purpose phenomenon, it is primarily a societal instrument. It cannot be separated from the values, morale and politics of the governing, or any other interpreter. It is a great question whether the dogmatic method of interpretation is scientific at all, whether a scientific i.e. unbiased interpretation

12

L. Schwartz, With Gun and Camera through Darkness CLS – Land, 36 Stanford L. Rev., 1984, p. 420.

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is possible, or jurisprudence will forever be primarily a skill and philosophy as the ancient Romans understood it. 5. Conclusion – The majority of the American legal schools of XX century support several critical theoretical understandings: 1) The theory of law must be built in close unity with the sociological perception of law; 2) When giving a definition of law, it should be started from its function, and the function of law should be separated from the functions of other normative systems; 3) Both in its creation and in its application, law is closely connected to politics and morale i.e. needs, interests and ideas of people.; 4) Connection with morale particularly steps forward in a court process in which judges interpret and resolve the inconsistencies and ambiguities of the legal system and interpret concrete legal concepts, starting from the actual social needs and prevailing moral concepts; 5) When defining the concept of law, the structural complexity of law phenomenon (gradualism) and, linked with it, the progression of its realization, must be taken in consideration; 6) When defining law, a special attention should be paid to the significance of man and his legal awareness in the process of formulation of a final, concrete, legal decision. By opening new issues and finding original solutions to some traditional dilemmas, the American theoretical thought of the 20th century rises to the very apex of the world legal thought, abreast with the European, which, up to that time, had had an unquestionable supremacy.

4 Biljana Knežević, LL.M Novi Sad, Serbia

RONALD DWORKIN’S NATURAL LAW Abstract: This paper analyzes jusnaturalism of Ronald Miles Dworkin, one of the most important contemporary philosophers of law. The author tries to present the emergence and development of Dworkin’s natural law teachings, which greatly differs from classical natural law theory. The differences stem from his eclectic understanding of legal phenomenon. By combining influences of interpretative legal theory, natural law theory, as well as of postmodern philosophy, Dworkin creates new, interpretative natural law. According to him, law is a category which rests on the pluralism of legal principles and individual rights. The new value, by which the legal text is governed, is the law as integrity. Law as integrity is metaphysical category which is achieved through the interpretation of a judge. In this way the judge becomes a central figure in decision making and becomes a generator of law creation itself. Only one person, ”judge Hercules”, can attain a hidden meaning of natural law on which all legal principles are based, and which will give the best depiction of the needs of an individual in a society. The new legal reality achieved through interpretation should satisfy moral criteria of each individual person, and this new reality should treat everyone equally respecting the right to self-determination. In that manner, Dworkin’s interpretative natural law theory gives privileges to individuals: those that judge and those that are judged. Such understanding of the nature of law is focused on deciding hard cases. Key words: natural law, interpretation, legal principles, an individual The views of Ronald Dworkin, one of the most influential figures of Anglo-American legal tradition, occupy a middle ground between two totally opposing standpoints in legal theory, between the strict positivism and contemporary postmodernism. His publications Taking Rights Seriously 1 and 1

Ronald Dworkin: Taking Rights Seriously, Ducworth, 1977. (Ronald Dvorkin: Suština individualnih prava, Podgorica, 2001.)

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Law’s Empire 2 had brought about a dramatic turn in the legal theory and philosophy of law. This turn comprised a contemporary understanding of the tradition of liberalism embodied in Locke and Hayek, as well as defining of a new problem in identifying the phenomenon of law and analysis of its meaning and contents, i.e. the problem of legal interpretation. Two fundamental works of Dworkin had brought about changes in the legal sphere in the USA, as well as in England where the legal tradition rested on strict positivism and showed tendency of rejecting any possibility of interpretation (Austin, Bentham) and any attempt of other social phenomena, i.e. social factors, to influence it. One of the most significant characteristics marking the completely undeveloped civil life during the 1950’s and 1960’s in America consisted of establishing absolute and unquestionable difference between what law really is and what law should be. Dworkin negates this concept by introducing morals in the very notion of law, as well as by introducing the concept of principles, which represent the basic value and precursor of human rights without basing them on the old rationalistic postulates. Dworkin’s philosophical-legal point of view integrates and synthesizes the tradition of jusnatural theory and the theory of morals with the hermeneutical character of postmodern philosophy, which results in the interpretative theory of law. The existing classification of legal theory schools of thought in the Anglo-Saxon jurisprudence, regards the views of Ronald Dworkin as a theory balancing between positivism and the theory of social facts. On the other hand, they are close to jusnaturalism, whereas some authors consider it a theory of realism. 3 In a certain way, Dworkin follows the concepts of legal realism propounded by Holms, Cardozo and Frank. However, aside from the noticeable analogy, these views also differ considerably. 4 Such classification of Dworkin’s perception of law can be ascribed to his insistence on moral principles in the law and partially results from a broad range of topics he dealt with. The fields he studied comprise law, politics, social philosophy, bioethics, theory of adjudication, etc. 5 In his 2

Ronald Dworkin: Law’s Empire, Harvard University Press, 1986. (Ronald Dvorkin, Carstvo prava, Beograd, 2003.) 3 Simon Blackburn: Oksfordski filozofski rečnik (Oxford Dictionary of Philosophy), Novi Sad, 1999, p. 93. 4 Gordana Vukadinović, Radivoj Stepanov: Uvod u filozofiju prava (Introduction to the Philosophy of Law), University of Novi Sad, 2004. pp. 166. 5 Ibid, pp. 167.

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opinion law represents a coherent system with immanent morals and social facts as well as compulsion. He claims that law should be regarded as a broad phenomenon, i.e. as integrity. 6 Ronald Miles Dworkin is one of the most significant law philosophers of our time. 7 His contemporaries often mention his monumental contribution to the philosophy of law and consider him to be a theoretician enjoying worldwide reputation. 8 This is clearly proven by the number of reviews of his books and papers, as well as considerable interest for his theory shown throughout the world. Many of his books have been translated into different world languages. Ronald Dworkin, born in 1931, graduated jurisprudence at Oxford (Oxford – Magdalen College) after which he enrolled the Harvard Law School from which he graduated in 1953. After graduation he worked as a clerk in an American law firm (American Judge Learned Hand) between 1957 and 1958; after that he worked in a lawyers’ association (New York Law Firm of Sullivan and Cromwell) between 1958 and 1962. During that same year, Dworkin became a Professor of Law at Yale University. In 1969 he was appointed to the Chair of Jurisprudence at Oxford. Other professors of jurisprudence at Oxford were likewise well-known experts of contemporary legal theory: John Finnis, Neil MacCormick, 9 and Jozeph Raz. From 1975 Dworkin had been working as a professor of law at the New York University where he held a seminar on the philosophy of law together with Robert Nozick, until the latter passed away in 2002. Dworkin had also been giving lectures at other prestigious American universities such as: Harvard, Cornell and Princeton. He had also given numerous lectures at the University College of London in England. The first works he published drew a lot of attention with their antiutilitarian nature. As a young author, Dworkin was especially influenced by

6

Ronald Dvorkin: Carstvo prava, pp. 189 ff. David A. J. Richards: preface for: Stephen Guest: Ronald Dworkin, Stanford University Press, 1998. pp. 1 8 Gordana Vukadinović, Radivoj Stepanov: Uvod u filozofiju prava, pp. 166. 9 Neil MacCormick (1941), has worked as a professor at the university in Glasgow (Glasgow University) and Edinburgh (Edinburgh University) since 1972. He is a member of the Academies of Sciences and Art both in Finland and Britain. He is the author of numerous books on the theory of law and politics. His major works include: Civil Liberties and The Law, 1977; Legal Reasoning and Legal Theory, 1978; H.L.A. Hart, 1981; Legal Right and Social Democracy, 1982; In Institutional Theory of Law, 1986. 7

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John Rawls and his work Two Concepts of Rules 10 , published in 1955. After the publishing of this book, it became clear that liberalism had found a new defense of its economy and contract based system which Rawls modified and improved. Dworkin was also greatly influenced by Herbert Hart, who had influenced a whole generation of young lawyers and law theoreticians who shared his inspiration with Wittgenstein and the philosophy of common language. It is therefore safe to say that these two law theoreticians, John Rawls and Herbert Hart, left an imprint on the work of Ronald Dworkin. Bernard Williams, one of the greatest Anglo-Saxon philosophers, also had a significant influence on Dworkin. His influence is especially noticeable in Dworkin’s idea of equality. Gharet Evans, another philosopher, needs to be mentioned when we talk about the work of Ronald Dworkin 11 . During the period between 1973 and 1975 Evans and Dworkin held a seminar at Oxford dealing with the topics of impartiality in law and morality. It was at these seminars that many of their joint ideas were developed. The most significant publications of the 1950’s which, among others, had helped Dworkin to define his own view of law were the works of: Julius Stone, The Province and Function of Law, 1946; Wolfgang Friedman, Law and Social Change in Contemporary Britain published in 1951; Dennis Lloyd, Introduction to Jurisprudence published in 1959, containing an overview of the main jurisprudence schools of thought. 12 These works helped him understand and overcome traditional liberal ideas of state and society and create his own legal reality. Law Beyond the Law 13 is a very important title of Dworkin’s which exhibits his metaphysical views and explains to a great extent his views on law. This paper became one of the chapters in his book Law’s Empire and explains his theory of integrity, i.e. law as integrity, very clearly and with great precision while negating any form of abstraction in the definition and interpretation of law. The title itself, Law Beyond the Law, indicates that law certainly does not comprise just court decisions, contrary to the point of view supported by realists, conventionalists and conservative legal theory. Nevertheless, Dworkin claims that law does not consist of bare legal norms or pure legal texts either,

10

John Rawls: Two Concepts of Rules, Philosophical Review, 64, 1955. This unrecognized young philosopher with great talent passed away tragically in 1980, at the age of only third one. 12 Stephen Guest: Ronald Dworkin, Stanford University Press, 1-16. 13 Ronald Dvorkin: Carstvo prava, pp. 433. ff. 11

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contrary to what positivists claim. Law is an independent system, with its own defined habitus; it represents a self-sufficient, corporative whole which shapes and purifies itself. Legal system contains various forms of law which differ in levels of purity and perfection. Discovering the perfection of law always progresses from the worse towards the better. The less perfect forms of law, namely, contain also a more perfect form which is yet to be discovered. Thus, we gradually progress to more perfect forms. This is a very slow, almost evolutive process. The law therefore represents a coherent, organized whole, the purest form of which is yet to be found. This is the task of absolutely intelligent judge, whom Dworkin calls Hercules, who will be capable of identifying all essential structures of an ifallible system and finding its most perfect form and meaning contained somewhere in a legal text. The title of his paper – Law Beyond the Law leads to certain natural-law implications, i.e. the law lies outside legal texts and represents independent and self-sufficient system integrated with positive law in such a way as to have positive influence on it. Purifying the law leads to its more perfect form, having as a goal the image of this ’law beyond the law’. The law attains its ideal through the interpretation of a judge. As a consequence, many legal theorists, as well as those who criticize Dworkin, such as Neil MacCormick, Raz or Paul Gaffney, classify him as a theorist of natural law. Raz was among the first to notice natural law elements in his theory. 14 Dworkin gave a new meaning to natural law by introducing eternal values reflected in systematic and complete integrity, as well as by insisting on moral contents of the law. Natural law does not study what law is, but what it should be. Pursuant to natural law, judges should decide difficult cases by interpreting the political structure of their community in a special way trying to identify moral principles of the community. 15 Dworkin’s world, much like Rousseau’s, originates from the same idea of creating the world from the subjective. He believes that a man has been alienated from his own reality and that his condition is not authentic. However, the basic difference between these two authors issues from contrasting perceptions of abstract categories such as freedom, general will, and civil state. Dworkin does not postulate a non-historical moment in the existence of natural state – his individual rights result from the existence of the individual morality and conscience 14

Joseph Raz: ”Professor Dworkin’s Theory of Rights”, Political Studies, 26, 123, 1978. Quote: Ronald Dworkin: The Essence of Individual Rights, pp. 444. 15 Ibid.

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of each person, where morality is divested of any notion of collectivity. General will, postulated by Rousseau, is an abstract notion of the freedom of the majority, whereas the will of all includes individual wills of each member of a society. 16 In his work, Dworkin completely disregards general will and abstract category of freedom. He insists on only one of Rousseau’s claims for freedom and equality. He insists only on equality. This commensurable and commutative value is not characteristic of contemporary liberal world founded on the material aspect and free exchange. On the other hand, Dworkin’s theory clearly reflects the pinnacle in development of particular wills opposed to the general will. The wish for equality remains in his theory only an impossibility of denying the notorious fact that general distributor does in fact exist. Thus, a fatal inversion takes place: the will of all resists the general will and strives to conquer through its anarchism. Universes of individual wills, set in motion by subjective, social behaviour and creation of individual personality rise above the politics – ’a modern subjectivity resting on the principle that all exists because of me, presented itself explicitly through a decision to create the state and era from the very beginning, from the idea itself –world is created from a single idea.’ 17 Dworkin’s theory in its natural-law dimension reminds of an elaborated concept of Rousseau. It casts a new light on the theory of natural law, by negating the concept of general will. General will does not create law, it represents merely a small part of the law as integrity; it represents the power of politics and rule in which individual rights and individual will are dispersed and deprived. In place of general will as a central topic justifying supremacy of collectivity, Dworkin postulates a new source of sovereignty – law as integrity. Law as integrity is individual and general at the same time – it represents a ”common” will which doesn’t make ontological differences between an individual and collective. It recognizes equally an individual and the collective. In Dworkin’s theory subjectivity is raised to objectivity. Law becomes integrity of both the individual and the society – Rousseau’s general and individual will, where the individual, i.e. will of all is given priority. However, this imagined integrity has not yet been accomplished. Law is a system which purifies itself – by pursuing the values of integrity less perfect forms become more perfect anticipating their time of the 16

Gordana Vukadinović: Žan Žak Ruso i prirodno pravo, (Jean-Jaques Rousseau and Natural Law) Petrovaradin, 2005, pp. 94. ff. 17 Lazar Vrkatić: Ontologijski stav filozofije prava (Ontological Content of the Philosophy of Law), Novi Sad, 1997, pp. 41.

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absolute, i.e. the integrity itself. 18 Integrity is not unattainable but it has not as yet been achieved. Dworkin himself thinks of it as a possible utopia, as well as the solution to the incessant conflicts between the political power and the individual, regarding the power of politics as sufficiently abstract to lose the credibility of subject discussed in the law. Dworkin’s theory questions the authenticity and legitimacy of power. It poses the question whether a state should exist at all if it fails to include in its concept innumerable individual wills. Owing to this discrepancy between the law as it is and the law as it should be, it is safe to say that Dworkin’s theory is as much a natural law theory as the theory of Rousseau and his contemporaries, such as: Lon Fuller, the founder of procedural subtype of natural law; and John Finnis, the founder of substantive naturalism. 19 The analysis of Dworkin’s and Rousseau’s work shows another similarity between the two authors which has to be kept in mind. The similarity lies in the act of installing one person that should accomplish a heroic task of attaining the set values of the ideal. In Rousseau’s theory this person is a ”heroic legislator” vested with the powers of the highest human reasonableness, 20 personifying the general will and the spirit itself; whereas in Dworkin’s theory this is the Hercules judge who also possesses superhuman abilities in making decisions which allow him to penetrate the very essence, i.e. the nature of law. If the heroic legislator of Rousseau embodies general will that creates everything from one idea, 21 in Dworkin’s theory the individual will of this Hercules is not a product of the general, which indicates additional revolution and advocacy of the subjective. Subjective in his work is presented in its full significance – as a being inherently abundant in virtues. All multiplicities and heterogeneities of contemporary society and law are revoked through an ideal image of a unique, virtuous man. This is a true celebration and praise of an individual. ”Heroic legislator” in Rousseau’s theory deals with generality; he represents an emanation of general will and enacts laws. Hercules does not represent the majority, nor is he a manifestation of any kind of generality. As such, Hercules is not capable of

18

Ronald Dvorkin: Carstvo prava, pp. 243 ff. Ronald Dvorkin: Ibid, pp. 433. 20 Žan Žak Ruso: Društveni ugovor – O poreklu i osnovama nejednakosti među ljudima (Social Contract – About Origins and Foundations of the Inequality Among Men), Zagreb, 1978. pp. 117. 21 Gordana Vukadinović: Žan Žak Ruso i prirodno pravo, pp. 102. and further, Lazar Vrkatić: Ontologijski stav filozofije prava, pp. 58. 19

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enacting laws but he is very adept in deciding individual cases. His virtue is not even a social virtue, because that too is derived from general virtue. Civic virtue does not differ from general virtue in absolute terms and while general virtue is not present in everyone, the civic virtue aspires to spread in all. 22 Hercules, therefore, does not possess civic virtue, nor does any other individual in Dworkin’s society. ”Heroic judge” is a distinguished individual vested with the right to attain the absolute, i.e. the integrity itself. Dworkin’s theory can therefore be classified as neither strictly liberal nor rational, least of all intellectual, whilst the individuals in Dworkin’s society are not citizens – they are neither virtuous nor rational. Individuals in Dworkin’s society have their own, self-willed nature, which are inherently authentic and do not constitute a part of ”spirit of the community” or any other abstract principle and generality. General will as a political moment is put in question, ruined with the establishment of «self-awareness» of an individual and advancement of the new ”technology society”. We can see that Rousseau’s theory when applied in the setting of a modern society and law can not be presented as the manifestation of general will. The only thing certain is a clear tendency to establish a completely new order, even though it may be a utopia, i.e. unreality. The novelty Dworkin introduced in the theory of natural law lies in the relation between natural and positive law. More specifically, positive and predetermined, natural law, are not entirely metaphysically separated in the theory of law. What links them is interpretation. Interpretation gives them life; it is their logos, an eternal flame linking two seemingly irreconcilable opposites. Interpretation is without a doubt the operating principle without which neither positive law, nor law as integrity would be able to function. Through interpretation positive law continually tries to find the best possible answer and achieve the highest value. This is both its weapon and the way in which it can be saved, brought to life and revolutionized. Principles are the starting point of interpretation, because human rights originate precisely from these principles. They indicate rights which man is entitled to naturally and outside of legal texts, in other words they are autochthonous. Let us consider now the nature of Dworkin’s absolute, i.e. law as integrity, in the light of natural law theories. Heraclites claimed that ”From a God’s point of view all things are beautiful, good and just; however, man has made assumption 22

Lazar Vrkatić: Prirodno pravo i pozitivisanje prava (Natural Law and Positivization of Law), doctoral dissertation, University of Novi Sad, Faculty of Law, 1993. pp. 222.

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that some things are just and others are not” 23 . Aristotle believes that natural law is only that law which has the same significance everywhere, i.e. a law common to all. 24 Other ancient writers, such as stoics, claimed that natural law represents the measure of all other laws, while others equated it with God. The foregoing views show that natural law is regarded as something eternal and constant, unlike the law of man which is susceptible to changes. While natural law, whether considered to be an embodiment of God or nature itself, is monolithic and unique representing an ideal and absolute existence, temporal laws are led by forethought of the immutable and inevitably changed in attempts to attain perfection. A sharp metaphysical distinction exists between natural, set law and positive law. This represents one more difference between Dworkin’s teaching and classical theories of natural law. At the same time this is also a novelty and a sensational discovery of its own kind. The existence of natural law, i.e. law as integrity, is not motionless. On the contrary, Dworkin says that he never claimed that there is one single, right answer, but a variety of ’right’ answers. 25 His world of law as integrity is not monolithic or motionless. Quite the opposite, it contains the principle of inclusion. Open to all new ideas and multi-layered, in other words, it is pluralistic and dispersed, just as individuals differ from each other. This claim represents an undisputable proof of the influence of critical theories as well as postmodern theory of law. Dworkin has been classified as a theorist of ”postliberalism” 26 for a good reason. It is precisely this essential element of his theory: the mobility, inclusion and flexibility, where we recognize his departure from classical philosophy of natural law as well as breakaway from Kant and any other classical philosophy. He claims that universal natural law does not exist and that it differs throughout regions and historical eras, as well as individually in each case. Thus, Dworkin’s natural law becomes interpretative natural law. With such perception he negates the existence of categorical moral imperatives, presumed human rationality, universal intellectual contents, even God himself (natural law as divine providence) and seeks out authentic achievements hidden in his nature. Dworkin’s theory does not contain artificial geometry of omnipresent mind; this

23

Quote from: Leo Strauss, Prirodno pravo i istorija (Natural Right and History), Beograd, 1997. pp. 119 24 Aristotel: Nikomahova etika (Nichomachean Ethics), Beograd, 1960. pp.129 25 Ronald Dvorkin: Carstvo prava, pp. 447 26 Simon Blekburn: Okfordski filozofski rečnik, pp. 93

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concept becomes totally exhausted with irrational elements which recognize even imagination and everything else comprising an individual. These elements are principles from which human rights are derived and which are different in every person. Their common denominator is neither mind nor intellect. This denominator, according to Dworkin, can only be the possibility of communication between totally different individuals. Dworkin insists on directing attention to the impossibility of speaking in the same language 27 and negates the fact that communication is carried out exclusively through the phenomenon of human rationality. The second argument supporting the claim that universal rational content, i.e. presumed rationality, does not exist, consists in his explanation of self-construction, i.e. self-purification of positive law. Law develops through evolution, namely: its simple form contains a more perfect one, whereas the latter contains an ever more perfect form. Law is dynamical; law gains this dynamic, i.e. progress, through interpretation. However, this is not an interpretation of any kind, it is an interpretation performed by an individual. Thus, the law progresses creating continually new legal realities. New legal realities are also interpretations which should satisfy moral criteria of individuals, interpretations based on principles treating everyone equally, without prejudice and respecting each person’s right to self-determination. This process is infinite. A permanently set law, therefore, does not exist. All the classic formulas of natural law used by Dworkin have been observed, as well as several postmodern elements. The aforementioned leads to conclusion that Dworkin is trying to synthesize moral theory with the tradition of natural law and elements of postmodern philosophy. The result is interpretative theory of law, focused on the essential moral nature of deciding difficult cases. The judge is the one who must find the ideal integrity. He

27

Djilo Dorfles (1910– ), one of the most renowned philosopher of aesthetics uses expression ’pre-Babylonian state’ (before the construction of the tower of Babylon was all people spoke the same language) in his book Theory of Disharmony he tries to indicate the so-called geometric abstractism, i.e. rationalized, ”understandable” perception of world and reality. Taking this view into consideration, it is clear that Dworkin’s interpretative theory of law and Habermas’s theory of communication fully recognize ”post-Babylonian” historical stage, observing people in line with the principles of their diversity.

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emphasizes epistemic and metaphysical aspect of morals. He gives priority to individual goals instead of the politics of a group. 28 At this point, Dworkin makes a truly brave and impressive inversion. Individual opinion becomes the objective truth. This highly significant and essential postulate becomes the source of very serious consequences in Dworkin’s views on the rights of the collective and individuals, human rights issues, legal relations, duties and obligations, as well as theory of adjudication. Should we accept the thesis that morals are ontological expression of social principle, 29 we can conclude that society in Dworkin’s theory is not a civil society because it does not contain morality which is derived from the collective according to a traditional definition. This society is rather a community of individuals in which they are treated equally by the authorities and interconnected through communication – exchange of opinions about their uniqueness. Individual will does not stem from the concept of state or spirit; it exists of its own. It has its own independent morality. The attempt to equate the significance of an individual and the state is indeed quite noble. However, this intention opposes profoundly the authority of the spirit of the state and dogmatism of its sublime position in the development of the world spirit. Owing to this characteristic, Dworkin’s theory of law is decadent and destructive not only to the very notion of the state, but also seriously challenges the idealistic premise of the development of the being itself. Judge Hercules is also only an individual trying to take into consideration all relevant facts of the broader concept of ’law as integrity’ in the process of adjudication, this judge respects not only laws and political goals but equally and to the same extent the opinions of each individual. In this way he builds his own theory of law. Using the existing law he creates a new, evolved and more perfect law. Dworkin believes that existing law contains a purer form of law which he calls pure integrity. The task of judge Hercules is to discover the most perfect possible law within the existing imperfect law. To attain law as integrity, the highest quality in the sphere of law, the subject discovering this law, i.e. Hercules must be endowed with characteristics enabling him to accomplish this task. For this reason, Dworkin ascribes to judge Hercules the virtues of Aristotle’s ancient man full of virtues. This judge, however, is not Aristotle’s man nor can 28

Paul Gaffney: Ronald Dworkin on Law as Integrity Rights as Principles of Adjudication, Edwin Mellen Press, 1996. 29 Lazar Vrkatić: Prirodno pravo i pozitivisanje prava, pp. 364.

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the word ’virtue’ carry the same importance and meaning in the theory of Dworkin and the teaching of Aristotle. Virtue is a concept which represents the essential value of antique philosophy, especially in the philosophy of Plato and Aristotle. It denotes above all morality, honour, nobleness and heroic acts – it represents the activity of the soul. 30 Aristotle believes that virtue is something self-sufficient and perfect – he defines virtue as the measure of all things. 31 In his opinion, a man of virtues merely reflects the polis and symbolizes immobility and self-sufficiency. Aristotle abhorred democracy and considered it to be the worst form of rule, whereas he thought of consumption-production industry as the most primitive form of activity. 32 Dworkin never mentions self-sufficiency; in his theory everything progresses and changes from positive legislation to the essential assiduity of law as integrity. Dworkin’s individual may hold opinions which differ entirely from the views of community and the state. The question now is why does judge Hercules have to be the one endowed with virtues. Generally speaking, the nature of virtue is rather disputable in the society in which Dworkin lives. This analysis can only attempt to provide an answer to that question. To answer the question of what is virtue in the world today, we must first realize that judge Hercules actually represents a generator of interpretation. Interpretation is the linking element and it sets the whole of Dworkin’s machinery in motion. It has a defined goal and course, i.e. it progresses towards set values which comprise law as integrity and the integrity itself is again subject to interpretation. In this dynamic Dworkin’s world it is difficult to identify something that will be constant and unchangeable, the only thing that remains motionless. Society in which we live represents a sort of phenomenon in the development of human consciousness in which the conflict of opinions, behaviour and habits is fully allowed. In this society homosexuals and feminists, theorists supporting post criticism opinions and members of ’jurisprudence outsiders’ express their opinions freely without the desire to prove them right. In this case, however, Dworkin has succumbed to the ancestral, old beliefs showing 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. 30

Ljubomir Tadić: Filozofija u svom vremenu (Philosophy in its Time), Beograd, 1998. pp. 6. Aristotel: Nikomahova Etika (Nicomachus Ethics), pp. 16. 32 Aristotel: Politika (Politics), Beograd, 1960. pp. 17. 31

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Rousseau also discussed this matter and believed that man is born to live in virtue. 33 According to Dworkin, the whole activity, i.e. interpretation, as the link between the two worlds, lies in the virtue to recognize bipolarity and two sides of each process state – individual. A true activity that alters the world can come solely from virtue which is able to comprehend this. Dworkin realizes this clearly and tries to ascribe these virtues to the omnipotent judge Hercules. Unfortunately, Hercules is only a subject within the law. In Dworkin’s theory everything is derived from the subject: morality, interpretation, law, even the state. All these are founded on the morals of an individual. This morality is not objective or of rational nature. Precisely because of the fact that objective moral judgment is not recognized, it would be better to say that in Dworkin’s theory everything lies on the principles of an individual. Since we can not reduce the individuals in Dworkin’s theory to general rationality, they do not represent a part of general moral legislation. It can therefore be concluded that they are divested of the feeling for justice and impartiality recognizing no general category. The individual has only ’personal justice’ and individual independent morality. The only person capable of comprehending integrity and general categories is judge Hercules because he possesses virtues. However, Hercules is not polis; he is not a man of ancient Greece and therefore has no old, ancestral virtues. Precisely because of this, Hercules does not exist; he is an imaginary and supernatural person. In reality this imaginary person can have only his own individual interpretation. Dworkin’s attempt to hypostasize the subject as a thinking being, differs entirely from the ways and methods in which men used to think. German idealists believed that the subject was subordinated to the objective truth – Kant believed that the subject can never perceive this truth, 34 whereas for Hegel subject is only a grain of sand in history, necessary part of the eternal mind moving in compliance with its rules. 35 Dworkin’s views are totally opposite: the subject is one that creates and sets conditions, poses questions and gives answers, whether it be Hercules vested with virtues and guided by principles or any other individual of the society advocating personal opinions. It is clear that, regardless of his opposition towards postmodernism, feminism and many

33

Gordana Vukadinović: Žan Žak Ruso i prirodno pravo (Jean-Jaques Rousseau and Natural Law), pp. 51. 34 Imanuel Kant: Kritika praktičnog uma (Criticism of the Practical Mind), Beograd, 2004, p. 29. 35 Georg V.F Hegel: Enciklopedija filozofskih znanosti (Encyclopedia of Phylosophical Science), Sarajevo, 1987. p. 122, 412.

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other contemporary theories, Dworkin’s theory was influenced by critical and ’outsider theories’ to a very great extent. According to him, no coherent programme can survive for a long time in a community with too many members. 36 We see in that Dworkin’s theory both coherence and integrity lie in the personality itself. Hercules is a hybrid resulting from a fragmented society; he is trying to reach the hidden meaning of politics. By conferring the finding of potential meaning to Hercules alone, Dworkin runs the risk of transforming Hercules into a purpose of his own, which is exactly what Hercules does become. He comes to be the source and centre of interpretation. The purpose in Dworkin’s theory therefore does not lie in the collective or laws observed only formally. He seeks the existing reality of human nature and laws which would represent it accurately. Individualization of society – this is the quality Dworkin promotes and Hercules represents its prototype. In this way the law becomes obligated to the individual and not vice versa. The idea of modern subjectivism in Dworkin’s work evolves further – an individual is no longer an abstract subject in the law resulting from the general good, but a free maker of the law. Herbert Marcuse was right when he compared the spirit of the world, a hypostasized historical subject, with the hidden and terrifying Calvinistic God in his title The Mind and Revolution. Hegel argues that this deus absconditus turns history into a scene of suffering and affliction instead of happiness. 37 While Charles Taylor believes that avoiding moral absolute was the product of the supremacy of technology, Dworkin is closer to the opinion that avoiding this absolute represents a deliverance from tyranny of unified thinking. Subject in the law is not free; individuals in contemporary society are inhibited by the omnipotent collectivistic system of rule. Nevertheless, there is one element in Dworkin’s theory that allows true freedom of man in an authentic and ontological sense. Only those that create and those who have freedom of creation are free. For the time being, only judge Hercules is free because his freedom is not a permitted freedom; he has the freedom of interpretation, i.e. creation. The social definition of freedom is reflected in the attitude that a person’s freedom is limited by another person’s freedom. This is a rational, liberal attitude which regards freedom as limited self-will. 38 However, the freedom of Hercules does not have the form of 36

Ronald Dvorkin: Carstvo prava, pp. 228. ff. Ljubomir Tadić: Filozofija u svom vremenu, pp. 22. 38 Lazar Vrkatić: Prirodno pravo i pozitivisanje prava, pp. 290. 37

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permission; he is the only one in touch with the concept of integrity as an absolute concept and therefore the only one who has freedom in the substantial sense. As we have already concluded a person with supernatural qualities, such as Hercules, does not exist – and this is precisely what constitutes Dworkin’s metaphysics. Set values which we may achieve, principles as basis for individual rights – that is what constitutes Dworkin’s new natural law. The rest of us mortals are not allowed to attain freedom in a substantial sense. Our freedom is actually a cry for equality. We can conclude therefore that everything Kant said about freedom, Dworkin can argue about equality. Do we have a right to freedom? Should we embrace Dworkin’s views the answer will certainly be negative. Calling attention to such facts, as well as lack of freedom and inequality among individuals in society constitutes another enormous contribution of Dworkin to the theory of natural law and contemporary postmodern developments in the field of law. He gave us the opportunity to view modern legal theory from a different angle, i.e. from a perspective of modernized and multiple legal reality originating from ’anti-universal’ and post-metaphysical beliefs. Such a viewpoint refuses to accept legality as an emanation of unitarian mind, whereas universal reason becomes impossible in the setting of social and ideological pluralism. In Dworkin’s theory, just like in many other modern theories, uninterrupted communication takes place between subjects dealt with in the law and those who deal with the law. In this way, legality is free from preconceived reality; it becomes an integrative phenomenon which ’comprises’ experiences of individuals and which is interpreted in the ’common language’ known to all.

5 Sanja Đurđić, LL.M, Assistant Faculty of Accommodation Business Novi Sad, Serbia

LIBERAL THEORY OF JUSTICE OF JOHN RAWLS Abstract: John Rawls is the most important and most influential political philosopher of the 20th century. His book The Theory of Justice marked the turning point in American political philosophy, having in mind that it has merits for the renaissance of the idea of justice in contemporary political philosophy. In this book Rawls explained his liberal theory of justice in order to construct a model of a fair individual constitutional and democratic society. However, he has often been criticized for dealing with problems in individual societies i.e. constitutional democracy. At the same time he has been pointed up to neglect the problems of justice in international affairs. Rawls was aware that it was necessary to expand his liberal concept of justice with problems of fair international relationships, meaning that there was a need to formulate the conception of international justice. In that way, he made a complete liberal theory of justice which comprises the concept of justice for individual democratic society and justice for individuals as well as the concept of international justice. Key words: principle of justice, basic structure of society, justice for individuals, international justice

The American philosophy from the beginning of the 20th century is marked by the development of logical positivism, followed by the philosophy of language. Theoretical marginalisation of ethics and politics was further continued, so that it is significant for the whole first part of the 20th century. These circumstances lead to the belief that political philosophy was dead. This pessimistic view of Anglo-American political philosophy was given by Peter Laslett in 1956 when he said that ”for now the political philosophy is dead in any case” 1 . 1

P. Laslett: Philosophy, Politics and Society, Oxford, Blackwell, 1956.

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The turning point and novum in American political philosophy was set by the capital work of John Rawls The Theory of Justice, published in 1971. He takes the credit of refuting the belief that political philosophy is dead as well as of renewing the American political philosophy of the seventies in the 20th century. With his work Rawls brought back to life reflections of intellectuals about the problems of justice. Thanks to this, it can be said that he is responsible for the renaissance of the idea of justice in the contemporary political philosophy. Rawls’ theory of justice was born as the consequence and reaction to the preceding circumstances. Namely, in the modern period, the dominant ethical and political theory in western democratic societies was utilitarianism in its various forms. Rawls’ intention was to build an understanding of justice which would be a reasonably systematic alternative to utilitarianism and more acceptable than utilitarianism. The main reason for this intention he finds in the weakness of the utilitarian doctrine as the basis of institutions of constitutional democracies. According to Rawls the main drawback of utilitarianism is considered to be its aim of utmost collective happiness, i.e. utmost balance of collective satisfaction of all individuals. Rawls’ liberal theory of justice was born in the course of describing political and social justice, which would be more acceptable than the leading well-known traditional concepts. With it he tried to generalize and put on a higher level of abstraction the traditional theory of social agreement, as it was represented in the 17th and 18th century by John Lock, Jean Jacques Russo and Immanuel Kant. Rawls formulated his theory of justice for a specific type of subjects. It is, mostly, applied to what is called the basic structure of society. The society, he has in mind is a modern constitutional democracy. He considers the basic structure of society, i.e. an individual constitutional-democratic society to be the primary subject of his theory of justice. By basic structure of society he means basic political, social and economical institutions of society and the way they fit together into a single system of social corporation. Rawls differentiates the principles of justice for individual constitutional-democratic society, i.e. principles of justice for the basic structure of society from principles of justice applied to individuals and their behavior in special circumstances. The theory of justice becomes complete only when, alongside with the principles of justice of the basic structure of society, it also comprises the principles of justice for individuals. It is a fact that the concept of justice for individual constitutional-democratic society is the ground on which the justice for individuals and international justice is based and further developed. His main intention was to establish the conditions,

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

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The second principle of justice refers to the distribution of profit and wealth and to establishing organizations, which use the differences in authorization and responsibilities. All social values should be distributed equally. Every departure from equal distribution of profit and wealth is allowed only if the uneven distribution is beneficial for everybody. Inequality, which is not beneficial for everybody, represents injustice. At the same time the positions of authority and responsibility have to be available to everybody. The second principle requires the positions to be open, meanwhile the economical and social inequality are regulated to bring profit to everybody. Reasons which give advantage to his principles of justice in comparison with the others from the list offered to the participants in the original position according to Rawls are: condition of generality, universality in application, limitations of information; understanding of the parties who have certain basic interests which have to be protected if possible and that as free individuals they have a highest ranking interest to preserve their freedom to modify and improve these aims. He is certain that the participants of the original position will be in favor of his principles of justice for the mentioned reasons. This is because they require equality in regulating basic rights and duties, and because they consider social and economical inequality just, only if, as a consequence they have settlement profits for everyone, primarily for the members of society who are in the most unfavorable position. ”Once we decide to look for a comprehension of justice which prevents using coincidence of natural talent and coincidence of social circumstances as measures of political and economical advantages” 2 , his two principles of justice become inevitable, concludes Rawls. Therefore, he is convinced that his principles of justice provide better understanding of demand for freedom and equality in a democratic society than their alternatives (utilitarianism, perfectionism, intuitionism). In Rawls’ concept of justice as objectiveness, after the selection of principles of justice for the basic structure of society, the next thing to do is to select the principle of justice for individuals. Although of secondary and second-instance importance, only after considering the principles of justice for individuals, the understanding of justice as objectiveness becomes complete. Conferring advantage in the choice of the principle of justice for the basic structure of society is in accordance with Rawls’ understanding of justice as the first virtue of social 2

J. Rawls: A Theory of Justice, Harvard University Press, Cambridge, 1971 (Serbian translation will be used in the text, Dž. Rols: Teorija pravde, CID, Podgorica, 1998, 21).

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institutions, i.e. with the social nature of the virtue of justice and its tight connection with social practice. The principles of justice for individuals, as well as principles of justice for the basic structure of society are the subject of genuine agreement in the original position. They are, also understood as a result of a hypothetical agreement. As in the case of the selection of the principles of justice for the basic structure of society, the selection of the principles of justice for individuals is done from a short list of traditional and well-known principles. The selection of the principles of justice for individuals is significantly simplified due to the fact that the principles of justice for the basic structure of society, have already been adopted. Namely, the offered alternatives are limited only to those, which are compatible with the two principles of justice for the basic structure of society. The principles of justice for individuals set their institutional relationships on one hand, and the way individuals become engaged with each other on the other hand. It is necessary to choose the principles of justice for individuals, which are in accordance with the principles for the basic structure of society. Rawls divides the principles of justice into requirements and permissions. Requirements comprise obligations and natural duties. By obligations he means the principle of justice and good faith. Natural duties are divided into positive and negative. As examples of positive natural duties he quotes: supporting of justice, mutual help, and mutual respect. Under negative natural duties he means: duty of not doing wrong, duty of not harming the innocent and so on. Having in mind that Rawls limits his discussion on the theory of social justice, he is less involved with the other kind of principle for individuals – permissions. This is because permissions are actions left at the free disposal of individuals to be or not to be done. These actions do not disturb any of the obligations or natural duty. Permissions are divided into indifferent i.e. morally indifferent and over-duty permissions. By over-duty acts he means acts of benevolence and mercy, heroism and self-sacrifice. They are not required because they are neither somebody’s duty nor obligation. The individual who has performed an over-duty act has not invoked a challenge permitted by natural duties because of a significant loss or risk for the one performing such an act. Rawls has often been criticized for dealing with problems of justice in an individual society, i.e. in a constitutional democracy. At the same time, it has been pointed out that he neglects problems of justice in international relationships. Well aware of the limitations of his theory of justice, Rawls developed and added onto, the concept of international justice. He did it in his book: The Law of Peoples, published in 1999. With this extention of his liberal theory of justice,

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he explains the way it can be applied not only to individual, constitutional-democratic regimes but also to international relationships. His intention was to provide conditions for a just international community and just international relationships and his aim was global justice. He set his main task to be bringing into just political principles, which regulate the behavior of countries with agreement learning and the explanation of the moral basis of international justice 3 . In that way, he formulated the concept of international justice alongside with the concept of justice for the basic structure of society and justice for individuals. Rawls’ concept of international justice extends the idea of social agreement from the basic structure of society to the society of people. So it comes into being by extending the liberal idea of justice. At the same time, he sets basic principles, which can be and should be accepted by liberal, as well as non-liberal but decent societies as a standard for regulating it international relationships. By the society of people Rawls means all peoples who in international relationships respect ideals and principles of international justice. Those peoples can be: liberal and non liberal but decent peoples. Tyrant and dictator regimes cannot, according to Rawls, be accepted as respectable members of a reasonable society of peoples. Rawls would consider the aim of the concept of international justice completely achieved if all societies could constitute either liberal or decent regimes. Therefore, the purpose of Rawls’ concept of international justice is the possibility of establishing a reasonably just society of peoples, which would comprise liberal democratic and decent peoples. In the course of creating the concept of international justice as well as during the creation of the concept of justice for individual liberal democratic societies, Rawls used the theory of social agreement, better to say, an expression he calls original position. In the original position, under the veil of ignorance, the rational representatives of peoples fairly set the basic conditions of cooperation between peoples who are as liberal people treated as free and equal. The main task of the rational representatives of peoples in the original position is to constitute the concept of international justice, its ideals, principles and standards as well as to set the way its standards are applied to political relationships between

3

Dž. Rols: Teorija pravde, 343; see our unpublished M.A. thesis: Liberalna teorija pravde Džona Rolsa (Liberal Theory of Justice of John Rawls) defended at the Faculty of Law in Novi Sad, 2004.

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peoples. In that way, the principles of international justice derive from the original position according to Rawls. Rawls claims that the representatives of decent hierarchic peoples will adopt the same concept and principles of international justice just like the representatives of liberal peoples. In that way the concept of international justice is achieved for a just political society of well-regulated peoples 4 . The principles of international justice which will be adopted by representatives of well-regulated peoples in the original position, are determined by Rawls in the following way: 1) peoples are free and independent and their freedom and independence should be respected by other peoples; 2) peoples should respect agreements and obligations; 3) peoples are equal and they participate in agreements, which are obliging; 4) peoples should respect the obligation of no intervention; 5) peoples have the right to self-defense, but they do not have the right to incite to war out of other reasons than self-defense; 6) peoples should respect human rights; 7) peoples should stick to certain set limitations in leading a war; 8) peoples have the duty to help other peoples who live under unfavorable circumstances, which prevent them from having a just or decent political and social regime. Rawls thinks that the mentioned principles enable justice between peoples, i.e. international justice. He claims that the eight principles of international justice have preponderance among any other principles. That is why he thinks that the representatives of well-regulated peoples probably adopt, exactly these eight principles of international justice. Rawls points out that, apart from agreeing with eight principles of international justice, the representatives of well-regulated peoples will also set the principles for creating and establishing organizations for cooperation as well as standards of objectiveness for trade and other institutions of cooperations. Guidelines will be also formulated for regulating mutual help among peoples as foreseen with the last principle of international justice. In that way, a complete concept of international justice and just political relationships between peoples will be set. From Rawls’ point of view liberal and decent hierarchic peoples would accept the same concept of international 4

Dž. Rols: Prava naroda, Beograd, 2001, 68.

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

6 Prof. Branko Tucakov Novi Sad, Serbia

JEROME FRANK’S LEGAL REALISM Abstract: The work deals with legal realism of Jerome Frank, whose psychological interpretation of the law was equaly intrigant when it appeared as well as it is at the beginning of the third millenium. Since there are very few texts in our language concerning legal realism of Jerome Frank, our goal was to present his athorship. Combining Frojd’s psychoanalysis with legal analysis creating sceptical, reform oriented theory, which reduced to a minimum the role of precedent in a legal system, where judges have all the freedom, Frank contended that certainty of law did not exist. According to him certainty of law is a myth, and source of that myth and belief in legal certainty he finds in child psychology. The key role in the making and application of law is in the hands of the judges, while everything depends mostly from their psychological characteristics. Forasmuch as analysis of individual factors which have influence on adjucations show how law really is functioning in the society, Frank is of opinion that the role of subjective and objective factors is more important than previously formulated normative solutions. Key words: legal realism, constructive scepticism, psychological interpetation of law, uncertainty of law, basic myth

Introductory Remarks Discrepancy between theory and practice in American Legal Theory at the end of twenties of the 20th century attains its culmination. The necessity for legal adjustment of state intervention and vindication of economic policy of New Deal, bred the movement of legal realism. Although legal realism symboled a wide set of about twenty authors having various beliefs and theoretical postulates, it is possible to say that most followers of the movement, above all, rose against law in books, and looked for solutions in what was really happening in the society,

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with following key topics: uncertainty of law, intercession for interdisciplinary access to study of law, intercession for legal instrumentalism, apprehension according to which law is an instrument for obtaining social goals and equilibration of opposed social interests. Central topic of this work is legal realism of Jerome Frank 1 and his psychological interpretation of law, as theoretician for whose work are most often related the basic postulates of legal realism movement, although on the contrary there existed a sociological wing conducted by Karl Llewellyn.

Emergence of Legal Realism Movement By the term ”legal realism” as defined by Brian Leiter 2 , we mean ”the intelectual movement in the United States of America that emerged around a group of professors and lawyers during the twenties and thirties of the 20th century, including Karl Llewellyn, Jerome Frank, Felix Cohen, Herman Oliphant, Walter Wheeler Cook, Underhill Moore, Hessel Yntema and Max Radin”. 3 1

Jerome Frank, (10 September 1889 – 13 January 1957, New York) Graduated philosophy and law at Chicago University. Worked as a lawyer, judge, employee of the Roosvelt administration and teacher at University . He wrote six books and numerous other works. First and most significant work Law and the Modern Mind, first published in 1930, with many reeditions, latest published in 1985. Then followed works: Save America First (1939), If Men were Angels. Some Aspects of Government in Democracy (1942), Fate and Freedom. A Philosophy for Free Americans (1945.), Courts on Trial, Myth and Reality in American Justice (1949.), he worked to the end, completing Not Guilty two days before he died, January 13, 1957. Frank also published many papers like: ”Are Judges Human?”, University Of Pennsylvania Review, 80, 1931, ”Why Not A Clinical Lawyer-School?”, 81 Un. of Pa. L.Rev. (1933.), ”What Constitutes 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,” 47 Colum. L. Rev. 1259, 1267 (1947.), ”Say It with Music”, 61 Harv. L. Rev. 921 (1948.), Jerome Frank, ”A Conflict with Oblivion: Some Observations on the Founders of Legal Pragmatism”, Rutgers Law Review 9 (1954.), and even one under name Anon Y. Mous, ”The Speech of Judges: A Dissenting Opinion”, 20 Va. L. Rev. 625 (1943.). 2 Brian Leiter, professor at Faculty of Law, University of Texas, states this determinant of legal realism in: Brian Leiter, Legal realism, in: A Companion to Philosophy of Law and Legal Theory, ed. Dennis Patterns, Oxford, 1996, 261 item 3 This number of ”realists” principally concurs with other authors, exception is Kevin Meckey who made a list of over 40 followers of that movement. See: Kevin Meckey: Triumph of Legal Realism MSC/DCL, 2004, 14 item, at site: http://www.law.msu.edu

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According to Leiter, legal realism is ”the most important domestic jurisprudent movement in the USA of the 20th century” 4 , which had an enormous impact, not only on the American legal educational system, but also on the reform of law and advocacy. Realism rose against, up to that time prevailing ”mechanical jurisprudence”, i.e. ”formalism”, which had a stronghold at Harvard, where Christofer Langdell favored the concept that law is ”science” which should be studied in all laboratories i.e. libraries, legal cases from which, pulling out general legal principles, law could become better and more effectively integrated. Langdell’ s standpoint was that ”libraries are for us what laboratories are for chemists and physicists or what museums are for naturalists”. No wonder that he spoke that ”what qualifies a person to teach law is not a practice at attorneys office, not an experience acquired in work with people, not an experience from adjucation or arguments from litigations, not experience, in short, of application of law, but the experience acquired by studying law”. 5 Instead of formalist apprehension, according to which judges make decisions on the basis of legal rules, there emerges the movement of realists with its central office at Columbia and Yale Universities, which favored a standpoint that from empirical observances, in a way courts really make adjucations, it ensues that they do not do that (primarily) strictly applying law, but on the basis of their feeling for justice, all on the basis of presented facts in a certain case. Although realists avoided to give a definition of law, it is characteristic for them to look upon law as a set of appropriate social facts, under what they mean the appropriate human behaviour (of judges above all), depending on ideas and standpoints having influence on that behaviour and which motivate it. 6 Permanent topic of realists is uncertainty of law, that is 4

Leiter avoids to speak about Scandinavian realism, referring to it as a ”relative”, which essentially differs from the American. He says that American realists were lawyers (including few scholars), and not philosophers, meaning that their field of interest was essentially different from that of Scandinavian colleagues. Common characteristics of two realisms, he finds in the fact that all of them shared the same intellectual culture of positivism, in terms of that in natural sciences they saw a paradigm for whole scientific ascertainment, so they also believed that social sciences, including law, would approximate methods of natural sciences. 5 Jerome Frank: Courts on Trial, Myth and Reality in American Justice, Princeton, New Jersey, 1973, item 225. 6 Almost all realists set from opinion formulated by Oliver Wendel Holmes in his text ”The Path of the Law”: ”Prospecting of what courts will do, and nothing more pretencious, is what I take for law.”

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why it is according to their opinion neccessary the explanation of judicial practice to be sought behind the law itself. In that attempt two wings of realism were distinguished – sociological 7 and idiosyncratic 8 . Followers of sociological wing believe that judicial adjucations, after all, fall under provident patterns, and that different social powers have influence on judges, as well as that they force them to look at the facts in a similar and predictable ways. Followers of idiosyncratic wing, first of all Jerome Frank, higlight that idiosyncratic facts about psychology and character of that judge influence the judge’s adjucation. Consequently ”if the personality of judge is the pivotal factorin law administration, then law may vary with the personality of the judge who happens to pass upon any given case.” 9 For ”the peculiar traits, disposition, biases and habits of the particular judge will, then, often determinate what he dicides to be the law”. 10

Frank’s Concept of Law In his works Frank exemplified reasons for avoiding to define law, and instead of that spoke that law does not consists of regulations at all, but only of total sum of individual adjucations. Nevertheless, at the beginning of his authorship, in a book Law and the Modern Mind, he states: ”we may now venture a rough definition of law from the point of view of the average man: For any particular lay person, the law, with respect to any particular set of facts, is a decision of court with respect to those facts so far as that decision affects that particular person. Until a court has passed on those facts no law on that subject is yet in existence. Prior to such a decision, the only law available is the opinion of lawyers as to the law relating to that person and to those facts. Such opinion is not actually law but only a guess as to what a court will decide. Law, then, as to any given situation is either (a) acual law, i.e., a past decision, as to that situation, or (b) probable law, i.e., a guess as to a future decision.” 11 Understanding a 7

The most typical members are: Llewellyn, Oliphant, Moore and Cohen The most characteristic members of that wing is Jerome Frank 9 Jerome Frank: Law and the Modern Mind, Brentano’s Publishers, New York, 1930, 111 10 Ibid, 111 11 J. Frank: Law and the Modern Mind, Brentano’s Publishers, New York, 1930, 46. In his work Courts on Trial... (1949), Frank says he will avoid to use the work law, and that he will ”instead talk (1) about what courts really do, (2) what courts should do, (3) if they do what they should be doing, and (4) if they should do what they should do”. 8

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mistake so early as the following year Frank disowns that definition in one of the texts 12 , and restores it later, this time speaking about statutory law, for what he says it means ”either (1) what a court has already ordered in a past law-suit relating to that specific man’s rights; or (2) – and this is the usual situation – what some court, somewhere, may order, some day in the future, in a specific law-suit relating to that man’s specific rights.” 13 Key role in the making of law is in the hands of the judge, who alludes to existing regulations and previous adjucations, but the ascertainment of the facts is not an objective work, and he does it depending on his psychological characteristics. They unwillfully rule over him, and in that case no truth or justice makes decisions but the characteristics of the judge. Having in mind that when making adjucations the judge makes the law, legal regulations are in that case only the means, which equal with other means, for according to Frank’s opinion ”all legal rules, principles, precepts, concepts. standards, – all generalized statements of law – are fictions.” 14 . Taking into consideration that psychological characteristics (specificities, prejudices etc.) have greater influence on judges than 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)Certainty Frank grounds his theory on the fact that uncertainty is myth, in which believe, even the lawyers and judges; that is why his work was directed toward discomfituring that basic myth, belief about legal uncertainty and legal certainty. Base of that myth Frank founds in child psychology and by analyzing the process of maturation, forming and socialization of personality, he gives an explanation how it reflects to the attitude toward law. So it is neccessary, in order to understand the reasons of various illusions grown-up persons have, to advert to developmental phases of childhood. Adopted habit of obedience (to authority) in childhood will, basicly, determine a relation of man toward various aspects of power, toward 12

J. Frank, Are Judges Human?, University of Pensilvania Review, 80, 1931 J. Frank, Courts on Trial, Myth and Reality in American Justice, Princeton, New Jersey, 1973, 9 14 J. Frank: Law and the Modern Mind, Brentano’s Publishers, New York, 1930, 167 13

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acceptance and fullfilment of orders, and form an attitude toward obeyance of moral and legal norms. Hence childhood is a period in which some of natural brakes and value structures are formed, what in future life makes a natural frame for obeyance of authority an law, customs considering necessity, forms those firsthand psychic relations which in future life force not only for obedience but for behaviour in accordance with law. 15 By growing, however it becomes aware that there exist unexpected and unpredictable phenomena which it cannot control and over which it cannot govern, and then appears fear from obscure in dark, unseen, unvisible and unknown. Then he seeks for help from his parents who stand between it and multiple dangers and unpredictabilities of life. Parents are almighty and knowledgeable. 16 ”If the child can no longer believe himself capable of controlling the universe, he can still believe that his parents do so – and for him.” 17 They hold things under control, know everything, and understand, regulate things and offer protection, know what is good, and what is bad, and establish order where conditions seems chaotic. Child still has almightness, but now representative, in that role now are his parents, over whom it restores power. Although mother represents familiarity, tenderness, help and understanding to which a child can always return, Frank says, and alludes to writting of Malinovski, 18 that father is the one having a role of final arbiter, posessing strength and authority and who at times from the role of tender and protective friend, transforms and accepts a position of stern judge and firm executor of law. By maturation a childconfronts with knowledge that the father is not almighty and knowledgeable as he has appeared up to then, again there arises fear and uncertainty, as well as the need for proximity of someone who could be a substitute for a father. In the role of a substitute there appear: prists, judges, leaders in a group... but they are not almighty, they dissapoint a child, while the need for father authority remains. Inasmuch even by grown-ups there is a necessity for safety, in that role appears the law. Naive belief of the child in

15

Kartag-Odri A.: Stvaranje i primena prava – pravno psihološki aspekti, Stvaranje prava, Treći skup Jugoslovenskog udruženja za teoriju, filozofiju i sociologiju prava, Miločer, 2425 September , 1999; Memoir edited by D. Mitrovcić, Beograd, 2000 16 J. Frank: Law and the Modern Mind, Brentano’s Publishers, New York, 1930, 13 17 Ibid, 14 18 Ibid, 15

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almightiness of the father to overcome chaos and dangers of the world, now becomesbelief, that arises in a myth, that it is achievable through legal system, through its authority, determiness and predictability. Nevertheless, according to Frank’s opinion this is not the only, neither the complete explanation of basic myth about absoluteness, safety and predictability of the law, because there are other factors which have influence. People have not abandoned a childish need for authoritative father, and the features once attributed to him, such as determiness, safety, certainty and impeccability, unconsciously try to find in law. Because, ”society is made up of persons all of whom now are, or recently were, children.” 19 That psychological need for safety is the most important factor of the concept of law, which is neither safe, nor determined, nor predictable, but we believe it to be such, because of psychological need for determiness and safety, i.e., we expect the law to be such. At the beginning a society was childish , because human mind was unmatured, where magic prevailed. Now, instead of magic words advocated by primitive man, modern childish man calls for legal rules or some other uniformity which leads to uniformity in judicial rules. 20 However, Frank says ”modern civilization demandes a mind free of father-governance. To remain father-governed un adult years is peduliarly the modern sin. The modern mind is a mind free of childish emotional drags, a mature mind. And law, if it is to meet the needs of modern civilization must adapt itself to the modern mind. It must cease to embody a philosophy opposed to change. It must become avowedly pragmatic. Ro this end there must be developed a recognition and elimination of the carry-over of the childish dread of, and respect for, paternal omnipotence; that dread and respect are powerful strongholds of resistance to change. Until we become thoroughly cognizant of, and cease to be controlled by, the image of the father hidden away in the authority of the law, we shall not reach that first step in the civilized administration of justice, the recognition that man is not made for the law, but that law is made by and for men.” 21

19

J. Frank: Law and the Modern Mind, Brentano’s Publishers, New York, 1930, 20 Aleksandar Molnar: Društvo i pravo. Istorija klasičnih sociološkopravnih teorija, I-II, Novi Sad, 1994, Volume 1, 248 21 J. Frank: Law and the Modern Mind, Brentano’s Publishers, New York, 1930, 252 20

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Making of the Law According to Frank, law is made at court, that is it is made by judge . 22 Traditional theory explored what judges do at higher courts , that is too narrow for considering the problem, because they neglect what really is happening at other, lower courts, as well as the fact how the actual relation between parties in a process looks like. Besides, not only legal rules are those that decide on final adjucation, but the judge, and that decision depends on his personality. 23 Frank does not deny that, nevertheless, there exist legal norms and that they are one of the sources of law, but observes there are two ”legislatives” (legislative and judicial), 24 while besides rules made and verified by parliament, court also takes part in making the law. Like the legislation by applying legal regulations governs opposed interests, that is the way a judge behaves when making rules made by judge. 25 Legal norms, according to Frank, regardless of the fact if they are comprised in laws, precedents, or other legal regulations, stay only empty words, because content and life was given by court when solving litigation in dispute. About legislation he spoke without sympathies: ”here, the judges felt, is a stable body of rules which create legal certainty. We, ourselves, seldom change any of them, and then only after the most careful consideration. But, the legislature makes new rules, frequently without adequate consideration, which upset legal certainty. The legislatures do their work capriciously, superficially, on the basis of the limited subjective impressions of a few members of a legislative comittee. Why should we greatly repect such shoddy products?” 26 Frank says for himself he is a reformist, he sees mistakes in which American judiciary falled into, but that he has no illusions regarding the fact that law proceedings can be made perfect. 27 As he wrote during turbulent events in America, he was witness of agony of judiciary, which found itself at stroke of social events and its conservative judges (from High Court). All that influenced Frank in his postulate of law to see it as a battle, and in connection with that ”litigation is a kind of 22

Ibid, 126 See: Jes Bjarup: Rättsteori och rättordning, Stockholm, 2004, 164 24 J. Frank: Courts on Trial, Myth and Reality in American Justice, Princeton, New Jersey, 1973, 262 25 Ibid, 265 26 J. Frank: Courts on Trial, Myth and Reality in American Justice, Princeton, New Jersey, 1973, 292 27 Ibid, 2 23

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fight or battle”, that is being on at court in front of and under the control of the judge. Going to court for decision is a civilisation wellfare, for it represents substitute for private war. The winner from that battle gains legal rights, and smitten legal duties. ”What ’rights’ and ’duties’ meant, in such circumstances, you can surmise by watching gangsters in conflict.” 28 That is how individual characteristics of judges come to expression, their sympathies or antipathies toward witnesses, lawyers or parties in dispute, while ”his own past may have created plus or minus reactions to women, or blonde women, or men with breards, or Southerners, or Italians, or Englishmen, or plumbers, or ministers, or college graduates, or Democrats.” 29 But, even a certain type of pronounciation, coughing or gestures, as well as any other type of behaviour, could by judge induce positive or negative rememberance in his consciousness, that can be determinant, when making decisions in a process. Frank explains that in a following way: ”Conventional theory” believes that ”Rule plus Facts = Decision”, while his attitude that ”Inducements having influence upon judges” plus ”Character of the judge = Decision”. 30 From frojdisms, that had the largest influence on Frank’s theory, and according which the key of the character lies in buried depths of unconscious, ensues it is in vain giving judges normative advices, i.e., telling them they should do it other way. That is why the prediction od judge’s decision is mostly impossible. Wish of the lawyers and citizens to think differently only images infantile wish for reliability and security and returns to basic myth.

Appliance of Law and Enlargement of Its Uncertainty Legal uncertainty comes to even larger expression when facts are being established through a witness, because testimony of the witness is always under the influence of his experience, personal characteristics and prejudices, and is often selective. Testification becomes less reliable, even by most sincere witnesses,

28

J. Frank: Courts on Trial, Myth and Reality in American Justice, Princeton, New Jersey, 1973, 8 29 J. Frank: Law and the Modern Mind, Brentano’s Publishers, New York, 1930, 106 30 J. Frank: Are Judges Human? University of Pennsylvania Review, 80, 1931, 242

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with passing of time from the events for which facts are being established. 31 Many witnesses feel unconveniently in that role at court, and under psychical stress their testimony is not reliable. 32 Judge is as historian, while the event that came into court happened in the past and a judge ascertains facts post festum, during which there occur testimonies of witnesses between him and those events. Wintesses do not reproduce mechanically what they saw, heard or experienced, but they subjectively speak about the facts concerning the event. Hence, it is neccessary for the judges to know well not only the law, but psychology as well. 33 While ”primitive man could say that legal rights were on the knees of the gods. We must say that they are on the knees of men – of the trial judges or the juries.” 34 That is where we come to another myth of American judiciary -jury, its role in the individualisation of punishment and legal certainty. According to official or naive theory, says Frank, when a certain case is being discussed in front of the judge and jury, roles are clearly defined, in a way that a judge applies law, while jury is left to validate facts and what the judge proclaims for law, must be accepted by jury as totaly authoritative. 35 But in practice it is shown that it is not the case, while after proofs are heard, the judge gives jury, ”instruction about the law”, explaining what legal consequences are if jury decides for one or the other facts. In that way the jury , deciding about facts, applies law. As a consequence it happens that on one side decisions are being made by average people, laymen for law, which have their concept, and on the other hand, they need not explain that decisions. According to the theory favoured by realists, says Frank, in many cases, jury without paying attention to legal rules, sets down not ”facts”, but corresponding legal rights and duties of the parties in a process. 36 From that ensues that instead of judicial law, we have law made by jury, what leads to total unpredictability and uncertainty of the outcome of adjucation and law in which jury takes part. 37 So decisions in 31

J. Frank: Courts on Trial, Myth and Reality in American Justice, Princeton, New Jersey, 1973, 17 item 32 J. Frank: Law and the Modern Mind, Brentano’s Publishers, New York, 1930, item 206 33 Ibid, 147 34 J. Frank: Courts on Trial, Myth and Reality in American Justice,Princeton, New Jersey, 1973, 50 35 J. Frank: Law and the Modern Mind, Brentano’s Publishers, New York, 1930, 170 36 J. Frank, Courts on Trial, Myth and Reality in American Justice, Princeton, New Jersey, 1973, 111 37 J. Frank: Law and the Modern Mind, Brentano’s Publishers, New York, 1930, 173

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many cases are instead of judges, being made by a dozen of uncompetent laymen, full of caprice and prejudices. 38 Final Considerations Frank and the American Legal Realism were at the stroke of criticism that they disregarded the ethical aspect of law and its relevance to morality. Frank in his answer to criticisms, tried to insert natural-law elements in his theory explaining that by words ”I do not understand how any decent man today can refuse to accept, as a corner-stone of modern civilisation, the basic principles of Natural law, concerning human behaviour, as it is stated by Thomas Aquinas.” 39 That attempt of insertion of natural-law elements in his theoretical postulate, was Frank’s defence of realism and his scepticism, from attacks that followed, which were sharpest exactly from followers of natural-law standpoint at chatolic universities. The most radical in that was Francis Lucey, 40 who, speaking at a meeting in March 1941 in Washington, identified Nazi philosophy with realism, utilitarism and pragmatism, and highlighted that ”Hitler’s utilitarism and pragmatism is very alike Holmes’ philosophy”. 41 He believed that legal realism abolishes all values of democracy and by its scepticism can generate only confusion, splitting, fear and desperation, playground in each nation for demagogues, sofists and dictators. 42 Frank did not have a firm empirical backing for his standpoint, (e.g.: on foreboding based decision-making and the role of personal element), 43 so it was objected by his colleagues, followers of so-called sociological wing of legal realism, who highlighted that Frank’s assumptions were not reliable, accepting predictability of many things courts do. So Lewellyn, the most prominent 38

Ibid, 177 J. Frank, Law and Modern Mind, Garden City, New York: Anchor Books, 1963, p. xvii, cited: J. Bjarup: Rättsteori och rättordning, Stockholm, 2004, 164 40 Lucey was a member of management body at Faculty of Law in Georgetown and professor of philosophy and jurisprudence 41 See: George J. Marlin THE POLITICIAN’S GUIDE to Assisted Suicide, Cloning, and Other Current Controversies, on site: http//www.ewtn.com/library/HUMANITY/PGUIDE.HTM 42 See: George J. Marlin THE POLITICIAN’S GUIDE to Assisted Suicide, Cloning, and Other Current Controversies, on site: http:/www.ewtn.com/library/HUMANITY/PGUIDE.HTM 43 Brian Leiter: American Legal Realism, The University of Texas School of Law, Public Law and Legal Theory Research Paper No. 042, October 2002, 19 39

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follower of realism besides Frank, did not miss the opportunity to make a critical comment, saying that in his aiming to unveil the illusion of legal certainty and predictability, Frank made the illusion more illusive than it really was. 44 Although Frank’s scepticism was not totally accorded to experience in practice, since, after all, most attorneys manage to advise their clients about probable outcome of litigation, often Frank’s concept was taken for determining standpoints of the followers of realism movement. In order to understate the significance and role of Frank in American jurisprudence critics of realism contrived a legend about the fact that acccording to his assumption ”judge’s decision can depend on what the judge had for breakfast”. 45 Against realism reacted not only scholars in America, political opposers, jurists (professors) at chatolic univerisites, but also theoreticians in Europe. By criticising Frank’s theory, Gurvic says it is ”enough to say that no kind of individual psychology is generally, able to make a contact with problems of law as phenomenon which, in fact, is a collective experience and which is related to social whole.” 46 Upon deficiency of Frank’s theory, and standpoint about certainty of law as a myth, pointed out Norberto Bobio, highlighting ”that advocacy for the certainty of law is not new, but it is a new way in which the author explains his idea, new is the extermism of Frank who considerations about certainty brings to absurd results”. 47 However, with his theory Jerome Frank not only opened paths toward study of real social relations, that are being established among court, witnesses, jury, attorneys, clients in litigation, judges, but also disenchanted the myth of traditional theory, according to which judges are only executors of the law. Jerome Frank and legal realists with their belief in legal uncertainty, with their advocacy for an interdisciplinary approach during the study of what really is happening when judge’s decisions are being made (to what extent subjective and objective factors influence the making of the law), by their belief in legal instrumentalism, they opened doors to several theoretical tendencies. ”Spirit of realism” made immeasurable impact in American legal theory and political sciences of the 20th century, since not only realists and their ideas

44

A. Molnar: Društvo i pravo. Istorija klasičnih sociološkopravnih teorija, I-II, Visio Mundi/ Academic Press, Novi Sad, 1994, Book 1, 251 45 See: Legal realism, http://www.absoluteastronomy.com/encyclopedia/L/le/legal_realism.htm 46 Žorž Gurvič: Sociologija prava, CID, Podgorica, 1997, 165 47 See: Vukadinović G., Stepanov R.: Teorija prava I, (Theory of Law), Petrovaradin, 2001, 227

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were popular, 48 but from realism there emerged many schools and movements in American jurisprudence such as: critical legal studies, (movement of critical legal studies, whose characteristic representatives are: Duncan Kennedy, Umberto Unger...), law and economics (law and economy, in the beginning known as economic analysis of law, with Richard Posner and Richard Epstein as its main representatives), feminist legal theory, critical race studies, and they also had influence on political sciences. Getting off a norm from throne, negating the very normative nature of law, unclosing old myths, Frank made a new myth – myth about total irationality of law, and raised a question about the very significance of norm as such. Since, ”uncertainty, in short, according to realists, does not ensues from the rules themselves, but from the ways in which we characterize what legal rules and precedents comprise.” 49 To what extent the real interpretation and appliance of law is essential, testifies Frank’s comparison of law with music, claiming that ”legislation is like a composer. It cannot help itself. It must hand over the interpretation to others, primarily to courts”. 50 Therefore, in case we would like in short to give evaluation of Frank’s work it should be said that he combined Freud’s psychoanalysis with legal analyses in order to create a sceptical, reform-oriented theory, that minimized a role of a precedent in a legal system, while he represented and supported the standpoint judges should have all the freedom.

48

Famous is the statement: ”It’s a bona fide conviction that ”we are all [legal] realists now” B. Leiter: American Legal Realism, The University of Texas School of Law, Public Law and Legal Theory Research paper No. 042, October 2002, 19 50 J. N. Frank, Words and Music: Some Remarks on Statutory Interpretation, 47 colum. L. Rev. 1259, 1264 (1947.) 49

7 Prof. Miloš Marjanović, PhD Faculty of Law, Novi Sad, Serbia

ROSCOE POUND’S SOCIOLOGICAL JURISPRUDENCE FROM THE EUROPEAN CONTINENTAL PERSPECTIVE (review of reception and criticism in Serbian)

Abstract: Pound’s significance as a lawyer, his voluminous and monumental work as well as the major role he played in American sociological jurisprudence had been amply complimented, mostly in superlatives: the greatest American lawyer, the most interesting legal writer and one of the leading generalists on the whole, an encyclopedic monster of knowledge, the greatest American sociologist of law, an undisputed leader or the synonym of sociological jurisprudence... Pound’s sociological jurisprudence represents an attempt of American legal thinking to keep pace with European sociolegal theoretical tradition, but with a dominant influence of American pragmatism and the Chicago School of Sociology, trying to find practical, reformative solutions for the transformational problems of the American society and law. To Pound sociological jurisprudence is more a skill or a technique of legal and social engineering, whereas philosophy of law and sociology of law are a theoretical and rational basis of critical analysis and empirical generalization. However, there are European studies involved in sociology of law which do not even mention Pound, or present scarce, imprecise or even wrong information on him. There are plenty of critical observations, the most significant of which are: the equation of sociology of law with sociological jurisprudence, narrowing of its subject of study to state law and practical tasks, insufficient theoretical and sociological foundation of his points of view, excessive legal normativization of social control, undeveloped key concepts of civilization, reason and ideas of paradigmatic rationalizing role

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of law in a society. The paper also indicates newer criticism, according to which Pound’s influence grows weaker and loses importance, while the reputation of legal realism of Llewellyn rises. Key words: Gurvitch, Carbonnier, Molnar, Inđić, Stanković, Vukadinović and Stepanov, Vračar, Vrban and Čokrevski on Pound. After The Introduction to the Theory of Law (Podgorica 1996), Roscoe Pound’s capital five-volume work Jurisprudence was translated into Serbian (Beograd – Podgorica 2000, vol. I-III). These translations, which are the pride of very few legal cultures in the world, have created the environment for a wider professional reception and a more thorough and systematic critical analysis in the Serbian language. Before anything else, it would be useful to summarize the criticism of Pound’s work in Serbian (prior to the aforementioned translation of Jurisprudence) and partially in Croatian, Macedonian and Romanian, which is also the aim of this paper. This criticism also includes the perspective of French sociology of law because Gurvitch’s Sociology of Law and Carbonnier’s Sociologie juridique were translated in Serbian in 1997 and 1992 respectively. Roscoe Pound and Georges Gurvitch have treated each other with respect and high esteem. Pound, however, is cheap on compliments while Gurvitch is more analytical. Namely, in the preface to the English edition of Gurvitch’s Sociology of Law (1953, second edition), Pound praises Gurvitch as a ”respectable representative of modern sociology” 1 and commends him for ”criticizing sociological jurisprudence”. He also stresses Gurvitch’s truly good analysis of the relationship between jurisprudence on the one hand and philosophy and sociology of law on the other, which are, according to Pound, the basis for criticism and specialized generalizations in jurisprudence. Gurvitch is also complimented for ”a meticulous review of work of the predecessors and founders of sociology of law” (Paund 2000, I: 181), but was criticized for equating law with the total social control (p. 155, 394–395). In his Sociology of Law (Gurvič 1997: 22, 31), the author says that Pound and Cardozo have criticized analytical jurisprudence in a ”brilliant and 1

All quotations in the paper have been translated from Serbian, including the Serbian translation of Gurvitch’s book from English (Sociology of Law, London, 1953).

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

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”one quite accurate definition of goals and methods of sociology of law” (p. 155). Even later he remains true to his initial equating of sociology of law and jurisprudence as a legal skill or technique. He ascribes to sociology of law practical goals and makes it into a teleological discipline, failing to see that its realistic judgments are independent of goals and predictions of jurisprudence. Furthermore, even sociologically, law can be dealt with only teleologically, not deterministically, because legal phenomena are explained in terms of purpose, not in terms of cause. In the same vein, he does not differentiate between philosophical reflection and sociological description, which causes a certain confusion in the relation of value judgments and realistic assessments. This is further enhanced by the fact that, in discussing ideal elements of law, he does not make a clear difference between legal and moral values. More precisely, he shifts law and legislation towards a moral ideal. This dogmatization and moralization jeopardize sociological methods in law. The result of this teleological orientation is an understanding that the state is necessarily and a priori more important than all other groups in the society so, in all civilized societies, legal order is equated with social order. He neglects special groups (except when he talks about social interests), losing sight of the fact that each group has its own order, legal frame and legal values, whereas the state is just one special group with a special order. Because of this supremacy of state order, he fails to see problems of microsociology of law and differential legal typology of individual groups, which Gurvitch, in his own understanding of social law, particularly insists on. Despite these borderlines of relativism and functionalism, he concludes that Roscoe Pound’s sociology of law is ”delicate and rich” (pp. 155–157). Presenting the classics of sociology of law in the 20th century, Jean Carbonnier (1992: 108) unjustifiably treats the school of sociological jurisprudence as a version of American (legal) realism, and just a few pages later (p. 111) he examines realistic thought within the framework of the school of sociological jurisprudence. He goes on to say that Roscoe Pound is considered the founder of this school and that he taught law at Harvard, but its most famous followers were Holmes, Cardozo and Brandeis, judges of the Supreme Court. The work of this school indicates the connection of law with other social phenomena. Its most original contribution – placing law in social control as a more general sociological category – has never been accepted

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outside America because it is actually a mild version of social coercion. For Pound law is the main and most perfect instrument of social control, which leads Carbonnier to conclude that a lawyer surfaces under a sociologist, in which he follows Gurvitch’s idea that Pound cannot fully be a sociologist in his understanding of social control (pp. 109–111). In Carbonnier’s very concise analysis there are a few inaccuracies and imprecisions. Although he himself realizes (p. 111) that ”sociological jurisprudence does not completely coincide with legal realism” and that this relationship is nuanced, he is still in favor of basically equating them, taking turns of choosing each direction as more general. Many other authors, some of which are mentioned and considered here, do not share his point of view. Gurvitch (p. 162) stresses that legal realism or neorealistic school is a sharp reaction to an extremely teleological and moralizing orientation of sociological jurisprudence. Duško Vrban (2006: 35) quotes W. Twilning, according to whom in the 1960’s there was a shift in the assessment of Pound and legal realist Llewellyn, as pioneers of American legal thinking – the reputation of the former was completely overshadowed by the rising star of the latter. Similarly, in the literature analyzed in this paper, there is no attitude that Holmes and Cardozo were Pound’s followers or students. Oliver Wendell Holmes belongs to a preparatory phase of the development of sociology of law in the USA and he has, according to Aaronson, given the signal for the ”sociological revolt in jurisprudence” (Gurvič 1997: 149). Holmes was the first to open new paths in American legal thinking and Pound was the first who put them into action, made use of them and taught them to others (Inđić 1996: 34). Holmes had a founding role in the American stream of legal realism and sociological jurisprudence (Molnar 1994: 234). Both Pound and legal realists, as representatives of both sociological directions in American legal thinking, appealed to Holmes, who insisted that lawyers should study social reality as it is done in other social sciences, that the life of law is in experience and not in logic and that law is actually a prediction of what judges will do (Vrban 2006: 28–29). From the already mentioned Gurvitch’s work (pp. 157–162) one does not get the impression that Cardozo is Pound’s follower or student, but just one of the ”prominent representatives of sociological jurisprudence”. Aleksandar Molnar (1994: 242–243), on the other hand, classifies Cardozo as a legal realist. Finally, since Pound does not have one

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single key idea or theory which could be used to ”compare the rest of his rich and primarily elaborate and inspiring work”, it is almost impossible to talk about a ”Pound” school of jurisprudence. The school of American legal realism, which Pound was ”at war” with, transformed sociological jurisprudence into research work (Inđić 1996: 33). What follows is the review of the reception and criticism of sociologists of law from Serbia, chronologically as they appeared. In his extremely critically oriented review, with the title which suggests the basic direction of analysis, ”Court Postulates of Civilization and Modern Society: Roscoe Pound”, Aleksandar Molnar (1994: 234–242) primarily relies on English and American authors (Morrison, Reuschlein, Carpenter, Hunt, Cotterell (?) (Cotterrell), Lasswell, McDougal, Schur, E. Ross). Pound’s sociological jurisprudence is an attempt to keep up with European sociolegal theory, trying to explain changes in the American society and law. It moves between the superseded analytical jurisprudence and increasingly influential legal realism, although Pound equates them to a large extent, Molnar claims. Relying on Bentham’s utilitarianism, Pound chooses moderate reformism, stressing the civilizing influence on the activity of judges. He is most acclaimed for his program dichotomy ”law in books” and ”law in action”, or state (positive) and social law, but the theoretical implications have never been clarified. ”Law in action” was replaced by ”jural postulates of civilization” and then by a classically understood natural law. Pound’s early program work from the first decade of the 20th century was based on new sociological ideas and from that point of view individualistic philosophy and analytical jurisprudence were criticized in American legal science. However, all that criticism remains general and the concepts used more and more speculative, a priori and indeterminate. The extremes of radical individualism are surpassed by the socialization of law on feudal traditions of common law, which is where modern law takes the idea of cooperation that, along with free individual initiative, establishes the civilization. His sociological jurisprudence at first programmatically opposes conservative lawyers who were only interested in traditional legal justice, not in the attitudes of modern public opinion on social justice. In time, Pound becomes increasingly more focused on what characterizes professional law, which is, from European perspective, just one area of sociology of law. He also narrows down its subject by

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understanding it only as an applied, not theoretical discipline and because, from that perspective, it is interested only in influences and functions of law in social life and not in influences of society to law, which is the reason why social nature of law is not seen in its totality. Molnar accepts Hunt’s criticism of Pound’s excessive inclination towards classifications, in which principium divisionis is often not clearly determined and which remains partial and theoretically unfounded. Using the example of typology of interest (individual, public and social), he shows that it is not clear which social group determines the most important or ”the most difficult” interest of civilization which law should protect and help realize. Under the influence of Kohler’s philosophy of law he takes over the concept of civilization from the arsenal of new age enlightenment, determining it as control over the interior and exterior nature with the aim to perfect human resources, but that determination remains generalized. Judicial postulates of civilization, concretized in modern society, are not legal rules but professional ideas which should be realized through legal institutions and regulations. They initiate the creation of judge-made law but without any deeper connection to a wider society. The correspondence between judicial postulates of a civilized society and the needs of social reality is not experiential, but a priori based. Courts are the primary driving force of the progress of civilization and in this typically American affinity they glorify judicial justice and give little weight to legislative one. From his friend Edward Ross Pound takes over the concept of social control and normatizes it, but unlike him, he does not inquire after the undesirable effects of political social control because it is a priori socially functional and can be corrupted only in extreme cases (slavery, class exploitation, racial intolerance). He also does not even consider the thought that repression can be closely knit with the progress of civilization. Social engineering of law, as a technocratic term for improvement of control, improves the functionality of society. What is socially functional is the decision of reason, but Pound does not clearly define this concept anywhere. Evolutionary postulate on continuous historical development of rationality until perfection in a modern society is an axiom which is either accepted or rejected, while the theory of rationalizing social role of law is developed elsewhere, primarily in Germany.

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In an extremely studious preface to the Montenegrin edition of Pound’s Introduction to Philosophy of Law entitled ”Pound Pleading for the Philosophy of Law”, Trivo Inđić (1996: 7–34) has almost no critical observations. Roscoe Pound (1870–1964) is the ”greatest descendant” and the ”synonym” of the Harvard Law School, ”the greatest American lawyer and one of the leading generalists on the whole”, a representative American lawyer who, due to the breadth of his knowledge and his learnedness, was called ”the monster of knowledge”, ”synthesis of all philosophies” and the lawyer who ”knows everything.” In ex Yugoslavia Natko Katičić (1937) diverted everyone’s attention to Pound, saying that he was ”the most renowned of all living American writers and surely the most interesting of all legal writers on the whole.” He is a prominent, capable and determined representative who marks the beginning of the sociological stream in American jurisprudence. He acquired significant practical experience when in 1901 he became the youngest member of the Nebraska Supreme Court Commission, which helped close many long overdue court cases. This is where he composed 103 court opinions which marked his inaugural speech given when he was elected Dean of Nebraska College of Law in 1903. He was one of the four bearers of the title University Professorship in the 300 year history of Harvard, which gave him the right to teach any subject at any college of this university. He was invited to come to the Chicago University, where he stayed from 1907 to 1910 and where he ”formulated the systematic criticism of American law, its traditionalism and inefficiency” connected to the philosophy of social Darwinism of the 19th century and preindustrial society. This criticism of ”mechanical jurisprudence” or ”jurisprudence of concepts” turned him towards reforms, which he was particularly persistent at, and directed him towards philosophy of law. There he speaks in favor of pragmatic, sociological science of law, so he becomes the synonym of sociological jurisprudence as a movement for pragmatism in philosophy of law, for the adjustment of legal principles and doctrines to the needs of people, who were central, while legal logic was just an instrument there. ”Accomplishing such a wide and deep insight into law and various legal traditions, opening American jurisprudence to the latest legal schools of the European science, making rich legal practice as a lawyer, judge and researcher... Pound was truly ready to start writing philosophy of law” (p. 25).

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Only a lawyer with such universal capabilities could speak of philosophy from the Anglo–American tradition of common law, but one should bear in mind that he always relied on the universal tradition of legal thinking, thus opening American thought to the ideas of European law. Roscoe Pound was, therefore, able to ”think philosophically and establish law as an instrument of social dynamics”, placing its functions and goal in a wider social and historical context, offering ”theoretical justification for enormous social and economic legislation” in the 20th century, thus making sure that courts acknowledge the interdependence of law and social sciences. With a huge production of over a thousand published references and a monumental five-volume work Jurisprudence (1959) on over 4000 pages, he was the leader of American jurisprudence of the 20th century. He also rehabilitated philosophy of law and established a modern school of sociological jurisprudence in the USA. Therefore, even those who ”today diminish Pound’s influence and prophetic voice in the science of law stand on his shoulders” (p. 34). In volume 3 of Foundations of General Sociology of Law, which is about the application of law, Jugoslav Stanković (2000: 140–154) has a chapter entitled ”Roscoe Pound – changing the society with law”, which indicates the focus of his reception. Pound’s understanding of law as an instrument of social change or efficient tool of social dynamics was heavily stressed by Trivo Inđić (1996: 26–29, 32) and Cotterrell (1984: 54–57) before him. Cotterrell also points out the limit of effective legal action, while Stanković stresses that Roscoe Pound is one of the most important representatives of sociological jurisprudence. He understands law as social engineering, not as a narrow legal activity. That is why in legal theory, practice and education there should be essential changes and reforms to turn law towards social sciences and accomplishing justice as its practical goal. Stanković scrutinizes over Pound’s criticism of the dominant individualistic doctrine and his understanding of the development of law in five phases towards the basic goal that law should have accomplished as a criterion. He also analyzes theory and classification of interest as an explanation of legal phenomenon. An objective scientific analysis seriously jeopardizes his subject-oriented theoretical attitude. The basic tasks of sociological jurisprudence is the most efficient application of law possible, which is the way to achieve important civilization values.

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Additionally, he discusses the concept of civilization and its seven postulates relying on Molnar but interpreting differently two new or last postulates. These attempts enable efficient social control by the means of law, so Stanković deliberates social control and five limitations to the application of law. He concludes that Pound’s huge merit is introducing sociology into the American legal science, but he adds that Pound’s study is incomplete because it does not encompass objective influences of social characteristics on law as well. In the textbook Theory of Law I (2001), in the chapter on legal sociology (pp. 97–122), Gordana Vukadinović and Radivoj Stepanov portray its founders and representatives and discuss Oliver Wendell Holmes, Benjamin Cardozo and Roscoe Pound (pp. 117–118), who they consider to be one of the most important American founders and representative of sociology of law. This book reinterprets Molnar’s reception of Pound’s sociological jurisprudence as American theory of law keeping pace with European sociolegal tradition. It also considers three elements of law and seven postulates of civilization, but it omits his critical observations. In the Introduction to Philosophy of Law (2004) in the chapter ”Roscoe Pound: American Legal Philosophy and Sociological Jurisprudence” (pp. 64–76), the same authors significantly rely on Trivo Inđić’s preface, but also themselves analyze to a large extent some basic ideas from Pound’s Introduction to Philosophy of Law (1996) and from the first volume of his Jurisprudence (2000). They stress that Pound’s reputation is considerable both in legal science and in legal thinking. Pound’s creative theoretical and practical involvement is directed at the affirmation of philosophy of law and jurisprudence. His capital works are listed here, with original and translated titles, but without places and years of publication. To Pound philosophy is a powerful instrument of legal arsenal which totally explains social control and offers rational explanations for law. Vukadinović and Stepanov mention basic questions (chapters) of Pound’s Introduction to Philosophy of Law and discuss 12 concepts on the nature of law, which Pound analyzes in his book, including common elements in all of them. The authors stress that in his research Pound emphasizes social philosophical schools and sociological jurisprudence and in that respect he significantly contributes to the American sociology of legal system, which is briefly analyzed and referred to in volume I of Pound’s Jurisprudence. The authors conclude that Roscoe Pound ”represents

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

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argumented. Although it is implicitly noticed by other authors, Gurvitch especially, Vračar explicitly discusses three phases in Pound’s work – youth, maturity and old age, or program, monograph and balance phases. He notices the difference between law in books and law in action and speaks in favor of legal facticism. He avoids the discussion on the relationship between law and the state, but, while arguing about Masonic jurisprudence, he turns the science towards the secret sphere of social life. He concludes that Pound is an extraordinary personality with the most brilliant legal carrier in the USA and even wider and adds that Pound was mainly involved in common law as the most convenient form of regulating social life and a basis for connecting positive and natural law. He accuses Pound of giving neither preface nor conclusion to his Jurisprudence, but stresses that his life work is a colossal, praiseworthy, successful and impressive monument to himself but to jurisprudence as well. At the end of this paper I shall briefly deal with some papers in Romanian, Croatian and Macedonian, which do or do not consider Pound’s work and understanding of sociological jurisprudence. Romanian sociologist Mihail Cernea in his book American Sociology (1974) mentions sociology of law as one of 36 sections of the American Sociological Association. However, not only does he not analyze American jurisprudence, in fact he does not mention it at all. Neither does another Romanian sociologist, Achim Mihu, in a book where it might be expected – Sociology of Law (1996), which comes as a surprise since one whole chapter of this book is dedicated to the founders of jurisprudence (Weber, Gurvitch, Geiger, Treves) and another to social control. Pound is not mentioned in the name register by Eugen Pusić, Professor of the Faculty of Law in Zagreb in his book Social Regulation (1989), although in the chapter ”History and Development of Social Science” he discusses in detail Marx, Durkheim, Weber, Luhman and Habermas. However, another Croatian author, Duško Vrban, in his book Sociology of Law (2006), devotes the whole third chapter to theory of law and sociological jurisprudence in America (pp. 28–37). After a very vivid review of social and cultural conditions in which these disciplines developed in the USA, based on newer works in English, at the end of the chapter (pp. 34–37) the author turns to Pound’s sociological orientation in legal thinking and says he was its undisputed leader and that his reputation far surpasses the American cultural circle. He thinks that Pound’s greatest merit is insisting on studying

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law in a social context. According to Vrban, Pound differentiates between sociological jurisprudence as a special technique of the sociological approach to law and the sociology of law as a primarily theoretical discipline. In evaluating Pound’s work Vrban mostly acquires the criticism of Alan Hunt, according to whom Pound’s work was a precondition for the sociological study of law, but his support of sociological jurisprudence did not result in an adequate theoretical basis. Vrban underlines that ”according to later commentators, Pound’s contribution to theory and sociology of law is not particularly important and his approach to sociological study of law remains rough, i.e. in the scope of essayistic critical questioning” (p. 35). After a brief comment on some of Pound’s bio–bibliographic data, ideas and categories (social engineering, interests, social control), the review ends with a shorter and slightly modified Hunt’s scheme of legal revolution from Pound’s Jurisprudence. Macedonian author Tomislav Čokrevski in his Sociology of Law (2001) has a separate chapter where he discusses the development of sociology of law in different countries, primarily the USA (pp. 104–106). He claims that in the USA, especially after 1950, empirical sociology of law developed to a great extent while, according to American sociologists themselves, there were no great achievements. While in the USA in the 19th century analytic and historical jurisprudence dominated the scene, in the first half of the 20th century sociological jurisprudence, legal realism and philosophy of law developed. In a short paragraph Čokrevski summarizes Pound, Ross, Holmes and Cardozo, but Pound has as much space as others put together. In conclusion it can be said that there are two opposite types of analysis of Pound’s work and his sociological jurisprudence. Gurvitch’s and Inđić’s analyses are particularly affirmative, studious, layered and nuanced; Inđić’s analysis has almost no critical observation, while Gurvitch’s does. On the other side there is Molnar’s nuanced and differentiated, but expressly critical analysis which contains almost no affirmative elements. Vračar’s afterword is closer to Gurvitch’s analysis, while the reviews of Stanković as well as Vukadinović and Stepanov are closer to the analysis of Inđić’s type. Vrban’s review is closer to the analysis of Molnar, but it also contains some affirmative and many descriptive or analytically ”neutral” elements, which is also characteristic of Stanković as well as Vukadinović and Stepanov. Čokrevski’s

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

III The Morality of Law

1 Prof. Dragan M. Mitrović, PhD Faculty of Law, Belgrade, Serbia Lon Fuller’s Legal Philosophy on the Morality of Law in View of His Opponents and Advocates 2 Marko Božić, Assistant Faculty of Law, Novi Sad, Serbia John Finnis, the Heir of the Aquinian Natural Law Tradition 3 Marko Trajković, LL.M, Assistant Faculty of Law, Niš, Serbia Richard A. Posner: The Problematics of Moral and Legal Theory 4 Prof. Danijela Grujić Novi Sad, Serbia For the Love of One’s Country and the World

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1 Prof. Dragan M. Mitrović, PhD Faculty od Law, Belgrade, Serbia

LON FULLER’S LEGAL PHILOSOPHY ON THE MORALITY OF LAW IN VIEW OF HIS OPPONENTS AND ADVOCATES Abstract: Lon Fuller developed his procedural natural law philosophy in an effort to overcome the breach between positivism and iusnaturalism. His efforts have been seen in different lights. However, it does not mean that Fuller’s contribution to legal theory is in any way modest, as certain jurists of today would like to think. It is even less possible to claim that each discussion on the form of law is completely devoid of moral judgement. And that more than suffices for Fuller’s contribution to legal philosophy and theory to fare much better when it comes to overall assessment. What still attracts much attraction today in Fuller’s teachings is that it offers a choice to mankind! And although law is the prerequisite of good law, legal rules themselves are not sufficient. The morality is needed, since it makes law possible. Key words: Lon Fuller, Law, Natural law, Moral, Morality.

I Lon L. Fuller (1902-1978) ranks among the very few of those great men whose teachings, perhaps now even more than during his life, have attracted the attention of legal philosophers in the world. At the time when philosophy of legal positivism on the separation of the law from morality was at its height, Fuller’s original procedural natural law theory appeared in a secularised form, the theory whose distinctive and profound reasons were hailed even in those jurisprudence communities where it led to extremely fierce differences and arguments. Surprisingly, it went to a large degree unnoticed by those theoreticians who were especially interested in procedures and institutional order of the society,

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

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

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

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

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does not suffice for the positive law to become or remain correct (good, suitable), as it is extremely difficult to draw a clear line between the use and abuse of law. The mentioned requirements, at the same time also the measures of internal morality of law, are primarily of process, i.e., procedural character. They fail to impart anything reliable on the important aims of law, since they are neutral with regard to a larger set of ethical questions. However, internal morality may not be neutral when it comes to the very comprehension of man. That is why the abandoning of internal morality of law, stresses Fuller, is contrary to the dignity that makes man a being of freedom. Human dignity, however, is not the only aim to be reached by the internal morality of law. They are also justice, as well as human nature itself, capable of comprehending justice. That is why Fuller in his book especially deals with the relation between inner morality and natural law, calling the results of his teachings a particular type of natural law. For him natural law constitutes a set of requirements of practical sense that govern life in human community. Those natural law requirements, moreover, precede every morality and call for the existence of the basic good, without which no human life can be envisaged. Similarly, Fuller makes a distinction between procedural natural law and substantive (substantial, material) natural law, considering the internal morality of law to be a ”procedural version of natural law”. At that time he deliberately uses the term ”procedural”, attributing to it a particular and extensive meaning, which contains also the essential ”congruence between official activity and a promulgated law”. Fuller’s wish is to overcome, through his teachings, the breach between the formal and substantive contents of law, which is present both in positivism and in natural law doctrine as well. While many positivists believe that even the worst law is valid provided it is formally correct, the advocates of natural law claim the opposite: that no formally and correctly promulgated law is actually correct, until it becomes morally good as well. In an effort to overcome the existing gap, Fuller underscores that substantive content of law should be discussed only within the framework of its external morality. However, the form and content of law are not separate but related, as ”is” and ”ought to be” are inseparably related in law and life. That is why Fuller particularly insists on the discussion of the morality of law, despite the fact that it can be said that each form of law is moral since the requirements of internal morality have been observed. Only then, believes Fuller, after these requirements have been met, or

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when they have at least been discussed, the necessary relation between the law and morality has been established. Owing to Fuller’s productive ideas, law has once again gained a moral idea unjustifiably exiled from it, and thus we can distinguish between ”any” legal order and the ”correct”, and thus ”good” legal order. Law meeting the requirements of justice and morality, or at least man’s idea of what it ought to be, constitutes the correct order. In other words, without respecting the minimum requirements of internal morality of law, no law can be established in the form of a correct order. For a correct order, however, that requirement is only a necessary, but not a sufficient requirement. Along these lines Fuller modernized legal theory, law and society.

III Lon Fuller developed his procedural natural law teachings in an effort to overcome the breach between positivism and iusnaturalism. His endeavours have been viewed in different lights. However, this does not mean that Fuller’s contribution to jurisprudence is modest, as certain jurists would wish us to believe, even in the present day. Still more absurd would be the claim that each discussion on the form of law is completely devoid of moral judgement. And that should quite suffice for the overall evaluation of Fuller’s contribution to legal philosophy and theory to be painted in a much better light. What still attracts much attraction in our day about Fuller’s teachings is that it offers a choice to mankind! Fuller brings law in the closest possible relation with the market, which is not so often emphasised when his work is discussed. Moreover, he believes that law is moral only when related to the market order. That is why throughout ”The Morality of Law” the spirit of endeavour and enterprise is constantly present, and because of that his concept of law constitutes a giant panel of creation and constant rediscovery of law. Only thus can we understand Fuller’s healthy scepticism about the enterprises of the lawgivers, as well as his placing emphasis on spontaneous creation of law, primarily through customs and legal precedents, since he sees the way for improving law to be through developing human communication, rather than through the lawgivers. That is why only in this dynamic and procedural way we can understand his justified concern for the more and more present crisis of public law in the West, which is even today

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

2 Marko Božić, Assistant Faculty of Law, Novi Sad, Serbia

JOHN FINNIS, THE HEIR OF THE AQUINIAN NATURAL LAW TRADITION Abstract: The paper is an attempt to establish the extent to which the neoAquinian natural law theory of a contemporary Anglo-American author John Finnis inherits the ideas of Thomas Aquinas. Our aim is to discover where, how and to what extent John Finnis inherits the philosophical thought of Thomas Aquinas. In that respect our analysis is focused on the basic terms of Finnis’ philosophical and legal construction, which is observed from the viewpoint of the neo-Aquinian nature. Key words: natural law, neo-Aquinianism, law, ethics, basic good, practical reasonableness, common good

Introductory Remarks Trends in the contemporary theory and philosophy of law are, among others, marked by a revived interest in religion as well as attempts to approach law with a stronghold in theology. Within these tendencies a neo-Aquinian theory of law has arisen as a bold attempt to base the explanations of the phenomenon of law on the learnings of Thomas Aquinas. Modern neo-Aquinianism, based on the system of thinking from the 13th century, represents an ”exotic endeavor” in the contemporary philosophy of law and speaks in favor of current relevance of the learning of Thomas Aquinas, even on the threshold of the 21st century 1 . 1

This revival of interest in Aquinas and his system of thinking, primarily among Catholic intellectuals, was increased after 1879 and the papal encyclical Aeterni Patris, where Leo XIII declared the great scholastic the greatest among all scholastics. Since then there has been a development of different, even diametrically opposite doctrines, all of which have been created on the foundations of Aquinas’ learning, and whose only common denominator is the name of their medieval paragon.

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Among a number of neo-Aquinian authors the name of a contemporary author, John Finnis, stands out. Although he was born in Britain, Finnis has built his career outside its borders as well, but always within the countries of the Anglo-Saxon legal tradition: he graduated from the faculty of law in Australia, he received his PhD degree at Oxford and he has taught worldwide as a visiting professor, especially in the USA 2 . His name is connected with a bibliography dominated by topics from general law, philosophy and theory of law, but also by articles from the fields of international, criminal and constitutional legal science 3 . Serbian theory of law has paid some attention to Finnis by observing his works in general. For that reason we have the task to analyze a particularly important aspect of his philosophy: the connection it establishes with its scholastic model, i.e. Aquinian philosophy of law. The aim of this paper is, therefore, to ascertain where, how and to what extent John Finnis follows the philosophical thought of Thomas Aquinas. Due to limitations imposed by space, we shall only define to what degree the basic concepts of ethics and theory of law of John Finnis correspond to complementary concepts of Aquinas’ thought. Our task is to use a comparative analysis of the original Aquinian learning and basic Finnis’ ideas in order to stress the similarities and differences between the two authors, i.e. to determine to what extent the two thoughts correspond in the heritage of the same jusnaturalist tradition. Regarding methodology, our comparative approach relies on Aquinas’ Summa Theologica and The State on the one hand and Finnis’ two capital publications: his most famous work Natural Law and Natural Rights, which has recently been translated into Serbian as Prirodno pravo (Natural Law), and a very valuable monograph Aquinas: Moral, Political and Legal Theory, which has still not been translated and is not available to a wider scientific community.

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Although he primarily built his academic career at Oxford, where he teaches today, Finnis has been a visiting professor several times at many universities all around the world, especially in the USA. In the same capacity he has taught at law schools in Boston and Berkeley, California. Today he works at the Notre Dame Law School in Washington, which ”shares” him with British Oxford. 3 Finnis’ bibliography is impressive and consists of a large number of articles, some written with a co–author, books and textbooks. His most important works are: Natural Law and Natural Rights (1991), Aquinas: Moral, Political and Legal Theory (1998), Fundamentals of Ethics (1983), Moral Absolutes: Tradition, Revision and Truth (1991).

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1 Tomas Aquinas and Finnis’ Substantive Jusnaturalism Undoubtedly, John Finnis can be described primarily as one of the contemporary authors who have dedicated their work to reviving the idea of natural law. In addition, it should be stressed that the character of Finnis’ jusnaturalism is to a large extent the consequence of his confession. Namely, John Finnis is one of the most important Catholic thinkers, who draws his inspiration directly from the works of the classics of natural law. This is why we think that a proper understanding of his works should be immediately preceded by establishing to what degree he follows the viewpoints of antique, medieval and scholastic authorities, the vanguard of which is Thomas Aquinas. We are therefore focusing our attention on the question: what is the essence of Finnis’ natural law, i.e. what is the connection between his and Aquinas’ jusnaturalism? Finnis’ natural law theory is based on two central terms – the concepts of basic good and practical reasonableness. Consequently, to explain Finnis and his jusnaturalist concept would be to explain the place and role of these two terms, simultaneously having in mind their special relationship.

1.1 Basic Good John Finnis’ natural law theory begins with the concept of basic good. Basic goods are fundamental human values, things that make life worth living. They represent the foundations of human existence and, according to Finnis, there are seven of them: human life, knowledge, play, esthetic appreciation, friendship, practical reasonableness and religion 4 . These seven basic goods are 4

It is important to stress the difference between basic goods, which are listed by Thomas Aquinas, and a set of seven basic goods which are recognized by Finnis. Namely, Thomas Aquinas in Summa Theologica gives a general definition of the concept of basic good, which he defines as the value man spontaneously strives for in his own nature, and continues to explain that life and knowledge are examples of such basic goods, without trying to list them. On the other hand, Finnis, who accepts the Aquinian thesis of basic goods, feels the need to make a complete list of them. Aware that the seven basic goods he lists are surely not an exhaustive list of values man searches for, he continues to confess that the list can never be concluded and that forms of human goods are many. Thus, although he claims that other goods represent only roads to the basic seven goods, Finnis questions the necessity of any enumeration.

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natural inclinations of a human being, values one spontaneously strives for recognizing in them aspects of one’s own well-being. Finnis essentially acquires the concept and determination of basic good from Thomas Aquinas, who says in his Summa Theologica: ”All those things to which man has a natural inclination, are naturally apprehended by reason as being good, and consequently as objects of pursuit, and their contraries as evil, and objects of avoidance. Wherefore according to the order of natural inclinations, is the order of the precepts of the natural law.” 5 Aquinas consequently says that man recognizes basic goods spontaneously, as natural inclinations of his rational being, i.e. as objective and universal values. This is where Finnis really follows Aquinas’ ideas 6 and for the same reason both Aquinas and Finnis consider basic goods unquestionable and self-evident 7 . Actually, both to Aquinas and to Finnis reaching basic goods would be to substantialize the meaning of one’s own existence, i.e. to actualize oneself as a human being. Finnis says that ”basic forms of good are opportunities of being; the more fully a man participates in them, the more he is what he can be” 8 . As such, basic goods represent goals of man’s rational activity, reasons why people do concrete things in life. That is precisely why Finnis determines them as practical principles, because their purpose is to position man’s practical reasoning 9 . They represent the first principles of man’s activity, the premises of our actions. They are, Finnis says interpreting Aquinas, ”basic reasons for action” 10 .

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T. Aquinas: Summa Theologica I-II, q. 94, a. 2 c. (translated by Fathers of the English Dominican Province, http://www.newadvent.org/summa) 6 More precisely, Aquinas talks about the most general principles (principia communissima), which everyone knows of (que sunt omnibus nota) in themselves (per se nota) and which cannot be proven (indemonstrabilia). See: ibid, q. 94, a. 6 c. 7 Self-evidence is the quality of basic goods which Finnis insists most upon. To his basic goods are ”undemonstrabile but self-evident principles which shape our practical judgment”. These are values that cannot be derived from facts or proven in any other way. Having quoted Thomas Aquinas, he claims that these are axiological categories which are self-evident (per se nota) and as such absolutely underivable from any speculative principles, metaphysical attitudes and other philosophical presuppositions or theological truths. By insisting on self-evidence of basic goods Finnis manages to build a theory of ethical behavior without explicitly mentioning God, staying equally open both to theistic and atheistic points of view. 8 J. Finnis, Natural Law and Natural Rights, Oxford, 2002, р. 103. 9 ibid, р. 63. 10 J. Finnis: Aquinas, Moral, Political, and Legal Theory, Oxford, 2004, р. 79

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However, if basic goods are the point where Aquinas’ and Finnis’ natural law theories meet, they are also the point where they diverge. Like many authors 11 have noticed so far, what Finnis actually takes from Aquinas is his ideas of basic goods as principles of mundane well-being. Both Aquinas and Finnis consider them principles of human happiness, but only Finnis thinks they are enough for achieving well-being. Unlike Finnis, Aquinas considers this happiness a temporal, mundane and ephemeral amenity, the so-called beatitudo imperfecta. To Aquinas a real bliss, a true happiness, the one ethics is directed towards, aims at reaching and knowing the so-called universal good – God 12 . In that respect Finnis is only partially loyal to Aquinian ethics. He, unlike Aquinas, is occupied by the question of a morality which would, in simplest words, be a road to a good life of an individual. Finnis is interested in the mundane happiness of people. He leaves God aside 13 . Finding the purpose of moral action in mundane life, Finnis has approached Aristotle in his ethics and distanced it from Thomas Aquinas 14 . On the other hand, in not connecting it to any narrower religious context, he has expanded 11

See: Bradley, D. J. M. : John Finnis on Aquinas ”The Philosopher”, The Heythrop Journal, vol. 41/1. 12 It is interesting to make a parallel between Finnis’ and Maritain’s understanding of common good as a key concept of the (neo)Aquinian legal and political philosophy. These two approaches are very close, this primarily being supported by the similarity of connotations of this concept with both authors. Namely, Maritain, like Finnis, under common good subsumes a set of those things which provide each member of a community an opportunity to perfect their lives and personal freedom, simultaneously enabling a harmonious life of a community as a whole. Yet, unlike Finnis, Maritain refrains from closing this set of things, but rather, exempli causa, delimits his list of elements of common good to the most characteristic and obvious examples. However, here also a striking similarity can be found between Finnis’ list of seven basic goods and Maritain’s examples. Thus, Maritain’s concepts of wisdom in action and spiritual wealth are a perfect match with Finnis’ practical reasonableness and religion, while other goods, like friendship, are explicitly stated by both authors. 13 Although not completely. It should not be forgotten that Finnis includes in the list of basic goods the need for religion which offers us a special, non-empirical explanation of first and last questions of man’s world. In that manner God (or another form of religious explanation) gets his place in Finnis’ ethics, in any case not as first or last goal of man’s mundane practice, but as one of seven equal basic goods. 14 To Aristotle reaching happiness is an act of mundane nature and is not connected with any transcendental experience. Although Finnis does not define it in the same way as Aristotle, we consider that he places it in the same context of man’s temporal life, thus achieving more similarity to Aristotle than Aquinas’ thought.

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the borders of its accessibility, although he has not completely secularized it with the fact that he concluded the list of his basic goods with religion – a particular human need for the answers to first questions of man and his world.

1.2 Practical Reasonableness Since basic goods are self-evident and clear, they are not problematic. They are in themselves uncontroversial and as such are the foundations of ethics, although not its fundamental problem. These are undoubtable values which precede every morality. Finnis constantly reminds us: ”Remember: by ’good’, ’basic good’, ’value’, ’well-being’, etc. I do not yet mean ’moral good’, etc.” 15 . Even if they represent a demand, an instruction, a should, basic goods are not a moral necessity. Finnis turns our attention to this by interpreting Aquinas: ”This should is intelligible in the sense that it is not moral. Even the most indifferent or morally hostile people can recognize and, if intelligent, recognize and use some of the first principles of practical reason” 16 . Every human being has the knowledge of basic goods and that is why these goods are the basis of our practical and ethical behavior, but they in themselves are simply not a moral dilemma. They are of extra-moral, or more precisely pre-moral, nature. A moral dilemma is to be found in a different place, according to Finnis. Namely, if we know basic goods which we strive for, we have not solved the problem of reaching them. Knowing basic goods as a reflection of our wellbeing tells us nothing about how they can be achieved. In other words, man never has a dilemma about which values to follow, but about the road that leads to them, i.e. concrete actions which should be undertaken in order to achieve the set goals. So the problem does not lie in basic goods as self-evident premises or principles of our actions, but in concrete conclusions which should be drawn from the premises in order to achieve these goods. Finnis says: ”The principles that express the general ends of human life do not acquire, what would nowadays be called, a ’moral’ force until they are brought to bear upon definite ranges of project, disposition or action, upon particular projects, dispositions or actions” 17 . The problem of ethics is, therefore, not in the presupposed goals of 15

J. Finnis: Natural Law and Natural Rights, Oxford, 2002, p. 86. J. Finnis: Aquinas, Moral, Political, and Legal Theory, p. 86 and further. 17 J. Finnis: Natural Law and Natural Rights, Oxford, 2002, 101. 16

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action, but in the action itself. Here lie all our moral dilemmas: ”By disclosing a horizon of attractive possibilities for us, our grasp of the basic values thus creates not answers, the problem for intelligent decision” 18 . The question is to what degree Finnis follows ethical learning of Thomas Aquinas in this respect. Surely for him, as well as for the medieval scholastic, the basic problem of ethics remains in making right moral judgments on the basis of self-evident principles 19 . Following Aristotle, they recognize well-being in action, ”the activity which perfects the greatest capability of man by directing it to the highest and most noble subjects” 20 . This is a question of a practical ethics. For both Aquinas and Finnis a moral problem is always a problem of action. After posing a problem, Finnis now has to solve it. This is where he introduces the second fundamental concept of his ethics – practical reasonableness. It is seen by Finnis as the capability of reasoning and deciding with the aim to make decisions and act and is determined as ”the capability of one’s own intelligence to successfully deal with personal problems of choosing one’s own actions, life style and shaping one’s own character” 21 . Practical reasonableness is an intellectual capacity of man to cope with a moral dilemma and resolve it successfully and is based on nine principles 22 . Although he had been loyal to his scholastic paragon, only after the introduction of practical reasonableness did Finnis completely unveil his neoAquinian face. Practical reasonableness is at the heart of Aristotle’s phronesis, i.e. prudentia of Thomas Aquinas – practical wisdom or reasonableness as a special ability of the intellect to discern right from wrong in man’s practical action. Like classical authors whose thought he follows, in respecting the demands of practical reasonableness Finnis sees a criterion of ethic self-realization of a human being. Only to the extent of one’s reasonable actions, i.e. following these

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ibid, p. 100. See: T. Aquinas: Summa Theologica I-II, q. 94. 20 F. Koplston: Istorija filozofije – srednjevekovna filozofija, Beograd, 1991, p. 449. 21 K. Čavoški: Uvod u pravo I, Beograd, 1999, p. 84. 22 Finnis lists and discusses in detail these nine principles in Chapter 5 of his book Natural Law and Natural Rights. These are: existence of a rational plan for life, non-existence of arbitrary preferences among goods, non-existence of arbitrary preferences among people, abstinence, commitment, efficiency within reason, respect of every basic good in every act, fostering common good and respecting one’s own conscience. 19

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principles, can we come close to basic goods, the values we spontaneously strive for. Only that can make humanity from potency. Finnis ends his natural law theory as a moral philosophy with practical reasonableness. This is a concept which is a corner stone of his jusnaturalism. ”A consistent theory of natural law is only the one that directly approaches the criticism of practical viewpoints with the intention to separate reasonable from unreasonable and thus differentiate the really important from the unimportant, or is important only as unreasonable use or the opposite of really important” 23 . This is the essence of Finnis’ natural law. It is a moral theory which is based on respecting fundamental values and offers practical reasonableness with its nine principles as a modus operandi for achieving moral good.

2 Thomas Aquinas and Finnis’ Theory of Law If understood in this way, Finnis’ natural law theory is actually a learning which explains the principles of proper, good life, i.e. life where basic goods and values can be reached. As such, his ethics is primarily directed at an individual, a single man, and the way to accomplish personal well-being. Regarding this, the questions are: what is the place of the society in this system, what is the role of the state, public authority, law and other concepts of a political community? The answers to these questions contain Finnis’ interpretation of the role of positive law.

2.1 Legitimacy of Authority Without stressing the importance of the connection between an individual and the community in the way Aristotle and Thomas Aquinas do (both explain human nature starting from man as social being, zoon politikon), Finnis in fact (and, it seem, a priori) accepts the necessity of the existence of society. To him it is indisputable that, besides individual good, there is ”common good of such an all-round association [was] said to be the securing of a whole ensemble of material and other conditions that tend to favor the realization, by each individual in the community, of his or her personal development” 24 . So, common good, in the sense of well-being of the whole political community, which is recognized today

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K. Čavoški: Uvod u pravo I, Beograd, 1999, p. 83. J. Finnis: Natural Law and Natural Rights, Oxford, 2002, p. 154.

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in expressions such as ”general welfare” and ”public interest” 25 , are a precondition of every individual well-being. The concept of common good is one of cardinal concepts of Finnis’ jusnaturalism. Relying on this concept, he will build his understanding of positive law. Namely, by determining the significance of common good for an individual and society in general, he faces very important questions of its realization: who decides on the matters of common good, how are such decisions made and who puts them into action? In Finnis’ opinion, within one community common good could, theoretically speaking, be accomplished either by consent of all its members or by establishing public authority. He has taken this dilemma from Summa Theologica, where Aquinas says: ”Now to order anything to the common good, belongs either to the whole people, or to someone who is the viceregent of the whole people (gerens vicem totius multitudinis). And therefore the making of a law belongs either to the whole people or to a public personage who has care of the whole people: since in all other matters the directing of anything to the end concerns him to whom the end belongs.” 26 . Since absolute consensus in a community is not possible, Finnis opts for a different solution. In interpreting Aquinas, he says: ”So a group’s – the political community’s – good life, too, requires that the group act well. But there is a precondition for acting well: the unity of the acting being’s parts. In individual human beings, this pre-condition is secured by nature. But in communities, the needed unity of life, the unity called ’peace’ {pax}, has to be procured by governance {per regentis industrian}.” 27 . Finnis in effect takes over Aquinas’ justification of public authority, which is necessary to realize common good – necessary material conditions for the affirmation of each personal progress and individual well-being. Acquiring Aquinas’ ideas about the legitimity of public authority 28 , Finnis determines positive law as an instrument through which this authority secures conditions for accomplishing common good, i.e. he interprets law as a set of rules

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Ibid, p. 156. T. Aquinas: Summa Theologica I-II, q. 90, a. 3 c. 27 J. Finnis: Aquinas, Moral, Political and Legal Theory, p. 230. 28 Finnis’ legitimity of public authority is not completely identical to that of Thomas Aquinas, though, all the more since Aquinas’ last justification of its authority comes from its Biblical origin and rests on a well-known saying ”There is no power but of God”. 26

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which direct the community towards common good 29 . In that respect he directly touches upon Aquinas who, in the definition of human law, says: ”It is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated.” 30 . This understanding of the source of public authority and the essence of law is directly continued in other classical authors. Namely, antique political philosophy determines the function of the state as achieving common good and just order. Public authority also exists in order to secure common good of a political community through its decisions. This is a very old idea and is perhaps best illustrated by Aquinas’ idea about the nature of law and regulations: ”Consequently, since the law is chiefly ordained to the common good, any other precept in regard to some individual work, must needs be devoid of the nature of a law, save in so far as it regards the common good. Therefore every law is ordained to the common good.” 31 . According to Finnis, for common good to be really protected by positive law, the decisions of public authority must themselves be based on the principles of practical reasonableness. Only then would law enable the accomplishment of basic human goods and values. This is exactly the connection between natural and positive law which Finnis takes from Aquinas: while making decisions, every legislator must abide by the principles of practical reasonableness, should act reasonably, i.e. in accordance with natural law 32 . Only then can he materialize 29

According to Finnis’ focal definition, law is a concept which is used ”to refer primarily to rules made, in accordance with regulative legal rules, by determinate and effective authority (itself identified and, standardly constituted as an institution by legal rules) for a ’complete’ community, and buttressed by sanctions in accordance with the rule-guided stipulations of adjuticative institutions, this assembly of rules and institutions being directed reasonably resolving any of the community’s co-ordination problems (and to ratifying, tolerating, regulating, or overriding co-ordination solutions from any other institutions or sources of norms) for the common good of that community, according to a manner and form itself adapted to that common good by features of specificity, minimization of arbitrariness, and maintenance of a quality of reciprocity between the subjects of the law both amongst themselves and in their relations with the lawful authorities” J. Finnis, Natural Law and Natural Rights, Oxford, 2002, p. 276-277. 30 T. Aquinas: Summa Theologica I-II, q. 90, a. 4 c. 31 T. Aquinas: Summa Theologica I-II, q. 90, a. 2 c. 32 From Aquinas Finnis also takes over two models of deducting positive law rules from the principle of natural law: modum conclusionis and modum determinationis, i.e. through immediate conclusion from these universal principles and through a closer determination or concretization of a general principle of natural law. Finnis is trying to distinguish these

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the function of his authority and contribute to common good by enabling each individual to achieve one’s own progress in life. Such views of law are the finest illustration of neo-Aquinianism of John Finnis. In other words, a parallel between the two authors could be stressed because, when Aquinas says: ”The political order is the rule of justice. The ruler is expected to rule according to laws and these laws must be just. That means that they cannot be an arbitrary expression of will, whether it is individual or collective, but a reasonable inference from the principle of justness which God has unveiled to man” 33 , Finnis continues, centuries later: ”The name commonly given to the state of affairs in which a legal system is legally in good shape is ’the Rule of Law’” 34 . Actually, to Finnis the rule of law is in fact nothing else than a legal system which respects the principles of practical reasonableness, i.e. it is a system of positive law which follows the principles of natural law 35 . In such cases the legal norm has, not only a legally binding, but a morally binding strength. Such norms, in the words of Thomas Aquinas, ”bind a man in his conscience” 36 .

2.2 Respecting an Unjust Law What Finnis considers a special problem is the situation when public authority and its decisions have not procured the necessary legitimity, when when he says that ”deriving law from basic principles of practical reasonableness truly possesses two main modalities identified and named by Thomas Aquinas; but they are not two streams flowing in separate channels” (Finnis, J. Natural Law and Natural Rights, p. 299). 33 D. Biongari: Politički nazori Tome Akvinskog, Zagreb, 1991, from the preface T. Aquinas: The State, р. 21. 34 J. Finnis, Natural Law and Natural Rights, Oxford, 2002, p. 270. 35 Finnis recognizes all seven principles of the Rule of Law. It exists only when the legal system is such that: 1) its rules are prospective and not retroactive; 2) the rules are in no manner such that they are impossible to abide by; 3) its rules are promulgated; 4) its rule are coherent one with another; 5) its rules are stabile enough to enable people to be directed by its knowledge of the contents of the rules; 6) the bringing of decrees and orders applicable to relatively limited situations are directed by the rules which have been promulgated, clear, stabile and relatively general; 7) those people who possess authority to create, apply and uphold the rules in official capacity a) responsible for their behavior in accordance with rules which can be applied onto them and b) actually apply law in accordance with its spirit. These views, Finnis says, have been taken from other authors. In that respect the similarity of his theory to that of Lon Fuller on the interior morality of law is evident. 36 T. Aquinas: Summa Theologica I-II, q. 96, a. 4 c.

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positive law, created by the will of bearers of public authority, has not been founded on the principles of practical reasonableness, which in itself is not in favor of common good. The question is if the legal rule of corrupt authority stays binding. According to Finnis, what gives a decision a character of justness is the fact that this decision comes from the power of public authority. In order for a rule to be valid, to be applicable and legally binding, it is enough to come from a legally authorized source. In that sense the regulation of positive law does not lose it legal validity not even when it is directly opposite to common good. It still remains legally valid and it is still part of positive law. However, such a regulation, being distanced from justice, loses its moral strength and stops binding man in his conscience. Actually, in cases when the aforementioned principles of natural law are not respected, i.e. when the power of public authority is used against general interest, the decisions which have been made are not morally binding, only legally, which means that man has no moral obligation in his conscience. According to Finnis, ”In those cases a simple principle that an unjust law is not a law cannot apply. Positive law which is not in accordance with the principles of practical reasonableness does not stop being a law, although its characteristic of law is diminished, it is less legal or, in other words, is not completely law” 37 . Although it seems that by making these claims Finnis radically departs from one of the most recognizable Aquinian theses – lex injusta non est lex 38 – he is merely giving a more original interpretation. Using Aquinas’ attitude that in protecting common good a just law binds man in his conscience, Finnis only draws a logical conclusion that in the opposite case an unjust law stays a mere positive law regulation devoid of full legitimity and inner moral strength 39 .

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Vukadinović, G. Stepanov, R. Teorija prava I, (Theory of Law), p. 517. Latin for: Unjust law is no law. 39 Actually, in his Summa Theologica Aquinas says: ” On the other hand laws may be unjust in two ways: first, by being contrary to human good, through being opposed to the things mentioned above – either in respect of the end, as when an authority imposes on his subjects burdensome laws, conducive, not to the common good, but rather to his own cupidity or vainglory – or in respect of the author, as when a man makes a law that goes beyond the power committed to him – or in respect of the form, as when burdens are imposed unequally on the community, although with a view to the common good. The like are acts of violence rather than laws; because, as Augustine says (De Lib. Arb. i, 5), ”a law that 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 38

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In that manner Finnis’ doctrine becomes widely accepted and equally well resounds not just among supporters of the revival of natural law, but also among the followers of legal positivism. It plays the part of a compromise. ”A reason for that should simply be sought in the fact that its comprehension does not represent an antipode, but a complement of the attitudes of positivists, especially in the part where Finnis’ attitudes are compatible with the theory based on sources according to which law, even if unjust, is formally valid because of its source” 40 .

yield his right, according to Mt. 5:40,41: ”If a man ... take away thy coat, let go thy cloak also unto him; and whosoever will force thee one mile, go with him other two.” T. Aquinas, Summa Theologica I-II, q. 96, a. 4 c. 40 Vukadinović, G. Stepanov, R. Teorija prava I, p. 518.

3 Marko Trajković, LL.M, Assistant Faculty of Law, Niš, Serbia

RICHARD A. POSNER: THE PROBLEMATICS OF MORAL AND LEGAL THEORY third printing, First Harvard University Press, 2002, 311 pp.

Legal Affairs magazine named Richard A. Posner one of the top twenty legal scholars in US. But his pragmatism, his qualified moral relativism, and his affection for the philosophy of Friedrich Nietzche set him apart from most American conservatives. His style is approachable, his explanations almost always clear, although he is well know for his polemical style. His influences are the American jurist Holmes and Hend. Posner has written several books on jurisprudence and philosophy of law: Law, Pragmatism and Democracy, The Problems of Jurisprudence, The Problematics of Moral and Legal Theory. Posner’s philosophy is often controversial, but its contribution is significant whatever the subject at hand is. The book of Richard A. Posner The Problematics of Moral and Legal Theory, grew out of series of lectures given in 1997 at – Harvard, New York University, and at the University of Arizona. In this book, he argues why moral theory should not influence the shaping of the law. His cry here is: „Free law from moral theory” (p. 95). Posner’s primary interest is the law, but he accepted the opinion that is now recognized that lawyers, judges, and law professors can not do law without help from other disciplines. That is becouse they do not know enough about activites that law regulates. He thinks that profession needs help, but there is disagreement about where it should turn for help. Posner argues that moral philosophy has nothing to offer to judges or legal scholars in the formulation of jurisprudental or legal doctrines. For him it is particularly clear that legal issues should not be analyzed with the aid of moral philosophy, but should instead be approached pragmatically. The book is in the two parts, each containing two chapters. The first part is primarily critical, the second primarily constructive.

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About moral problem he argues in the chapter Moral Theory. Posner thinks that moral theorising does not provide a usable basis for moral judgements, and cannot make us morally better people. Even if moral theorising can provide a usable basis for moral judgements, it should not be used for making legal judgements. Then he says that there are no universal moral principles; they are only fancy dresses of social norms that vary from society to society. What is universal are the „moral sentiments” or „moral emotions”, which include guilt, indignation, and disgust. That position he calls „pragmatic moral skepticism”. He is not a moral nihilst, nor an epistemological skeptic or relativist, but merely a limited skeptic. Posner argues that, academic moral theory should be distinguished from moral preachement outside the academy. The Jesus Christ of the Gospels is a moralist, but, unlike Plato and Aristotle, he is not a theorist and does not make academic-style arguments. From moral theory Posner moves to legal theory, examining how moral theory has and might influence the law. As he sees it, the influence is extremely limited. He cites a number of ostensibly moral legal cases, from euthanasia and abortion to segregation and finds moral theory basically absent and unnecessary from the judical decision regarding them. In the chapter Legal theory, moral themes, he carries the discussion explicitly into the relam of law. The term ”legal theory” is not as familiar as it should be. This chapter is about the infection of legal theory by moral theory and about the profession’s efforts to resist the infection. Here he examines issues in jurisprudence, constitutional law, common law and statutory law. He writes about these issues with reference to Dworkin, Hart and Habermas. The feature of these jurisprudential theories that he wants to emphasize is their pretension to universality. Each theorist announces principles he thinks applicable to any legal system. Yet, each is actually best understood as describing a national legal system of England in the case of Hart, American in the case of Dworkin, and German in the case of Habermas. The discrepancy between law and justice is an old problem, but it is obscured by the law’s frequent borrowing of moral terminology, of terms such as „fair” and „unjust”. With reference to Holm’s thought, he says that long ago Holms warned of the pitfalls of misunderstanding law by taking its moral vocabulary too seriously. The law uses moral terms in part because of its origins; in part to be impressive; in part to speak a language that the laymen to whom the commands of the law are adressed, is more likely to understand and at the end Posner

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

4 Prof. Danijela Grujić Novi Sad, Serbia

FOR THE LOVE OF ONE’S COUNTRY AND THE WORLD Abstract: In America, the academic discourse on the issue of patriotism and its limits at the end of the twentieth century 1 focuses on the basic modern political antithesis cosmopolitism versus patriotism, thus making it the starting point for a serious public discussion, which reaches far further from its basic homeland, more precisely, far deeper than that, touching the goals of an empire, the eternal mankind. This path is very similar to the one that is walked by national literatures climbing up to become world literatures, only that the interest which it arises does not stop by the cultural, or the moral, or by the cosmopolitan view, as it is usually the case in a superficial approach. Even a certain historical interest could be found in all this, a trial that the recent American and European history is understood in the light of the antithesis under consideration. At the same time, it enhances both theoretical and practical human behavior, in fact, it challenges a consequent life attitude to be chosen no matter where, either here or in America. Key words: Cosmopolitism, patriotism, America, multicultural, globalization, international order of states A way of thinking, arising from the contemporary political experience in America, a unique reflection of the political practice at the end of the twentieth century follows up the tradition of the recent centuries, a way of thinking that encapsulates cosmopolitism versus patriotism. The vivid interest shown by the 1

This discourse has been published in the Proceedings For The Love of One’s Country, edited by Martha Nussbaum and Joshua Cohen. According to Martha Nussbaum, it had begun somewhat earlier by Richard Rorty’s invitation addressed to his co-patriots to establish a common American identity. This was not an isolated attempt concerning strengthening of patriotism, but, previously, Sheldon Hackney had provoked a national wide discourse about the American identity.

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speakers taking part in the discussion 2 toward the relation of cosmopolitism and patriotism, opened up the possibility of taking under consideration the role and importance of cosmopolitism and patriotism of the contemporary world in a complex way, as well as a variety of answers directed at the cosmopolitan initiative given by Martha C. Nussbaum. In her introductory essay, this authoress referred, above all, to the cultural cosmopolitism typical to the antique epoch, stressing ”the ancient ideal of a cosmopolitan, a man devoted to the ever embracing global community of human beings” 3 , versus patriotic pride, which is dangerous both in moral and politic way. The enthusiasm for the cosmopolitan concept of education aims at ”putting global and not democratic or national citizenship in the focus of civil education”, on the other hand, it refers to modern cosmopolitism as such, its political dimensions as well as the basic dichotomy of the new age about the meaning what civilian means, in this context: civilian in the USA, equals civilian of the world. Just to remind, let us stress that the tradition what cosmopolitism really is, what is often being referred to by participants in discussions, happens to be far richer than people usually have in mind when mentioning Cynics, Stoics or Kant. It is even more important to emphasize that the thought of cosmopolitism itself has transformed over its long history, having been undergoing a whole range of special shaping. An essential difference, however, should be made between cosmopolitism in an antique sense and modern sense; the difference lies in epochal differences between the old and new world. American cosmopolitism bears basically a cultural character; it is just an abstract idea originating from a rather weak human subjectivism, although – in a historical sense – it did participate in the implementation of the antique Cosmo polis idea. Bearing that in mind, Nathan Glazer says: ”I assume that one reason why cosmopolitism could make any sense for the philosophers studied by Martha Nussbaum is that they themselves were civilians of the ’Cosmo polis’ – an almost universal state and civilization – the one sided rights and obligations of which were reflected in the uniformity of urban architecture.” 4 Nevertheless, it

2

In the above mentioned Proceedings: Martha C. Nussbaum, Joshua Cohen (ed.) for the Love of One’s Country (A Discourse on Limits Concerning Patriotism), Biblioteka ”XX vek”, Beograd 1999, there are Martha Nussbaum’s editorial, papers of sixteen speakers and Martha Nussbaum’s final paper. 3 Op. cit., p. 10 4 Op. cit., p. 77

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was a negative experience in civilization sense concerning the formation of a Cosmo polis, a totally opposite model of the contemporary belief about what cosmopolitism is. It was not a cosmopolitan empire at all; therefore, we should not be surprised by Amy Guttmann’s opinion, which is: ”According to what we have known so far, the only world political order possible is tyranny.” 5 Sissela Bok also realizes the same, when she reminds us that ”the Stoic Marco Aurelio’s inspiring reflection about cosmopolitism, equality and love toward your fellow men did not stop the Roman Emperor Marco Aurelio to oversee the increased persecution of Christians, who fought for the very same ideals.” 6 When speaking of the modern epoch, situation is quite the opposite. Cosmopolitism as a child of the enlightenment has become a relevant political idea, which, however, did not succeed to be brought about in the contemporary international world order of the national states. The strong modern antithesis to cosmopolitism and patriotism within the issue of political ideas has been proven immature when speaking of historical reality. Therefore, Amy Guttmann’s words should be taken seriously: ”Indeed, we can be citizens of the world only if a worldwide political structure exists” 7 , of course, such a structure which would be the expression of a Cosmo politic pursuit in a modern sense.

The American Internationalism The specific nature of the American national identity, as an extraordinary blend of cosmopolitism and a parish centered structure, studied closely by Benjamin R. Barber, discloses the almost forgotten bitter life story of Europe from the last century, being shattered by the brutality of intolerant social relations. The birth of American citizens in the light of historically extremely tense antithesis of cosmopolitism and patriotism gets a special cosmopolitan sense. ”Settlers and (later on) residents saw themselves as subjects of a new process of losing roots and taking roots again.” In his famous An American Farmer’s Letters, St. John Cravacker introduces the new American shape of patriotism as a counterpart to the religious parish centered structure and to the persecutions

5

Op. cit., p. 83 Op. cit., p. 49 7 Op. cit., p. 83 6

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which caused people immigrates to America. American patriotism was the counterpart to all those evil, which Martha Nussbaum links to American patriotism. Cravacker celebrates the formation of the ”new man” in the ”great American asylum (where)... everything tends toward the renewal (of man)... new laws, new life style, new social structure: here they have become people; in Europe they were just infertile plants... (here) they have struck their roots and bloomed.” How it happened? ”What power caused that unusual change happen? The power of law did.” American civil identity was invented as a barrier, to prevent religious wars; on the other hand, Martha Nussbaum fears, that religious war was exactly what American civil identity could have caused.” 8 The issue is about the American intention to overcome the dualism of patriotism and Cosmo politics, which is a special experiment ”to implant patriotic feeling onto a constitutional trunk” 9 , an exception of a new collection of patriotic ideas, that had to free the inhabitants in America from the burden of European cultural and political links. The American internationalism is defined by Lincoln’s words, ”America is perhaps our best hope ’for the people worldwide’; those ideas attracted to the American shores people who had been made unhappy by all kinds of poisonous patriotism.” 10 The American tendency to overcome the modern antithesis of cosmopolitism and patriotism was implemented in a special state, which fact caused a range of collateral problems later on.” The attempt to make such values cosmopolitan, even caused some troubles to America (in Mexico, under Wilson, in Vietnam under Kennedy, Johnson and Nixon, and now, perhaps, in Bosnia) – a reminder for Martha Nussbaum that cosmopolitism also has its pathology and can nurse its own antiseptic version of imperialism” 11 – explains Benjamin R. Barber. Michael Walzer speaks about the consequences of making a state cosmopolitan, saying that crimes ”in the twentieth century were done alternatively by perverted patriots and perverted cosmopolitans” 12 , referring to socialism in Leninist and Maoist version. Apart from his opinion that no culture is cosmopolitan in a full meaning of the word, Michael W. McConnell says: ”Martha Nussbaum’s advise is

8

Op. cit., p. 40 Op. cit., p. 39 10 Op. cit., p. 42 11 Op. cit., p. 42 12 Op. cit., p. 57 9

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specially wrong when addressed to a country that will most likely accept it: the United States of America. No matter what the truth about cultures of other countries might be, the American culture has been emphasizing universal principles of natural justice rather than pride and dignity of a particular race and nation.” 13 It is the site of a contemporary, ripe experience of multiculturalism, as a wide ground for modern cosmopolitism. It is all about a special pride coming from belonging to the American nation, a pride based on ”a general acceptance of various segments from cultures of different nations, i.e. our ancestors’, coming from each and every corner of the globe. We would certainly make a big mistake if we denied it, wouldn’t we?” 14 Indeed, it is the cosmopolitan base that should be strengthened these days, as Sissela Bok also states it: ”If we do not learn how to understand the unique nature of cultures, starting from our own, we will probably not know how to appreciate human diversity neither, along with a common humanity that is the essence of the cosmopolitan ideal.” 15

Being a Cosmopolitan in a Historical World By focusing on what is the universal in culture, Judith Butler is showing interest in the particular experience of the universal, its cultural diversity and cultural interpretation as a unique cultural articulation of the universal. Universal is in the very core of cosmopolitism, it is not its constant unit, though. Its sense has been being historically formed, open for the future, and can come only as a result of multicultural interaction. ”Interpretation on that scene of clashes is such that the intended meaning is not more decisive for the ”final” reading than the received meaning, so there can not come any final judgment as regarding the opposed positions. Without this final judgment, the dilemma concerning interpretation still stays, representing a dynamic feature of the upcoming democratic praxis.” 16 That is how, in the cultural sphere, the issue of historical category in the practical world opens up”.

13

Op. cit., p. 100 Op. cit., p. 101 15 Op. cit., p. 84 16 Op. cit., p. 61 14

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The cosmopolitan content is historical as well, shaped by historical time, just as each unique culture is in a constant movement. ”But, it has always been that way, everything passes by, because culture is a change, a movement in itself; it is where knowledge on cosmopolitism lies and only the acceptance of that form of a change has an erotic attraction, which can be a counterpart to patriotism” 17 – Robert Pinsky thinks. Criticism of dry formulations regarding cosmopolitism can also be frequently heard, along with the growing distance between cosmopolitism and tradition, its abstract nature, bloodlessness, as some scholars say. Hilary Putnam stresses: ”Tradition without mind is just blind; mind without tradition is empty.” 18 What sense does a universal mind make without tradition? Starting from this general statement on the historical character of the practical world and its categories one should go behind the antithesis of cosmopolitism and patriotism. Different traditions take part in the discussion and debate, and the very understanding of the universal itself is being reconsidered. ”Shortly, we do not have to choose between patriotism and the universal mind; the critical intelligence and the devotion to the best values in our own tradition, including our national and ethnic traditions, are mutually dependant.” 19 A full appreciation of intercultural differences and their harmony mean the very life core of contemporary cosmopolitism. ”The very celebration of cultural differences is what distinguishes a cosmopolitan from some other successors of enlightened humanism.” 20 – thinks Kwame Anthony Appiah. That is the opinion which comprises cosmopolitism and patriotism in the common task of building a tolerant world. Generally, cosmopolitism promotes respect to every natural and historically developed difference, without any hierarchy, with no dominancy and subordinacy, as Martha Nussbaum expresses in her final paper.

A Contemporary Definition of Cosmopolitism The reconsideration of Richard Falk’s cosmopolitism means a serious judgment about the nature of the contemporary relation between cosmopolitism and patriotism, a widely accepted definition of cosmopolitism, which focuses on 17

Op. cit., p. 109 Op. cit., p. 115 19 Op. cit., p. 119 20 Op. cit., p. 38 18

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the specific features of contemporary international order of affairs. ”Although I basically share Martha Nussbaum’s vision, I am concerned about the fact that she implicitly supports the polarized – either/or – opinion on the tension between the national and cosmopolitan awareness. The discussion launched this way necessarily overlooks the uniqueness’ of our political circumstances at the end of the twentieth century, and exactly that uniqueness makes both extremisms problematic.” 21 The loss of high degree autonomy and the primacy of a supreme state, with strong processes of regionalization, globalization and trespasses of human states caused by demands of the global market make the key structural nature of international history these days. Naturally, it makes the blade of patriotism become blunt, but also enables common performance for patriotism and cosmopolitism in the world, where the political unit of measure is not national state any more. Recovering of human state and human region with socially engaged institutions demands a common initiative both for patriotism and cosmopolitism. Thus, very important part of the discussion is warning to the dangers born by globalization, as well as the talkers’ stressed opinion that cosmopolitism should be distanced from this contemporary process ruled only by the market. ”To fulfill the confidence, cosmopolitism should join the criticism aimed at the ethically imperfect globalization, embodied in the neo-liberal models of thinking, and in such view of the world as a whole, which minimalizes the ethical and visionary content of the cosmopolitan idea.” 22 – says Richard Folk, by adding that ”such a view on the whole completely oversees ethic imperatives of human solidarity.” 23 The matter with globalization coming from beneath ethically is neither neutral nor capital motivated. Moreover, it can be understood as an expression of neo-cosmopolitism, in its base there are trans-national and local participants and processes, along with voluntarily joined citizens, often engaged around the global problems concerning environmental pollution. Another kind of answer to the accelerated globalization is the development of cosmopolitan culture that is, for the time being, mostly aimed at establishing an international discourse comprising topics such as for example: women, development, population and environment. Gradual moving away of democratic practice from its narrow ties to state as such can be the path of reconciliation 21

Op. cit., p. 65 Op. cit., p. 69 23 Op. cit., p. 70 22

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between patriotism and cosmopolitism. Amy Guttmann says it similarly: ”we can reject the idea that our primary commitment belongs to any specific community and that we can understand the moral importance of living as free and equal citizens in any really democratic political system.” 24

24

Op. cit., p. 83

IV Argumentation and Interpretation of Law

1 Prof. Marijan Pavčnik, PhD Faculty of Law, Ljubljana, Slovenia Constitutional Interpretation 2 Slobodan Beljanski, PhD Attorney of Law, Novi Sad, Serbia Pound’s Concept of Law Standards 3 Petar Teofilović, SJD Provincial Ombudsman of AP Vojvodina, Serbia The Contribution of the US Jurisprudence to Freedom of Expression in the USA Through the Development of Defamation Law 4 Dragutin Avramović, Assistant Police Academy, Belgrade, Serbia Alan Watson: Legal Transplantats – An Approach to Comparative Law

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1 Prof. Marijan Pavčnik, PhD Faculty of Law, Ljubljana, Slovenia

CONSTITUTIONAL INTERPRETATION Abstract: The author begins the article with the nature of the constitution and some problems of its interpretation. Further on, he analizes the classic interpretative arguments: linguistic, logical, systematic, historical and teleological interpretations. In the end, he emphasizes the importance of legal principles and the mode of application. Key words: Constitution, interpretation, interpretative arguments, legal principles, mode of application

I Introduction Constitutional interpretation is one kind of interpretation of legal texts (→statutory interpretation). It is only an interpretation when the legal meaning is at the same time the meaning of the words or one of the meanings of the words of the legal text. It is in the nature of understanding that no text can predict with complete certainty how it is to be understood. A legal act can never ”catch up” with its interpretation 1 . This unavoidable characteristic of legal understanding is most intensive in connection with the constitution, which is, at least from the standpoint of national law, the legal act standing at the top of the hierarchy. In the end, the person interpreting it is alone. Above him, there is no higher legal act that could very intensively direct the interpretation of a lower one. To paraphrase Kant, above him there are only the starry sky and the moral law within him 2 .

1

Hassemer Winfried: Juristische Hermeneutik, Archiv für Rechts: und Sozialphilosophie, 72 (1986) 2, pp. 203 2 See: Kant Immanuel: Kritik der Praktischen Vernunft. Suhrkamp, Frankfurt/Main 1989, pp. 300 (A 289, 290)

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It is a play on words whether, in view of what has been said, the interpretation of the constitution is a supra-constitutional or a sub-constitutional act. The dilemma was intensified by the former U. S. Supreme Court Justice Charles Evan Hughes, who stated that the judges are ”under a constitution, but the constitution is what the judges say it is.” If one tries to be precise, one can see that the interpreter is above the text; the text is before him and he must understand its meaning. The key question is how one enters this hermeneutical circle: do his approach and his previous knowledge require that he discovers by means of individual interpretative arguments what the text contains, or does he want to do everything to willingly bring his own views, aims, and desires into the text? The suitable view for the interpretation of the constitution is the approach mentioned first, which attempts to discover what the constitution contains. Finding out what the constitution contains, which possibilities it offers, and what the meaning of these possibilities is, is not just an act of rendition/ reconstruction, but also a creative act. On the level of principle it can be said that ”the real meaning of a text, as it speaks to the interpreter (...) is always co-determined also by the historical situation of the interpreter and hence by the totality of the objective course of history” (Gadamer 2004, 296). [”Der wirkliche Sinn eines Textes, wie er den Interpreten anspricht, (...) ist immer auch durch die geschichtliche Situation des Interpreten mitbestimmt und damit durch das Ganze des objektiven Geschichtsganges” (Gadamer 1990, 301).] Regarding legal understanding in general, and especially regarding the legal understanding of the constitution, there are numerous important circumstances co-determining such understanding. The task of individual interpretative arguments is to open the context of understanding and to rationalize, check, and direct understanding. The interpretation stops at the point where it goes beyond the possible meanings of the words of the constitution 3 . Constitutional interpretation is treated as one method of arriving at a possible understanding of the constitution by constitutional courts too. This analysis can be appropriately applied to interpretation carried out by regular courts or other competent state bodies. The main difference between constitutional

3

Gadamer Hans-Georg: Truth and Method. London, New York 2004, pp. 296, [”Der wirkliche Sinn eines Textes, wie er den Interpreten anspricht, (...) ist immer auch durch die geschichtliche Situation des Interpreten mitbestimmt und damit durch das Ganze des objektiven Geschichtsganges”, Gadamer Hans-Georg: Wahrheit und Metode, 6th Edition, Tübingen, 1990, pp. 301]

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and regular courts is the competencies they have. The position a court has in the hierarchy of courts is of great importance as well. In principle, the higher this position is, the greater is the influence upon the creation of court practice.

II Some Interpretative Dilemmas In principle, the same problems and reservations that apply to the understanding of legal texts in general also apply to the understanding of the constitution, though this does not mean that no differences of meaning exist between the two kinds of understanding. In a very schematic way, three common dilemmas in particular can be mentioned: the openness of interpretative arguments with regard to their meaning, the open circle of interpretative arguments, and the loose relations between the interpretative arguments. If legal texts were defined in terms of their meaning from the very beginning and if they maintained this definiteness also in contact with concrete cases, they would not need to be interpreted (In claris not fit interpretatio!), but one could apply them directly and an immediate subsumption would be possible. The same rhetorical question also applies to individual interpretative arguments. No legal text is designed as a form to be filled in by data, after which it could be applied. And even if it were designed in such a manner and came close to the nature of a form, it would still be just one of several forms among which one would have to choose. In short, interpretative arguments are ”only” orientations and more or less condensed directions on how to act in concrete cases. ”Even at their best,” Aarnio says, ”they only tell us: go in this direction” 4 . And this is already a great deal, in some (difficult) cases this can mean very much. The second dilemma is that we do not know a closed chain of interpretative arguments. The argumentative circle is open, to already known arguments new ones can be added if they can contribute to discovering and checking the meaning of the legal text. New arguments are constantly produced by approaches founded especially on basic (human) rights and duties, and on legal principles (e.g. on the principle of the state governed by the rule of law and on the principle of the constitutional separation of powers), etc. If, in spite of all this, we still speak about established interpretative arguments, it is obvious that we refer to some 4

Aarnio Aulis: Reasoning Judicial Decisions, Rechsnorm und Rechtswirklichkeit. Festschrift für Werner Krawietz zum 60. Geburtstag. Berlin 1993, pp. 644

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arguments that are generally accepted in a certain legal culture and/or in a certain field of law. The common point of the established arguments is von Savigny’s design of interpretation (see section IV). Nor is there any easy solution to the third dilemma, drawing attention to the relation between the interpretative arguments. Theory has given several suggestions on how to form a fixed sequence to be kept in legal practice. The final answer is short and clear: there is no fixed sequence, there exists exactly the same number of answers as there are authors who have dealt with methods of interpretation. Nevertheless, the answer to such interpretative conflict is not arbitrary because suitable orientations can be achieved in spite of differences. The basic orientation is that only such interpretation is allowed that remains within the possible meaning (as porous as it might be) of the legal text. The second orientation is that all main viewpoints of interpretation (logical, systematic, historical, and teleological points of view) are to be checked and the solutions they bring are to be established. From among these meanings interpreters choose the most convincing one, which is the one with the most arguments (with regard to quality as well as to quantity) speaking in favour of it and which is at the same time the meaning corresponding to the purpose (telos) of the legal rule. If the interpreter vacillates between several solutions he decides on the one that is in accordance with the purpose of the legal rule (see section IV.6.). In this sense the teleological interpretation together with the linguistic one is the basic principle of interpretation. At the same time, this is the common denominator reached by theories studying the conflict between the interpretative arguments.

III The Nature of the Constitution How the constitution is designed and understood as a legal act influences the interpretation of the constitution. It is in the nature of the constitution that it is the starting-point legal act and the basic legal act: it is the starting-point act because it has the highest legal validity within the state, and it is the basic legal act because it regulates ”just” the most important social relations. Being the starting-point act also means that the constitution is (at least from a certain point of view) primarily a procedural act, which enables all political subjects to play the legal game. The constitution foresees the kinds and responsibilities of legal subjects, the relations between them and the basic procedural rules forming the framework within which legal and political decisions can be taken. The procedural side of the constitution is

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

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legal manner: from supreme state bodies normatively giving the constitution an operational form by means of statutes and other general legal acts, and ordinary mortals, who are limited by the equal rights of others, to the state body (e. g. to the constitutional court), which ensures that the game takes place within the limits of the law as regards the content and the procedure. And this is also the key to understanding the constitution. In a way, this key is very simple: we are within the constitution as long as we take into account the norms regarding jurisdiction, procedure, and orientation as concerns content (together with its binding limitations). As long as these are our starting points, we are within the framework of the law (the constitution) and at the same time this setting enables us to make the content dynamic and to normatively develop it further and in more detail. As long as we act in such a manner, we act legally and at the same time support any new content we consider legitimate. And it is also a game that can and must be controlled by the competent state body (e. g. by the constitutional court or by the supreme court). This competent state body does not have any supra-constitutional criterion that would indicate whether the development of the contents of the valid constitution is constitutional. The competent state body can ”only” decide whether the development of the content is still within the limits of constitutional possibilities and whether such has occurred according to a procedure that is still within the limits of the constitutional procedural game. It is of special importance for the competent state body (e. g. for the constitutional court) to continuously examine whether legal participants respect the constitutionally consolidated institutions of a state governed by the rule of law (such as the so-called constitutional democracy). What does it mean to be ”still within the borders of constitutional possibilities” or to be ”still within constitutional procedural play”? Such is not a firm but often a vague criterion. It is unproductive not to admit it and to hide behind the constitutional text, as if it were certain enough. It would be much wiser to ascertain the relative uncertainty of the constitutional text, to analyse it as such and then to search for those implementations that are not beyond the constitution and which try to embody the meaning that the constitutional text at least implicitly includes. No, this is not a play on words, it is a methodological procedure which is wilfully self-restricting. This methodological procedure has a special weight for the highest judicial body (e.g. for the constitutional court), which in more difficult cases may be tempted to appeal to constitutional provisions only apparently, while in reality, however, it functions as a supra-constitutional organ, changing and completing the valid constitution (cf. → activism, judicial).

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IV Classic Interpretative Arguments 1 Introduction Each field of law has a number of peculiarities which have to be considered, and which also influence the interpretative approach. The general methodologies of evaluation as well as individual legal sciences have to take into account these peculiarities. The first step to take is to start with the classic interpretative arguments of von Savigny and to try to determine whether they have any special traits when they come into contact with the text of the constitution. The interpretative arguments themselves further such approach because they are always in a suitable ”dialogue” with the object of their understanding. Von Savigny’s classic canonic arguments comprise linguistic interpretation, logical interpretation, systematic interpretation, historical interpretation, and teleological interpretation. These arguments are well-known and generally accepted in European continental law. Below I shall draw attention to some peculiarities these arguments have or can have in constitutional interpretation. Similar arguments are used in the interpretation of the Constitution of the United States. Philip Bobbitt 5 analyzes six forms or modalities of constitutional interpretation. These forms are the following: historical argument, textual argument, structural argument (this argument is similar to systematic interpretation), precedent, ethical argument (which derives ”rules from those moral commitments of the American ethos that are reflected in the Constitution”), and prudential arguments (which seek ”to balance the costs and benefits of a particular rule”) 6 .

2 Linguistic Interpretation The basic characteristic of linguistic interpretation is that the language of the constitution is the starting-point legal act and the basic legal act (see section III). In the constitution the organisation of the state is defined in a relatively precise manner, whereas legal principles and general provisions on the form of 5

Bobbitt, Philip: Constitutional Interpretation, in: Kermit L. Hall (glavni ur.): The Oxford Companion to the Supreme Court of the United States, New York Oxford 1992, pp. 184-188 6 Cf.: Summers Robert S.: Statutory Interpretation in the United States, in: MacCormick Neil D., Summers Robert S. (eds.) 1991. pp. 412-419

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the state, on the characteristics of legal order and numerous elements of basic (human) rights are relatively uncertain. The relatively uncertain terms are surrounded, as Hart says, by a penumbra of doubt, which leaves open the question whether concrete cases still belong under general rules 7 . The circumstance that the constitution is the hierarchically highest state act aggravates this problem. If the constitutional court or some other organ which interprets the constitution with finality, is not prepared to exercise self-restraint, this endangers the principles of the separation of powers. The edge of doubt may hide the danger that the representative of the interpretative power changes the basis of the legal order; on the other hand, it draws attention to the importance of the moral starting point of law and to the sensitive moral role (and also responsibility) of those interpreting the constitution.

3 Logical Interpretation Logical interpretation is not ”interesting” in its aspect of demanding treatment in accordance with the rules of formal logic with regard to the formation of thoughts, inference, and proof. In this sense no differences exist between the understanding of the constitution and any other legal understanding. Logical interpretation becomes exciting when it refers to persuasion and substantiation concerning the content, which cannot be checked and chained by strict rules of formal logic. Examples of persuasive argumentation are argumentum a contrario, argumentum a simili ad simile (within the legal text or due to a gap in the constitution), argumentum a fortiori, argument of the nature of things, etc. As an example of persuasive argument, the argumentum a maiori ad minus may be taken. This argument has been used by some courts when deciding on the conformity of laws with the constitution and on the conformity of regulations with the constitution and with laws. The courts have taken the view that everything short of an immediate abrogation or a complete annulment of a regulation is allowed. In this sense also the so-called interpretative decision should be permitted, though mentioned neither in the constitution nor in the constitutional court act. Interpretative decisions may be rather questionable if they are not brought into accordance with the role of the constitutional court in a certain state legal system (systematic and teleological interpretation!). If the constitutional court is to be subordinate to constitutional institutions (i.e. the guidance of a state 7

Hart H.L.A.: The Concept of Law, 2nd edition, Oxford 1994., pp. 123, see also pp. 128-136.

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governed by the rule of law) and restrained in its actions so that it does not intervene in the responsibility of the legislature (the principle of the separation of powers!), this means that only some interpretative decisions are allowed. The basic task of an interpretative decision is to exclude from the legal system the meaning of the text of a statute (or some other legal text) that is unconstitutional. The interpretative decision saves the statute (this applies mutatis mutandis to the general legal acts that can be the object of a constitutional court review) and helps the legislature to keep its legal message within the limits of constitutional possibilities. In principle, the task of the constitutional court is to authoritatively remove any unconstitutional interpretation. It is important, however, that the interpretation must never take over the role of the legislature, which can, within the limits of the constitution, decide in favour of a broader or a narrower scope of the meaning of the legal text. In principle, the constitutional court should not establish which meanings of the legal text are the only legally (constitutionally) correct ones, but should just keep watch on whether the search for the dimensions of the meaning of a statute is constitutional (i.e. within the limits of the constitution). Legal hermeneutics knows that new cases give rise to new solutions and new developments regarding the meaning of a statute. The constitutional court should only exceptionally  in the case of very unclear statutes that cannot be abrogated without causing irreparable damage  state in a positive manner which interpretation is constitutional, in all other cases it should be a negative legislature.

4 Systematic Interpretation Systematic interpretation can also have a general and a special meaning. The general meaning is well known and refers to the role attributed to the external and internal legal system 8 , as well as to the manner of connecting and harmonising these two systems if incompatibilities exist between them. The latter case already deals with a special meaning that is typical of individual legal fields. The case behind it refers to the fact that the constitutional interpretation must also consider the ”spirit” and the sense reigning in individual legal fields. 8

Heck Philip: Begriffsbildung und Interessenjurisprudenz. Tübingen, 1932, pp. 139 ff.; Cf.: Canaris Claus-Wilhelm: Systemdenden und Systembegriff in der Jurisprudenz. 2nd edition, Berlin 1983.

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

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5 Historical Interpretation Historical interpretation is a classic interpretative argument that comprises several elements: it considers the historical conditions in which and because of which the legal text originated, it discovers the genesis and the whole development of how the legal text obtained its final linguistic expression and it compares any earlier legal text with the new text regulating the same legal matter. In all these cases the historical circumstances help to establish the meaning of the legal text. All three groups of questions are certainly also important for the understanding of the constitution. Historical circumstances are especially important for the preamble and its interpretative power; the preparatory materials available are especially interesting in connection with the constitutional provisions which were the subject of different points of view at the time when the constitutional text was in the process of being adopted or where the final text is a compromise between several points of view, whereas a comparison of the earlier constitution with the new text is especially valuable in connection with the constitutional provisions that are different in the new constitution. The historical interpretation opens another central dilemma, which is of key importance for the understanding of the constitution. It is the dilemma of whether priority should be given to a subjective-static or to an objective-dynamic interpretation of the constitutional text. The majority opinion is that the constitution is a legal act that should encompass the legal life in a state community in the long term. It would be unbearable if the legal life were encompassed by the ”will” of the historical lawmaker. This ”will” is certainly important, one element of the understanding of the constitution will always be the ”will” of the constitution-maker, which has to be established from case to case and a position has to be taken thereon. The younger the constitution, the more the ”will” of the historical constitution-maker is present. Yet this ”will” is not an independent legal source and is not automatically binding, it is just an element accompanying the understanding the constitutional text. The constitution is a long-term authoritative legal act, which is open to objective-dynamic understanding. The question is not whether this approach can be avoided; the question is which position is taken thereon and which sense is given thereto. The key ground of understanding is neither the fossilized past meaning of the constitution nor its ”prophetic” future meaning, but the possible linguistic meaning, which is a part of the world we live in. We have again arrived at legal ethics, which builds upon the established value tradition,

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yet must necessarily supplement and elaborate it with regard to what goes on at a certain time and place and in view of the responsibility to future generations.

6 Teleological Interpretation Another of the classic interpretative arguments is the teleological interpretation, which is closely connected to the objective-dynamic understanding of legal texts. A teleological interpretation determines the meaning of linguistic signs with regard to the purpose of the legal provision. From the legal point of view the path from the purpose to the final determination of the meaning of a legal rule must be determined to such an extent that the meaning of the legal rule is based on criteria contained in the legal text (in this case in the constitution and/or in statute) i.e. on criteria that can be activated by established methods of interpretation. If the legal text does not contain any support on which to base the understanding thereof, one cannot speak of interpretation: in such a case a teleological interpretation cannot replace other interpretative arguments and in itself (as the goal) create a legal rule which should serve as a means to a certain end. Such a case could at best be a legal gap that has to be recognized as such and filled in concerning its contents by the means that are available for filling legal gaps. Teleological interpretation must not stand alone as a ”shining goal” that can be manipulated in an arbitrary manner. It lies in the legal nature of teleological interpretation that it must also be based on other elements built into the legal system 9 . The greater the number of these elements determining the interpretation with regard to its meaning and the more these elements complement one another or the less they exclude or even contradict one another, the more coherent the teleological interpretation is. The task of the interpreter is to work out these criteria, to combine and evaluate them and to substantiate a solution he accepts as the one carrying the greatest weight and the most reasonable one. It is natural and legal that the interpreter first looks for the criteria concerning the purpose of a legal rule in the legal text itself. Logical interpretation will tell him whether the criterion is consistent and will help him to include, by persuasive arguments, also cases that are linguistically not directly regulated

9

See. e.g.: Müller Friedrich, Christensen Ralph: Juristische Methodik, 8th Edition, Berlin 2002, pp. 175-279

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(e.g. by argumentum a contrario). Historical interpretation will draw his attention to the purpose attributed to the legal text (legal rule) by the lawmaker or to the purpose determined by the historical circumstances that gave rise to the legal text and in which circumstances the legal text originated. In a broader sense historical interpretation will also open the dilemma whether the interpreter is bound by ”the will of the historical constitution-maker”, ”the will of the actual constitution-maker” or by the purpose the independent text has acquired by the time of the interpretation (objective-dynamic interpretation). In this broad range of possibilities, which may also be divergent and contradictory, systematic interpretation will draw attention to the meaning of legal principles, to the meaning of the legal rule with regard to its position in the system, and to the ”internal logic” combining the parts into a whole and thereby determining them with regard to the purpose. An ideal situation is when these and other interpretative arguments act in accordance with one another and thereby confirm that the legal text has a relatively clear and definite meaning. In legal practice, however, it often happens that the arguments do not seem to work together and make it possible to discover two or even more meanings of a legal text. In the event of a collision between the arguments, the argument of purpose (teleological argument) carries special weight. It is generally accepted in theory and legal practice that in such a situation, among several linguistically possible solutions, the one best corresponding to the purpose of the legal rule has to be chosen. A necessary condition is, of course, that this is not the purpose that the interpreter presupposes or even desires, but that this is a purpose that is already expressed by the legal text or which can be understood from the text and its teleological context to a relatively (i.e. sufficiently) defined extent.

V The Importance of Legal Principles The limits and the orientation of constitutional possibilities are also determined by the legal principles that have already been mentioned several times. In positive-law theory and in legal practice legal principles are often not sufficiently observed. For many the main legal guideline is still the legal rule (for some, even just the ”legal regulation”, ”legal provision”, ”constitutional provision”, ”article” of constitution, etc.) and not also the legal principle, though both legal guidelines are closely connected to each other: rules without principles

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would lose their direction (as well as their inner substance) and thereby fossilize, principles without rules would lose their variety with regard to content (as well as their foreseeability and the firmness of their meaning), which would result in unprincipled and arbitrary legal adjudication. In short, the law is a system of legal principles and legal rules and within this whole there are differences that have to be considered. For instance, the following differences are important for the interpretation of the constitution. It is in the nature of legal principles that they are value criteria put into effect by legal rules. The constitution-maker and the legislature operationalize the constitutional principles: the former does it within the constitution itself, which is a system of constitutional principles and rules, and the latter does it by statutes which, with regard to their content, are subordinate to constitutional principles and constitutional rules. The legislature’s field of decision making is very broad. As regards legal principles, it reaches from a lower limit, which already entails that a statutory rule is in conflict with a constitutional principle (e.g. with the principle of a state governed by the rule of law or with the principle of a social state) to an upper limit, which can be as high as possible (e.g. the Disability Insurance Act may encompass a very high degree of social values). Actually, the upper limit is an optimum that can never be reached 10 . Legal principles are characterized by a high degree of abstractness. The abstractness is so high that neither all cases to which the legal principles refer can be foreseen in advance, nor can it be said in advance to what extent individual principles should be binding for concrete life cases. In a concrete case it can happen that for the relevant factual elements several principles are applied at the same time (though with a different degree of intensity, which colours different legal principles to such an extent that they are not mutually exclusive). In a concrete case the court can decide to exclude one or several principles if some other principle proves to be stronger (e.g. the right to reverence, which is an element of the right to privacy, has priority over freedom of expression). In the German constitutional-court practice the ”Lebach judgement” caused lively debate. In this judgement the court gave priority to the protection of personality over freedom of expression (information). A documentary showed how four persons were killed because of the theft of some weapons. The convicted person, who aided and abetted the felony, was named several times in 10

See: Alexy Robert: Theorie der Grundrechte. Frankfurt/Main 1986, pp. 75-76

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the film and his picture was shown as well. At the time when the documentary should have been televised he was due to be released from prison. If the film had been televised, his resocialization would have been endangered. The regular courts did not substantiate his claim that the documentary should not be televised. In the proceedings of his constitutional complaint this was done by the Constitutional Court. It evaluated the opposing rights as principles and was of the opinion that, in view of the circumstances of the case, such an intensive invasion of the protection of personality would take place that the freedom of expression (information) must give way to the protection of personality 11 . A peculiarity of basic (human) rights is that each of them is based on a suitable principle it operationalizes as a legal rule (right). If two rights are in conflict, first a conflict of two principles arises (e.g. a conflict between the protection of personality and freedom of expression). It depends on the nature of the principles and on the characteristics of the life case whether the two principles can co-exist (in any proportion) or whether one of them must give way to the other. Behind a conflict of two rights another, even stronger conflict takes place, namely of two principles that make it possible to arrive at a legal decision. Here we are dealing with the doctrine that human rights and basic freedoms are only limited by (those) rights of others that are mutually limitable in view of legal principles, and not by the rights of others that are, in view of legal principles, evidently weaker than another (stronger) right. At first glance it seems that the situation in the latter case is the same as when choosing among several legal rules in order to solve a concrete life case. The basic difference lies in the circumstance that in choosing among several possible rules, more emphasis is placed on the comparison of the factual and normative constituent elements, whereas in choosing between two or more principles more weight is given to the valuation itself. Also in the former case valuation, possibly even important valuation takes place, yet to an extent that is less intensive than with legal principles. In both cases we finally subsume and deduce legal consequences; in the case of legal rules the interpretation path is usually shorter and less complex, whereas with legal principles the interpretation procedure is generally more prolonged and more complex. In either case the decision is only possible when the rule/principle is chosen and when at the same time its meaning  however unpretentious it may be  is accepted. 11

BVerfGE 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

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VI Mode of Application It is in the nature of the legal (also constitutional) understanding of legal texts that one can understand them differently than the constitution-framers. The understanding of a legal (constitutional) text is always a part of corresponding broader and narrower contexts, and the interpreter himself is also a part of these contexts. The broader context corresponds to the historical and cultural tradition and to the time of activity, the narrower context is of a more legal nature and is co-determined by the constitutional and the entire state-law orders, by the dominant political ideology and values, by legal theory and legal dogmatics, by the education of lawyers, and the manner of legal thinking (both are important elements of the lawyers’ pre-understanding), by the court and constitutional-court practice, and finally by the concrete case that gave rise to the interpretation. The fact that a legal text (the constitution) can be wiser than its author and the interpreter wiser than both of them 12 is not bad in itself. It is simply a property of understanding, which is a never finished process and is thus never given in advance as a closely rounded fact. Any understanding of a legal text is, as has already been stated, caused by concrete life cases (the case can also be the text of a statute that has to be in conformity with the constitution). Also Gadamer’s legal hermeneutics pays attention to the mode of application: ”The jurist understands the meaning of the law from the present case and for the sake of this present case” 13 . It is characteristic that the application is no later application of a given generality, which was initially understood in itself, to a given case, but the application is only the real understanding of the generality itself, which the given text represents for us 14 . Furthermore: ”The judge who adapts the transmitted law to the needs of the present is undoubtedly seeking to 12

Radbruch Gustav: Rechtsphilosophie. Studienausgabe. Ralf Dreier and Stanley L. Paulson (eds) Heidelberg 1999, pp. 107 13 Gadamer Hans-Georg: Truth and Method. London, New York 2004., pp. 322, [”Der Jurist fasst den Sinn des Gesetzes von dem gegebenen Fall her und um dieses gegebenen Galles willen”,Gadamer Hans-Georg: Wahrheit und Metode, 6th edition, Tübingen, 1990, pp. 331.] 14 Gadamer Hans-Georg: Truth and Method. London, New York 2004, pp. 336, [”Applikation ist keine nachträgliche Andwendung von etwas gegebenem Allgemein, das zunächts in sich verstanden würde, auf einen konkreten Fall, sondern ist erst das wirkliche Verständnis des Allgemeinen selbst, das der gegebene Text für uns ist”, Gadamer Hans-Georg: Wahrheit und Metode, 6th edition , Tübingen, 1990, pp. 346.]

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perform a practical task. (...) The judge seeks to be in accord with the ’legal idea’ in mediating it with the present” 15 . If one thinks about it, the new understanding of the constitution is not necessarily better than the previous one, yet it can certainly be a different understanding if the case and the circumstances of the understanding have changed. It is a special feature of legal understanding that it must remain within the framework of the possibilities offered by the constitutional text itself and that it must – within these limits – look for a solution that is typical for the society as much as possible. However, the constitutional text itself cannot guarantee that these requirements will be considered (and filled with contents) at all and how this will be done; if the text is of good quality (with regard to the language and to the thinking), it can pave the way for legal theory and legal practice to be able to fulfil these requirements. Legal theory has much room to manoeuvre. It can be very important in the educational as well as in the theoretical field. In the educational field it is important whether it contributes to making lawyers capable of independent and problem-orientated thinking. Problem-orientated legal thinking is responsible thinking, which each time also requires reasons (arguments). High creative possibilities can also be found in the field of legal theory (in a broader sense of the word). A good understanding of the constitution is always based, inter alia, on appropriate legal theory and on appropriate legal dogmatics. An interpretation of the constitution without considering concrete constitutional-court cases cannot work. Mutatis mutandis, this is also true of a constitutional-court practice that is deaf to legal theory. The standard (typus) quality of constitutional rules is sometimes just hinted at in the constitution itself and can only completely come to life and gain its (possibly new) meaning in contact with concrete cases. Legal adjudication is convincing with regard to its content and legally safe if there can be achieved a dialogue and a suitable creative tension between a practice that can listen to the views and intentions of the theory and a theory that knows where the real law is created [cf. e. g. Maunz/ Dürig’s Grundgesetz Kommentar (Commentary on the German Constitution)].

15

Gadamer Hans-Georg: Truth and Method. London, New York 2004., pp. 324, [”Der Richter, welcher das überlieferte Gesetz den Bedürfnissen der Gegenwart anpasst, will gewiss eine praktische Ausgabe lösen. (...) Er sucht dem ’Rechtsgedanken’ des Gesetzes zu entsprechen, indem er es mit der Gegenwart vermittelt”, Gadamer Hans-Georg: Wahrheit und Metode, 6th edition , Tübingen, 1990, pp. 333.]

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A new and different understanding of the constitution is only permissible when we have sound (conclusive) arguments for diverging from the established constitutional-court practice, for changing it and/or bringing new nuances into it.

VII Links to Other Entries The entry Constitutional Interpretation has many links to other entries. The strongest connections include the entries Constitution, Constitutionalism, Judicial Review, Statutory Interpretation, and Methods of Interpretation, and within this framework, more broadly connected are the entries on Constitutional Principles, Constitutional Rights and Constitutional Duties, Constitutional Values, Democracy and Modern Law, Law and Politics, Rule of Law, State, etc. Those entries which treat the contents of the constitution and various concepts of how a state should operate are especially connected to this entry. The entry Constitutional Interpretation is focused on the interpretation of the constitution as a written (formal legal) act. The entries on Constitutional Conventions, which are especially characteristic of the United Kingdom, and on the Constitution of the United States, which due to the interpretative role of the Supreme Court actively contributes to a modern understanding of constitutionality and the rule of law, both deserve separate treatment. The item Constitutional Interpretation in the UK and USA is an entry of special importance as well.

Literature

Aarnio 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. 2nd Edition. Nachwort: Antwort auf 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.

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Bobbitt Philip: Constitutional Interpretation, in: Kermit L. Hall (main ed.): The Oxford Companion to the Supreme Court of the United States. New York, Oxford 1992, pp. 183-190. Bogdanor Vernon (ed.): The British Constitution in the Twentieth Century. Oxford 2005. Canaris Claus-Wilhelm: Systemdenken und Systembegriff in der Jurisprudenz. 2nd Edition. Berlin 1983. Dicey A. V.: Introduction to the Study of the Law of the Constitution. 8th 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. 2nd Edition. Frankfurt/Main 1972. Feteris Eveline T.: Fundamentals of Legal Argumentation. Dordrecht, Boston, London 1999. Gadamer Hans-Georg: Wahrheit und Methode. 6th Edition. Tübingen 1990. ---: Truth and Method. London, New York 2004. Hart H. L. A.: The Concept of Law. 2nd 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). Praha 2003. Isensee Josef, Kirchhof Paul (eds.): Handbuch des Staatsrechts. Band II. Heidelberg 1987. Band VII. Heidelberg 1992. Jovičić Miodrag: O ustavu (About the Constitution). Beograd 1977. Kant Immanuel: Kritik der praktischen Vernunft. Suhrkamp: Frankfurt/Main 1989. Kelsen Hans: General Theory of Law and State. Cambridge, Massachusetts 1945. Koch Hans-Joachim, Rüβmann Helmut: Juristische Begründungslehre 1982.

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Larenz Karl: Methodenlehre der Rechtswissenschaft. 5th Edition. Berlin, etc. 1983. 6th Edition: 1991. MacCormick Neil D., Summers Robert S. (eds.): Interpreting Statutes. A Comparative Study. Aldershot, etc. 1991. Müller Friedrich, Christensen Ralph: Juristische Methodik. 8th Edition. Berlin 2002. Pavčnik Marijan: Juristisches Verstehen und Entscheiden. Wien, New York 1993. 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 Humanität und Recht, in: Gröschner Rolf, Morlok Martin (ed.): Recht und Humanismus. Baden-Baden 1997, pp. 25-52. Starck Christian: Die Verfassungsauslegung, in: Isensee, Kirchhof (eds.) 1992, pp. 189-229. ---: Praxis der Verfassungsauslegung. Baden-Baden 1994. Stelmach Jerzy; Brożek Bartosz: Metody prawnicze. Zakamycze 2004. Summers Robert S.: Statutory Interpretation in the United States, in: MacCormick Neil D., Summers Robert S. (eds.) 1991, pp. 407-459. Winkler Günther: Studien zum Verfassungsrecht. Wien, New York 1991.

2 Slobodan Beljanski, PhD Attorney of Law, Novi Sad, Serbia

POUND’S CONCEPT OF LAW STANDARDS Abstract: American legal theoretician Roscoe Pound was among the first to point to the fact that law, in addition to rules, principles and concepts, governs life also by the criterion which we refer to as law standards. We use them, he believed, in the individualization process while practicing law, when we are forced to trust experience and recourse to intuition. By criticizing realistic radicalism, Pound defined law standards as judgments having a relative character, based on common sense and moral ponderation. In his next phase, Pound, without abandoning the basic postulate that law standards belong to the application and enforcement of law, notices that their function cannot be singled out from the field of law creation and that their content cannot be deprived of ideals. Norms are part of the corpus of competent directives for decision-making. However, having in mind that their starting points are accepted ideals, a procedure for reaching such ideals and methods of their use is by their character of legislative nature. In such a way, interpretation in law starts to be of use to creation while passing a judgment to setting goals based on ethics. In this paper the author analyses Pound’s postulates and concludes that disregarding the fact that his idea of law standards cannot be identified with contemporary meaning of this phenomenon, in things most closely linked with reality and to which answers can be given only under shadow of consistent relativism, Pound presents us with the absolute and the contradiction of metaphysics. The metaphysical dimension of this concept comes from its formal a priori nature: it is taken in advance that it includes only maxims with potential justice and universality. This concept simultaneously qualifies legal norm as appropriate and desirable and quantifies critical measure of its acceptable universality. Metaphysics of law standards is an expression of our incompletion of law and unattainability of justice. Key words: law standards, moral ponderation, relativism, ideals, metaphysics

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The frequent and wide usage of the concept law standard is, to say the least, different from its meaning: it is neither uniform enough to make law its basic feature, nor is it specific enough to use it to identify law. Law standard, namely, equally includes customs, generally accepted rules, principal norms of positive law and systems of juristic interpretation. The original use of this concept in the contemporary theory referred to the juristic interpretation. Law standards were used only as a methodical phenomenon in the ”technique of law”, and not as a source of law. That is why they were deduced to a judge’s decision in the service of legality. One of the supporters of this interpretation claims that, in using standards and directives, the judge does not depart from the principle of legality, he applies legal concepts in a way which corresponds to their typological nature. 1 Such comprehension of law standards would be more precisely termed as standard ways of interpretation. American law theoretician Roscoe Pound is said to be among the first to point to the fact that law, in addition to rules, principles and concepts, governs relationships in a society by measures we call law standards. We use them, he wrote, in the individualization process when practicing law, when we are forced to rely on our experience and resort to intuition. This approach has led to the conclusion that law standards become prominent only when using discretional authorities and assessing circumstances which are characteristic of individual cases. In his criticism of realistic radicalism, Pound has ascribed three features to law standards: they contain a moral judgment about people’s behavior, instead of exact legal knowledge, they demand the judgment of common sense, and they are relative regarding place, time and circumstances. 2 It is easy to see that Pound’s categorization is tautological and conclusive. Each of the three listed features is deduced to the level of the same class and explanation, while every latter feature follows from the former. That is actually why Pound claims only that law standards are the judgments of relative character, based on common sense, intuition and moral judgment. His assertion is the consequence of an understanding that moral judgment belongs to the realm of common sense, that

1

Frank, S., Standardi i direktive u kaznenom pravu, Arhiv, 5-6/1939, p. 423-432. Pound, R., Introduction to the Philosophy of Law, New Haven, 1961, cited in: Paund, R., Uvod u filozofiju prava, Podgorica, 1996. transl. by N. S. Krznarić, p. 101-102; Jurisprudence, cited in: Paund, R., Jurisprudencija, I, Beograd – Podgorica, 2000, transl. by Đ. Krstić, p. 360. 2

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common sense relies primarily on intuition, and that intuition operates in the sphere of relative values. Whether because he realized this weakness or because of the unfinished nature of his assumptions, Pound did not ascribe any particular credits to his name regarding the introduction of law standards in the systematics of law. On the contrary, he stressed that law standards appeared even in Roman law and natural law. That is because he referred to Cicero’s attitude that the decision on actiones bonae fidei, because of too much freedom allowed by their interpretations, should be given to judges with firm beliefs and strong personalities. Besides that, Pound’s usage of this concept is not devoid of contradictions. How can anything standard be deduced from a string of conditional accidences connected with our immediate comprehension and more or less arbitrary sense of values? Isn’t intuitive opinion a paradox? Aren’t standardized views of the world, based on any known eschatology, merely castles in the sand? Let us just remember a bitter remark of a contemporary thinker that none of the essential philosophical questions have been answered up to now and that no standards in our civilization give way to realists over nominalists, critics over supporters of the semantic concepts of truth. How is it then possible to rely on ”standards” which create judges’ decisions and on which people’s destinies directly depend on? Although he himself does not resort to such division, we could say that Pound determines law standards in two ways. In the material sense he considers them to be standards of behavior proscribed by the law. In the processual sense he regards them as part of the corpus of relevant points in decision making. 3 In both cases the stress lies on the parameters of value. Whether this is about the criteria of behavior or the criteria of decision making, law standards have arisen out of our liberty and are directed against that liberty. Originating in the realm of free will, where we are allowed to act or decide either this way or that, standards are the result of the idea that in certain judgments a new limiting pattern should be established, a pattern which would refer us or direct us more strongly on how to behave or decide in certain situations. If without hurting the law we can act and decide in more ways than one, why is it still better to act and decide in that one certain way? What prompts us to that? What are our guidelines in making that choice? The search for answers to these questions is as old as the theory itself. Even Aristotle considered that there is no comprehensive law and that is why 3

Ibid., p. 398.

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the essence of justice is in compensating the generality or incompleteness of law with making special decisions – ψήφισμα. 4 Even Pascal, who represented a seemingly opposite attitude that nothing is so wrong as laws which correct mistakes, stuck to Aristotle’s postulate that the one who adjusts laws with reference to equity actually abides to the justice he imagines. 5 Things are more or less clear regarding norms with an immediate discretional authority, such as the one concerning responsibility based on equity. In obligational law, for example, it is proscribed that, when the interests of equity demand so, the court will decide that the damage shall be compensated by the damaging party who is not responsible, or the parent who bears no responsibility for the damage inflicted by a minor, having in mind the material resources of the damaged and the person whose burden the damage should be. Far more complex are the norms which do not invoke only one principle, but also contain a reflexive disjunction of two or more principles. In the contemporary accusatory criminal procedure it is the law standard that the prosecutor must prove that the factual and legal basis of the culpability are beyond any reasonable doubt and that the court in case of any doubt will rule in favor of the defendant. The law standard, however, as a supporter of Pound’s interpretation would say, is not only in the initial goal of the rule on the burden of evidence, but also in the final aspects of delimiting suspicion and conviction, which means that in the method of conclusion which precedes decision making and which helps form the awareness of what makes a certain content beyond any reasonable doubt or, which is one step further (although logic tells us it is one and the same), which helps form the awareness that a certain content has not progressed further than reasonable doubt. In contemporary law standard is also the right of the defendant to have a lawyer. This right, although absolute, from the aspect of the one it is intended for is neither equally available nor equally desirable. There are defendants who consider that they need the help of a competent person, but do not meet the conditions necessary for the court to appoint a lawyer to defend them or do not have the means to hire a lawyer and pay the costs. There are also defendants who do not want a lawyer, although it is the court’s duty to appoint them one. Our Law on Criminal Procedure proscribes that in the former case, except in case of the lightest criminal offences, the court will appoint a defense lawyer following the demand of 4 5

Aristotle, Nicomachean Ethics, 1137b. Pascal, B., Pensées, 294.

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the defendant if it is in the interest of justice (article 72, paragraph 1, Law on Criminal Procedure). In the latter case the only solution our Law offers in the imposition of a defense lawyer, despite the fact that the imposition of the right which is rejected is always unjust to the recipient himself. The standard of right to the formal defense, therefore, includes the principles for abstractly conditioned, yet determinable exceptions to the rule, or the exceptions to the exceptions which ultimately lead to the negation of the right itself. The Hague Tribunal had to create solutions for the defendants who rejected a lawyer and thusly created a standard on the right and standard on the aberration of the right. The right to privacy, the freedom of religion, the freedom of expression, the prohibition of discrimination and the right to education are material law standards of the modern civilization. When they are conflicted, Pound’s formula may be of use. A typical example is a recent decision of the European Court in the Sahin case. In March 1998 Leila Sahin was banned from taking an exam and attending classes in the Medical School in Istanbul because she did not want to stop wearing a headscarf. The ban was based on an earlier order of deputy principal of University, in accordance with the authority proscribed by the Turkish law and confirmed practice of the Constitutional Court of Turkey, which bans male students with beards and female students with headscarves from attending lectures, courses and exercise classes. In the verdict of June 29 2004 the Council of the European Court ruled that there was no violation of Article 9 and that in connection with this Act there is no violation of Articles 8 and 10 of the European Convention. Referring to the fact that this is a problem which concerns the questions of general importance, but is also of significance for the interpretation and application of the Convention, Leila Sahin used the right from Article 43 of the European Convention and demanded that the case be brought to the Grand Chamber. Although they accepted that the prohibition is a limitation of the rights to the freedom of religion and to education, the Grand Chamber concluded that there was no breach of the European Convention: the intervention of Turkish authorities was in the domain of the rights of a contracting country to free assessment, in which case the essence of the right to education was not harmed and in the intervention of Turkish authorities in one’s private life, freedom of convictions and freedom of expression was predictable and proportional to the justified aims of a democratic society to protect the freedoms and rights of other people. As it turns out, in all of this the border of our freedom is directed at ideals: the ideal of justice, the ideal of the essence of law, the ideal of causes of a

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democratic society. At the same time the creation and interpretation of law become inseparable because in law there is almost no way of creating and interpreting which, to use Fuller’s words, can be free of aspiration or inner morality. Pound himself will later, without abandoning the essential principle that law standards belong to the application and implementation of law, touch upon a thesis that their function cannot be separated from the domain of law creation and their content cannot be devoid of ideals. 6 All those who create or apply law are referred to an idealized picture of the social order which, as a basic reality, reflects legal institutions, legal rules and legal education. 7 In law there is a corpus of accepted and authoritative ideals. This element is deduced to an image of social order of a certain time and place, encompasses a law tradition characteristic of that order and, consequently, of the purpose and aim of the social control which represent the basic frames of interpretation and application of regulations and especially law standards. 8 Courts and individual lawyers in any developed legal system have always acted on the basis of something higher than a formal whole of current regulations. Even a lawyer analyst, Pound considered, in practice introduces into his scientific ponderation an ideal pattern and thusly sets an ideal plan. When such ideal images acquire a certain constancy in the court tradition, they become part of law, just like regulations. Actually, they give to regulations their living content and in difficult cases they become a final basis for the selection, shaping and application of legal material in decision making. 9 Ross determined this viewpoint as jurisprudential idealism. In this type of idealism, he ascertained, the knowledge of law is simultaneously based on the outer experience and on a priori judgment. Law is a phenomenon of reality in that it is created by people and in that it depends on the exterior factors of authority. However, in order for this fact to become valid, it must be given and undeductible by immediate intuition of sense and by the set demand. Law is both a phenomenon and a validity, unlike moral, which is pure validity. 10 6

Pound, R., Jurisprudence, cited in Paund, R., Jurisprudencija, II, p. 398 ff; Ideal Element in Law, Indianapolis, 2002, p. 31, 371 ff. 7 Pound, R., Interpretations of Legal History, New York, 1923, p. 5. 8 Pound, R., Jurisprudence, cited in Paund, R., Jurisprudencija, I, p. 354. 9 Ibid. I, p. 357 ff 10 Ross, A., On Law and Justice, London, 1958, cited in Ros, A., Pravo i pravda, Beograd, 1996, transl. by M. Ivović, p. 89.

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That is why law is never complete or, to be more precise, that is why in law there are always things that cannot be reached. It is an expression of an imperfect anthropogenous desire for perfection. In his considerations of the phenomenology of law Alexandre Kojéve thought this is about a desire directed at another desire, about an anthropogenous desire which establishes a virtual man and his potentiality, which is the reason he marked it as the source of the idea of justice, in case this desire contains a desire to confess. 11 In this sense we have not gone far from Aristotle’s postulate of the justice we imagine. Neither does Kant, when he finds the basis of categorical imperative in the principle which is the source of the form of action whose essential good consists of disposition and not of motives and effects. He therefore directly says that everyone is free in a practical sense only if they act under the idea of freedom and that freedom is just an idea of the mind whose objective reality is always in itself doubtful. 12 The same is the source of Jung’s understanding that the unattainablity of an ideal personality, as a full realization of the whole of our being, does not undermine that ideal because ideals are not aims but guidelines. 13 Pound thought that law is a social institution which helps order human behavior within a politically organized society with the aim and in a manner to sacrifice as little as possible to satisfy as many needs, demands and expectations as possible. This, in his opinion, can be achieved through social control or constant ”social engineering” – constant, more complete and more efficient eradication of destruction and conflicts which happen among people when they enjoy the comforts of everyday life. 14 It may be surprising at a first glance that these viewpoints were not criticized by the greatest critic of utopian engineering, Carl Popper. On the contrary, Popper commended Pound, not only on creating the concept of ”social engineering”, 15 but also on the closeness of Pound’s viewpoints to his own 11

Kojève, A., Esquisse d΄une phénomenologie du droit, Paris, 1981, cited in Kožev, A., Fenomenologija prava, Beograd, 1984, transl. by Z. Stojanović, p. 250 ff. 12 Kant, I., Grundlinien zur Metaphysik der Sitten, cited in Kant, I., Zasnivanje metafizike morala, Beograd, 1981, transl. by D. Basta, p. 55, 99, 110. 13 Jung, C. G., Gesammelte Werke, Olten, 1971 (Jung, K. G., Duh i život, Novi Sad, 1977, transl. by D. and P. Milekić, p. 260.) 14 Pound, R., Introduction to the Philosophy of Law, op. cit. p. 89-90. 15 Popper thought that Pound was the first to use the expression ”social engineering” in the Introduction to the Philosophy of Law, which is seen in the following text: ”As for the present-

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work in the domain of social ”step by step engineering”. 16 Unlike utopian engineering where before taking any practical action, an ultimate political aim or ”Ideal State” is formed, a ”step by step engineer” will rather acquire a method for detection and fight against greatest and most urgent evils in a society than a method for detection and fight for his greatest and ultimate good. 17 And really, Pound very early warned about the tendency of resorting to the arbitrary power of the government and using ”justice without law”, where executive and even legislative ”justice” is abused. 18 Trying to find a compromise formula for defining the concept of law, Pound assessed that the union of different conceptions is possible with the aid of the idea of social control. Law is, he concludes, the control of each of us through the pressure of people close to us, the control which is both unconscious and involuntary and immediate and directed. This pressure, more and more organized and directed, establishes and maintains our mastering of human nature. The province of jurisprudence is social control through a systematic application of the force of a politically organized society. This implies the existence of a legal system which comprises valid material for the action of courts and existence of court and administrative procedure that allows reasonable prediction. 19

-day goals, I have an inclination in the history of law to constantly see a wider recognition and satisfaction of human needs, demands or desires through social control, a much more comprehensive and efficient provision of social interests, a constant and more complete and more efficient eradication of devastation and prevention of conflicts in man’s enjoyment of the pleasures of life – in one word a constant and much more efficient social engineering” (Pound, R., ibid, p. 90). 16 Popper finds that what he calles, relying on Pound, ”social engineering” corresponds to Hayek’s suggestion that within the ”step by step engineering” the dire necessity is the establishment of the legal frame (Popper, K., The Open Society and Its Enemies, Princeton, New Yersey, 1971, cited in Poper, K., Otvoreno društvo i njegovi neprijatelji, Beograd, 1993, transl. by B. Gligorić, I, p. 377), (Hayek, F. A., Law, Legislation and Liberty, cited in Hajek, F. A., Pravo, zakonodavstvo i sloboda, Beograd – Podgorica, 2002, transl. by B. Gligorić, p. 157). Hayek himself says, however, that he restists to the expression which marks a technological problem of the reconstruction based on the total knowledge about physical data, the expression used here to mark an experitmental attempt to improve the functioning of a part, regardless of how the structural whole is concieved (Hajek, F. A., Pravo, zakonodavstvo i sloboda, Beograd – Podgorica, 2002, translation B. Gligorić (Hayek, F. A., Law, Legislation and Liberty), p. 157). 17 Popper, K., op. cit. I, p. 209-210. 18 Pound, R., The Spirit of the Common Law, Boston, 1921, p. 72. 19 Pound, R., Jurisprudence, op. cit., I, p. 13.

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Although he referred to Alf Ross, in this definition it is hard to find Ross’s determination. Ross himself did not show a similar kindness. Rather, he groups Pound alongside Stone, Keaton and Hochfeld as creators of eclectic definitions, who include logical-analytical, ethical and sociological problems into jurisprudence. 20 Reasonable prediction needs not only a stable and coherent process law, but also the same kind of law which makes the valid material for decision making. In addition, the reach of law are not just decisions of a court or an administrative body, but also the arrangement of relationships which precede these decisions. Standards are part of the corpus of valid guidelines in decision making, but since their starting points are accepted ideals, the procedure of reaching such ideals and the way they are used are in their character of legislative nature. Since the interpretation enters the sphere of law creation, the judicial function intertwines with legislative. Pound’s contemporary and associate for a while, Hans Kelsen, had a different view of this. In responding to Karl Schmit’s accusations that he is ”one of the zealots of blind normativism” and supporters of normativist and formalistic logic, Kelsen returned to his old thesis that the identification of law and justice is a political and not a scientific tendency which aims at justifying the given social order. The phenomenon Pound calls law standards is nothing else to Kelsen but a legally non-binding postulate which exists only to the extent we allow free evaluation. 21 Kelsen called the field of free evaluation an intentional indeterminacy of the act of law application, the indeterminacy contained in the intention of

20

Ross, A., On Law and Justice, London, 1958, cited in Ros, A., Pravo i pravda, Beograd, 1996, transl. by M. Ivović, p. 51. 21 ”If we are talking about norms that have not been positivized”, Kelsen wrote, ”but should, since they represent ’justice’, become positive law (although the defenders of these principles in a more or less clear way already consider them to be ’law’), then there is nothing else but legally non-binding postulates (which are truly just an expression of group interests), directed at the bodies which have been entrusted with the creation of law. And not just legislative bodies... but also lower degree legislative bodies which, however, have a decreased possibility to the same extent as their function bears the character of law application, but which still exists, and to the same extent as free evaluation; therefore, with the judicial system and management when it is necessary to choose among several possibilities of interpretation” (Kelzen, H., Wesen und Entwicklung der Staatsgerichtsbarkeit, and Wer soll der Hűter der Verfassung sein?, cited in: Kelzen, H., Ko treba da bude čuvar ustava, in the book Norma i odluka – Karl Šmit i njegovi kritičari, Beograd, 2001, translation by D. Basta, p. 273).

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the one who brings regulations to continue the process of determination from a general norm to an individual norm. Having in mind that the attempt to solve the conflict between will and expression is always faced with failure and that all methods of interpretation lead to only one possible and never to the only correct result, then if there is a desire to limit the authority of courts and thusly the political character of their function, the maneuver space for free evaluation that laws allow for their application must be as narrow as possible. 22 The introduction of ideals into law, which also means the inosculation of law and moral principles, brings us to the doorstep of metaphysics. However, we do not have in mind the metaphysics within the idea of a ”historical God”, Austin’s notion of divine orders which we become aware of through revelation or an index of usefulness, or the idea Borges played with when he ”proved” that God exists because only he knows the exact number of birds that we saw during a vision we had when our eyes were closed (Argumentum ornithologicum). What we have in mind is an attempt to overcome a failure in the rational opposition to the demand of utilitarists to draw a strict line between the law as it is and the law as it should be. Even those who invested a lot of effort into this discussion have faced the conclusion that blurring the distinction between law and morals leads to disputing everything consistent in the legal rule and putting complete and clear rules on the same level of questioning as the problems whose solutions depend on free evaluation. 23 The result is a confession that the attitude of utilitarists has both a moral and intellectual value as well as a dim appeal that they should, together with utilitarists, acknowledge that laws make the law, but that they are sometimes too bad to be abided by. 24

22

Kelsen, 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 čuvar ustava, in the book Norma i odluka – Karl Šmit i njegovi kritičari, Beograd, 2001, translation by D. Basta, p. 272-273. 23 After a detailed analysis, Hart has concluded that the dimming of this difference by a mysterious claim about the existence of and identity between law as it is and law as it should be means suggesting that all legal questions are fundamental, both those from a half-shadow (penumbra) and those which are created within the hard core of rules with an established meaning (Hart, H. L. A., Positivism and the Separation of Law and Morals, in Essays in Jurisprudence and Philosophy, Oxford, Clarendon Press, 1983, cited in Hart, H. L. A., Ogledi iz filozofije prava, Beograd, 2003, transl. by S. Stepanović Todorović, p. 71, 80). 24 Ibid., p. 87.

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Resorting to a concept of metaphysics, already quite compromised in law, we relied on Kant’s understanding of metaphysics as a ”pure” idea (this time the idea of law), limited to the objects of reason and deduced from the a priori principle. 25 Is such an approach at all possible today? And is it possible when it comes to law standards? From Pound’s learning we could conclude that he answers positively or, if asked so, would. In spotting unmistakably the effect of the metaphysical ideal in the history of law, especially in the 19th century when, staying beyond the reach of legislative innovation, people idealized the principles of general law guaranteed in bills of rights 26 , he considered that such idealized images, upon acquiring a certain level of stability in court and professional tradition, just like regulations, become part of law, that in the most difficult cases, when solving problematic situations, they become key guidelines for choosing, shaping and applying law material, and that making up theories used to banish such phenomena from the law is a self-delusion, a futile fight against the phenomenon of the greatest importance for the work of the judicial system. 27 If we go one step back from the procedure of interpretation to the manner of experiencing and understanding a formed set of facts, we shall face a condition that Toynbee marked as the immeasurability of life and law, the immeasurability that almost leads us to give up on trying to reconcile law and justice, legal norm and demands of morals. The effort to make law impersonal can be fruitful only at a price of treating human souls, which are individual and unique, as mass products and standardized inhuman objects. On the other hand, a complete accommodation of law to personal circumstances would lead to a regretful distancing from the impartiality which is the essence of human justice. 28 A similar aporia is the basis of Dilthey’s skepticism – a conviction that in understanding there is something irrational that cannot be presented in any logical patterns 29 , as well as of Gadamer’s postulate about the essential connection of juristic hermeneutics and legal dogmatics, a connection where 25

Kant, I., op. cit., p. 16. Pound, R., Jurisprudence, op. cit., I, p. 357. 27 Ibid. I, p. 358, Pound, R., Law and Morals, Chapel Hill, 1926. 28 Toynbee, A., A Study of History, London, cited in Tojnbi, A., Proučavanje istorije, Beograd, 1971, II, transl. by M. Lukić, p. 71. 29 Dilthey, 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. 26

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primacy belongs to hermeneutics. When Gadamer stresses the unattainability of the theory of complete legal dogmatics and the necessity of a juristic intermediation in which to understand and interpret the law is to know and acknowledge its valid sense (geltenden Sinn), then in the valid sense there is always much more than there is in the law. 30 In any case, Pound also notices the failure of attempts to remove a degree of indeterminacy from the norms with a detailed and authoritatively set content, where this indeterminacy is characteristic of law standards. 31 Continuing in Pound’s footsteps, we could conclude that the concept of law standard refers to that which belongs to an ideal image of law ex aequo et bono, which has in its elementary shape established more as an idea than as a legal fact, and what could represent a minimum of universality of a legal rule, independent of whether is remains in the domain of theory, if it is a clause in a contract, or if it is part of a positive internal or international law. A metaphysical dimension of this concept arises out of its formal a priori nature: it is taken in advance that it encompasses only the maxims with the potency of equity and universality. Its a priori nature is based on the projection of generality, on the super-empirical capacity of the mind to set synthetic demands and on the necessity for such demands to be set, even when we are aware that they are beyond reasonable reach, or just because they are such, for those who do not reconcile with this sort of illusion, still beyond reasonable reach. This concept simultaneously qualifies legal rule as purposeful and desirable and quantifies a critical measure of its acceptable generality. At the same time we must not be fooled by the fact that the ideal we strive for is the result of sublimation of legal experience and knowledge, the advancement of individual and relational norms into rules that can be generalized, absolutized and produced into a paradigm. The experience brought into the projections of law standards comes out of the dissatisfaction and hope. The metaphysics of law standards is an expression of our unreconciliation with the incompleteness of law and unattainability of justice. It is concomitantly an eternal quest for a firm ground, for creating general and lasting criteria connected with moral purposes, in the exact place where law embraces relativity and openness, leaving room for a dynamic adjustment to circumstances.

30 31

Gadamer, H. G., Gesmammelte Werke, Bd. 1. Hermeneutik I, Tűbingen, 1986, p. 335. Pound, R., Introduction to the Philosophy of Law, op. cit. p. 103.

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

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

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3 Petar Teofilović, SJD Provincial Ombudsman of AP Vojvodina

THE CONTRIBUTION OF THE US JURISPRUDENCE TO FREEDOM OF EXPRESSION IN THE USA THROUGH THE DEVELOPMENT OF DEFAMATION LAW I Introductory Remarks Freedom of expression in the USA has the status of a fundamental right, one of the most important ones. Both in theory and in practice it is considered to be a necessary prerequisite for a full enjoyment of the majority of other rights, most particularly those belonging to group of political rights, and thus enjoys high level of legal protection. Legal restrictions of this freedom are rare, and are to be submitted to the highest level of scrutiny by the courts in respect of their justifications. Still, there are certain limits beyond which the statements made are not permitted. One of them encompasses the cases of defamation of others, which is considered to be an abuse of the freedom of expression. The US defamation law (incorporating both slander/libel and insult) 32 , which constitutes one of the rare exemptions from the general prohibition of the violation of freedom of expression, consists of the relevant law of 50 member states and of the federal state. Besides common law rules and written law 32

The generic term ”defamation” in common law countries incorporates both slander/libel and insult. The difference between the ”slander” (common defamation), and ”libel” (an aggravated form of defamation, in the continental law usually termed ”defamation committed by the media”, or ”public defamation”) is based on the means used to commit defamation: common defamation is completed using ”transient means” and does not leave permanent consequences (e.g. defamation committed orrally or by certain gesture), whereas libel as an aggravated form exists when a defamatory statement was made using permanent means (e.g. in writing, or in drawing, or made in the media, etc.). For details see, e.g.: H.C. Black, Black’s Law Dictionary, Note: DEFAMATION, 427 (Bryan A. Garner (ed. in chief), St. Paul, 7th ed., 1999).

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(constitution, statutes and by-laws), important source of law is the case-law (judicial decisions) of US state and federal courts. Among them, by far the most important are the decisions of the US Supreme Court about the (un)constitutionality of any legal act, regardless of whether it is a state or federal one. Its interpretations of the constitution presented in those decisions also provide a minimal uniform level of protection of free speech and press in the whole federation, apart from the differences that may exist between particular states. This article contains a brief summary of the development of the US defamation law from the establishment of the USA, with the emphasis on the contemporary US law in this area since the middle of the 20th century. Some of the most important decisions of the US Supreme Court in this area and their effects are presented in more details, as well as the doctrines that make the basis for those decisions, since they have played a key role in strengthening the protection of freedom of expression in the USA. Special attention is paid to two key issues of the contemporary US law of libel – the standards of liability for defamation, and the definition of the concept of a ”public person”. Conclusive remarks contain a resume of the article.

II The Development of the US Defamation Law One can clearly discern two main periods in the development of the US defamation law so far. The first period, starting with the establishment of first English colonies in North America and ending in the 1960s, is characterized by the domination of rules inherited from the English common law. During that time defamation was primarily a matter of civil law. 33 The emphasis in defamation cases was on the protection of plaintiff’s reputation, and the legal rules favoured the plaintiff. 33

Both in common law and in continental law systems defamation can be a tort or a crime. Criminal defamation once had a more prominent role in common law than today, particularly in the practice of the English Star Chamber during the 17th century. Still, with the development of the doctrine of defamation as a tort it gradually became primarily a matter of civil law. The criminal defamation is almost extinct today in common law countries. On the other hand, in the continental law countries this issue has been treated for centuries as a matter of criminal law whereas its civil law aspects were lesser developed. However, in the last few decades the tendency to deal with defamation through civil damages instead of criminal sanctions may be observed in continental law countries, too.

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The second period starts in 1960s and is still going on. At that time the Supreme Court, partly because of the strong impact of the human rights movement in the USA, adopts an ”activist” approach in its interpretations of the First Amendment to the US Constitution which, among others, guarantees the freedom of speech and press (hereafter: freedom of expression). Namely, it starts to base its decisions in this area on a much more liberal doctrine of freedom of expression than before, shifting the stress from the protection of plaintiff’s reputation to the protection of freedom of expression, and gradually developing an original model of legal regulation of defamation. The relevant US Supreme Court’s decisions on unconstitutionality of restrictions of the freedom of expression, that relate to the regime of defamation as well, have introduced significant, sometimes even radical novelties into the previous regime in this area. Defamation law increasingly becomes a matter of constitutional law, which led to the development of the so called ”First Amendment Law”. Although still grounded in common law rules, the contemporary US defamation law departs notably from its roots, most importantly because of the doctrines developed in the practice of US courts.

1 First period: From the Colonial Times Until 1960s – Prevalence of Common Law Rules Legal regulation of defamation in the USA has its roots in the English common law. Some authors point out that there are few areas in which the connection between the two jurisprudences is more direct than in the area of libel, adding that accordingly some of the least desirable characteristics of English libel law have been imported into the USA. 34 On the other hand, common law 34

See Richard Labunski, Libel And The First Amendment, 29 (New Brunswik and London, 1989). Among them Labunski mentions the influence of English doctrine that led to the jailing and fining of publishers, enabled interpretation of the First Amendment as allowing such practices, and inspired the enactment of the notorious but short-lived Sedition Act of 1798. Under that Act, any ”writing, printing, speech or publishing of a false, scandalous or malicious information against the Government of the USA, its Congress or either of its Houses, or of the President of the USA, with the intention to defame them, or to expose them to disregard or contempt of the American people...” was a crime punishable with a fine of up to $ 5.000 and a prison of up to 5 years. – see I. Stat. 596 (1798). The formulation was vague enough to encompass almost every critic of the government. Before the time of

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rules of libel have not been enforced in colonies on the ”new continent” as eagerly as in the UK. Very early some of those rules reflecting the medieval understanding of individual’s reputation and its protection and severely limiting freedom of expression, had been alleviated and departed from. Although Levy clearly states that ”the image of colonial America as a society in which freedom of expression was cherished is a hallucination of sentiment that ignores history” 35 , the fact is that the colonial courts were reluctant to apply certain inherited rules of English libel law as it was even during the British imperial rule. While there may have been hundreds of trials for seditious libel in England during 17th and 18th centuries, there were probably not more than half a dozen of such trials in its colonies in America before the Revolution. 36 The famous Zenger case was the last of its kind decided under the royal judges, and it has been observed that this case put an end to Court trials for seditious libel as a serious threat to printers in the American colonies. 37 the Act’s validity expired in 1801, there were 14 cases decided under the Act, and all of them were decided against the defendants. Its validity had not been extended because of the massive claim of its unconstitutionality by experts and by the public. 35 Leonard W. Levy, Emergence of a Free Press, 16 (Oxford, 1985). See also Zechariah Chafee Jr., Free Speech in the United States, 16 (Cambridge, 1941); cf. Schofield, Essays on Constitutional Law and Equity, 521-522 (1922). 36 Levy, Id. at 17-18. 37 Harold L. Nelson, Seditious Libel in Colonial America, 3 American Journal of Legal History, 164, 160-172 (1959). The Zenger case, decided in 1735, has been praised both as a case where the colonial courts made a big departure from particular rules of English libel law, and as the first important victory for freedom of the press in the English colonies of North America. John Peter Zenger was a journalist and a publisher of the New York Weekly Journal, a paper that in a year from its establishment published a number of articles critical of the policies of Mr Cosby, the royal governor of the colony of New York. In November 1734 he was arrested and 10 months later tried for seditious libel, which in common law was primarily aimed at protecting the government representatives, against the governor. Under the rules of common law, although many of the articles were contributed by other journalists Zenger was legally responsible for their content as publisher; at that time truth was not a defence, since the mere fact of publication was sufficient to convict the defendant of libel. However, as for the merits of the case his defence attorney A. Hamilton ignored the existing rules and argued that articles printed in Zenger's weekly were true and therefore could not be considered libellous. As for the procedural rules, he ignored the judge's reprimand and, despite existing judicial procedures, argued that the jury, not the judges, should determine the truth of the articles; thus he asked the jury to proclaim his client not guilty for seditious libel. Although the judges ruled Hamilton's arguments on this issue out

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

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emerged over the issues related to speech and press freedoms, they were rarely decided by the Supreme Court and even those sporadic decisions did not make what is today referred to as the First Amendment Law. The states were free to apply different doctrines and practices, and formulate standards that indirectly restricted publishing because of the risk that the published information could be held libellous. The common law of libel grew in complexity, rigidity and inconsistency. A major shift in this respect was made possible only after the Fourteenth Amendment to the US Constitution had been passed in 1868. 41 However, it took a long time before this amendment effectively affected the Supreme Court’s understanding of the First Amendment, it served as a firm basis on which the Court radically changed the whole previous constitutional setting of the relationship between federal and state powers. Approximately by the time of the World War I, through its decisions made in application of the Fourteenth Amendment to various issues, the Supreme Court came up with the construal that this Amendment extended the force of the federal Bill of Rights to states as well. Consequently, the First Amendment came to be understood by the Court as protecting equally against state and local as against the federal government. In the next fifty years, the Court had decided many cases involving First Amendment freedoms. Most of them dealt with the protection of free speech, while only a few with the freedom of the press. However, the Supreme Court did not think then that the First Amendment could in any way restrict the right of states to prohibit libellous statements, which have been routinely referred to as a category of speech that enjoys no constitutional protection. 42 In mid 20th century such attitude was still prevalent in the practice of the Supreme Court. The Chaplinsky case 43 involved both mentioned aspects: the Court accepted the applicant’s referral to the Fourteenth Amendment as relevant for the assessment 41

The key provision in this sense is contained in Section 1 of the 14th Amendment: ”All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” 42 ”[...] The publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others. He must answer for libel [...].” – See Associated Press v. NLRB, 301 U.S., 103 (1937). 43 Chaplinsky v. New Hampshire, 315 U.S.568 (1942).

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of the case 44 , but then blatantly placed libellous statements among those that do not deserve any constitutional protection. 45 Other amendments, taken individually, have not influenced the Court’s understanding of the scope and contents of the freedom of expression. Still, in mid 1960s the Court chose an atypical approach by connecting the formulations of several amendments, and factually created the right to privacy as a constitutional one although it is not explicitly guaranteed by the Constitution. 46 Although some authors fiercely criticized such manner of creating constitutional rights, 47 a new limitation to freedom of expression – the right of an individual to privacy - has been introduced. By mid 20th century defamation was primarily regulated by state law. States in this area mostly adopted the regime of strict liability viewed by many authors and judges as too restrictive of the freedom of expression. Attempting to set a balance in cases where the right to have one’s reputation protected conflicts with the right to free expression, between the end of the World War I and 1960’s the Supreme Court has developed several doctrines on the protection that the First Amendment provides to freedom of expression. One such doctrine was that of clear and present danger, first formulated by Justice Holmes in the Schenck case: ”The question [...] is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger [...] that Congress has a right to prevent. It is a question of proximity and degree”. 48 This test was later reformulated by Judge Learned Hand in Dennis: ”[Courts] must ask whether the gravity of the ”evil” [...] justifies such invasion 44

”It is now clear that Freedom of speech and freedom of the press, [...] protected by the First Amendment from infringement by Congress, are among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action.” Id. 45 ”There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include [...] the libellous, and the insulting or "fighting" words -- those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace. [S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Id. 46 See Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973). 47 See e.g. Geoffrey R. Stone et al., Constitutional Law, 918-922, 929-937 (Little, Brown and Company, drugo izdanje, 1991). 48 Schenck v. United States, 249 U.S. 47 (1919), at 52.

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of free speech as is necessary to avoid the danger.” 49 The doctrine of clear and present danger has been used mainly in cases where defendants were held in criminal contempt for publications of criticisms against courts and judges, and is still used in various circumstances, but its use as a test in free speech cases was mostly abandoned since the Supreme Court’s judgment in Brandenburg v. Ohio 50 case. One of the most influential doctrines in interpreting the First Amendment was that of balancing that emerged in the mid 20th century. According to this test, if different constitutionally protected interests, the private and societal interest in protecting the freedom of speech on one side, and the societal interest in restricting the speech through regulation on the other, are in conflict, the Court is to balance them against each other in the context of a particular case in order to decide which one of them merits protection (while the other remains outside such protection of the First Amendment). Still, regardless of its apparent practicability, this method has been strongly criticized by some analysts. Emerson, who seemed to prefer the ”clear and present danger test” as more protective of the freedom of expression, saw the principal problem with balancing in that it was an ”ad hoc” test that ”frames the issues in a broad and undefined way” and leads to ”effects so unstructured that it can hardly be described as a rule of law at all”; a court is to decide according to its own best judgment which is not based on accepted and impartial rules, and in essence it is nothing more than ”a statement that the legislature may restrict expression whenever it finds it reasonable to do so”. 51 In another text Emerson objected to vagueness of the balancing test which, in attempt to weigh factors that are not comparable, puts the Court in the position of opposing the legislature on the legislature’s own ground. 52 Following a similar path Aleinikoff observed that balancing test posed a difficult problem to constitutional jurisprudence as it seemed to be ”the activist, policy-oriented approach to constitutional law” entailed by the jeopardy that the outcome is based on the judge’s personal preference. However, he believed that this peril can be avoided if the balancing process is externalised, so that judges seek for relevant societal interests and compare them according to

49

Dennis v. United States,183 F.2d 201 at 212, affd., 341 U.S. 494, at 510 (1951). Brandenburg v. Ohio, 395 U.S. 444 (1969). 51 Thomas I.Emerson, Toward a General Theory of the First Amendment, 72 Yale Law Journal, 877 (1963). 52 Thomas I. Emerson, The System of Freedom of Expression, 274-275 (1970). 50

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weight that history, tradition and current society attributed to them, so that the judges’ personal views do not affect the result. 53 Through the long lasting public debate with some of the U.S. Supreme Court judges, Alexander Meiklejohn developed a theory about two kinds of freedom of speech: a freedom of public, and freedom of non-public speech. The former is related to public matters, which the voters must know in order to be able to govern themselves; it is an absolute freedom, and it is protected by the First Amendment. The latter is related to speech that is not necessary for the people to govern themselves; it is not protected by the First Amendment, and may enjoy only the Fifth Amendment's qualified protection that it will not be restricted without due process of law. According to Meiklejohn, libellous speech may belong to either category: if the libel is private, it has no relation to governing and is thus subject to legislative control; however, if the same kind of speech criticises one’s unfitness for governmental office, such as political or seditious libel, it is protected by the First Amendment and is not subject to legislative control. Meiklejohn deemed that the Supreme Court's interpretations actually incorporated both into the Fourteenth Amendment’s ”due process” clause, which resulted, on one hand, in the loss of the First Amendments' absoluteness in protecting public speech, and, on the other, in that some non-public speech obtained a constitutionally protected status under the umbrella of the First Amendment. 54 The main objection to Meiklejohn’s concept is that it rests on the extremely imprecise boundary between public and private speech. 55 Others noted that he would extend the protection of the First Amendment beyond explicitly political speech to all valuable types of speech, which in effect would cause confusion between constitutionality of laws and their wisdom. 56 Some commentators deemed that this theory fails to grasp the important role that certain private individuals assume in public affairs; in this respect the Meiklejohn’s 53

Alexander T. Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale Law Journal, 943, 952 (1987). 54 Meiklejohn, Alexander, The First Amendment is an Absolute, 1961 Supreme Court Review, 245, partly reprinted in Mass Media and the Supreme Court, 48, 49-54 (Kenneth S. Devol, ed. 1971); See also: Meiklejohn, Alexander, Free Speech and Its Relation to Self Government (1948); Meiklejohn, Political Freedom (1960). 55 Zechariah Chafee, Jr., Meiklejohn, Alexander: Free Speech and Its Relation to Self Government, 62 Harvard Law Review, 899(1949)(book review). 56 Robert Bork, Neutral Principles and Some First Amendment Problems, 47 Indiana Law Journal, 26-28 (1971).

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theory would provide inadequate protection to those (particularly to media) who publish statements about individuals who are not public officials or public figures, but still strongly affect the public life. 57

2 Second Period: The Emergence and Development of the First Amendment Law In mid 1960's the Supreme Court took a rather activist stand in applying the First Amendment to issues related to libel, and started to apply a much more liberal doctrine of freedom of expression in this area. In its decisions on the constitutionality of its limitations, including those related to defamation, it introduced significant, sometimes even radical novelties, developing its own model of regulation of defamation. Although still firmly rooted in common law rules, the US law in this area today departs importantly from its roots, mostly as a consequence of the practice of American courts. The decision in the already mentioned New York Times 58 case in 1964 introduced a new approach to this area, and it is considered to be the starting point of the second period in the development of the US libel law. Although New York Times was limited to one particular category of plaintiffs, namely to ”public officials”, its effects and magnitude go far beyond that, apparently narrow, novelty. Its repercussions affect numerous aspects of the modern US law of defamation, and it is one of its fundaments; thus, its importance can hardly be overstated. The period of modern US law of libel is thus characterised by its constitutionalisation and gradual development of the so-called First Amendment law. Previously mainly a local matter governed by common law and state laws, after New York Times libel is assessed in the light of its relation to freedom of speech and press under the First Amendment. Since then, the Supreme Court has decided a number of cases on constitutionality of limitations of freedom of expression, including issues related to defamation, applying the new approach. With the introduction of new rules that counter, or at least modify, the common law ones, common law of libel gradually lost significance it had for long time. These decisions have had the decisive role in re-defining the US libel law in the last four decades, reflecting a new, much more liberal understanding of freedom of expression.

57 58

See Labunski, supra at 45. New York Times Co. v. Sullivan, supra.

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Relevant decisions of the Supreme Court mostly aimed at allowing much wider space to expression by giving it stronger protection than it had ever enjoyed under the common law rules. For instance, New York Times is significant for more than one reason, but by all means its most important aspect is that it introduced a limited immunity for reporters, and presumably any other defendant, from libel actions for defamatory statements of public officials in performing their official duty. Some other subsequent decisions extended the protection of the First Amendment for opinions (as opposed to facts). The 1974 Supreme Court’s decision in Gertz 59 raised the protection of opinions to the constitutional level by proclaiming that there is no such thing as a false idea under the First Amendment, and by requiring the proof of fault on behalf of media defendants when the communication relates to a matter of public concern. Gertz also established the requirement that the plaintiff proves fault on behalf of media defendants when the communication is of public concern. 60 Under the First Amendment, more significance has been given by the courts to the criteria for distinguishing between opinions and facts, and for identifying ”pure” opinions. This requisite alleviated some common problems in cases where the identity of the plaintiff and the character in an impugned statement was wholly accidental, or where the fictitious character was based on the life and/or character of a real person. While previously the defendant’s fault was presumed, the plaintiff now has to invest much more effort to win such a case since he has to prove that fault. Through an overview of most important decisions that reframed and improved the US defamation law, in the continuation of this article special attention is paid to issues that, frequently raising controversies, most significantly affected the development of this area. The first one of them is related to a new 59

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). Such status of opinions was revisited in Milkovich v. Lorain Journal, 497 U.S. 1 (1990), where the Court held that the reference to ”opinion” in dictum of Gertz was not intended to create an all/inclusive protection from actions in defamation for opinions, and referred to a number of other decisions that safeguard the freedom of expression even without the mentioned interpretation of Gertz. – See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986): ”...where a media defendant is involved, a statement on matters of public concern must be provable as false before liability can be assessed”; Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U.S. 6 (1970): ”statements that cannot reasonably be interpreted 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 not reasonably have been interpreted as stating actual facts about the public figure involved”.

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standard requiring the plaintiff to prove the defendant’s „actual malice” in order to win a case, while the other relates to the definition of plaintiffs who are to meet that requirement. Although those decisions affected the relevant state law as well, it is still very important in defamation trials, and a defendant can frequently win a case under the state rules without resorting to the First Amendment law. 61

2.1 Actual Malice Requirement In New York Times Co. v. Sullivan 62 the conflict was between the public official’s interest to have his reputation protected and the interest of the citizens to enjoy the right to free expression. There the Supreme Court introduced a new standard according to which in such cases it is not sufficient that the plaintiff proves the defamation, but he must also prove that the defamatory statement was made with actual malice. In other words, not all defamations of public officials are punishable, but only those made with an ill intention to damage their reputation. Stating that the First Amendment guarantees the right of the citizen to criticize his government, the Court declared that where an elected public official sues a citizen for defamation contained in such critic, the First Amendment modifies the operation of the state law of libel. Public officials enjoy immunity to freely perform their duties, so their critics must enjoy a qualified immunity from civil damages in order to be able to freely participate in ”uninhibited, robust, and wide-open” debates on issues of public concern that ”may well include vehement, caustic, unpleasantly sharp attacks on government and public officials”. The Court did not completely deny the public officials’ reputational interest (or, from the defendant’s point of view, it did not grant an absolute immunity to criticism of public officials), but instead created a qualified privilege for defendants by requiring the public official plaintiffs to prove ”actual malice”. 63 It defined actual malice as knowledge 61

Marc A. Franklin, David A. Anderson, Mass Media Law, 229 (Westbury, NY, 1990). New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), at 277278. For a detailed description of circumstances of the case, the decision itself, and a critical assessment of its consequences, see Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment (New York, 1991). 63 In the holding of the decision, the Court explicitly stated that ”...Factual error, content defamatory of official reputation, or both, are insufficient to warrant an award of damages for false statements unless ’actual malice’ [...] is alleged and proved.” - Id., 283; and also: ”...presumption of malice is inconsistent with federal constitutional requirements.” - Id., 284. 62

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that the statement was false or made with reckless disregard of whether it was false or not. 64 The use of the actual malice test actually removes constitutional protection for defamatory expression that meets the actual malice standard, thus separating what is protected speech from what is not. As mentioned earlier, New York Times has produced multiple effects in the area of defamation law. While many, particularly the media, praised this verdict as a revolutionary decision which provided higher level of protection of freedom of speech by introducing ”order and cohesion to an area of libel jurisprudence that had long suffered from dissonance” 65 , in time some more critical assessments have appeared in the evaluation of its contributions, particularly because it established a standard which required the plaintiff to prove the intentions and/or motivation of the publisher. 66 Still, there are no doubts that it introduced some new issues previously irrelevant in libel litigation, which in return affected the understanding and treatment of many other ”traditional” matters. The initial scope of the actual malice test as set in this decision was limited to cases where a public official has been defamed in performing his official duties. However, the application of the test was very soon expanded to other categories of plaintiffs as well. The search for a clear definition of the circle of plaintiffs who must prove actual malice on behalf of the defendant, and further refinements of the actual malice test soon became key issues in libel cases dealt with by the Supreme Court. Campbell noted that these attempts have continued under two concepts: one focused on the nature of the persons defamed, namely whether they are public or private persons; and the other concerned with the nature of the matter in issue, i.e. whether it is a matter of public or purely private interest. 67 With few exceptions, the Court used some combination of both these 64

Id., 265. The term ”malice” in US law has somewhat different meaning when applied to various institutes, but it always denotes the existence of intention to inflict some harm to other; in the area of defamation law, the harm affects the reputation of the defamed person. – See H.C. Black, Black's Law Dictionary, 660 (publishers editorial stuff), abridged 6th edition, St. Paul, 1991). For a detailed analyses of actual malice requirement see also W. Wat Hopkins, Actual malice (New York-Westport-London, 1989). 65 Clifton D. Lawhorne, Defamation and Public Officials, 213 (Southern Illinois University Press, 1971). 66 See e.g. Thomas I. Emerson, The System of Freedom of Expression, 530-531, 538 (New York, 1970). 67 Douglas C. Campbell, The Supreme Court And the Mass Media, 19-20 (New York, Westport, London, 1990); See e.g. Patriot Co. v. Roy, 401 U.S. 265, 28 L.Ed.2d 35, 91 S.Ct.

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elements in most cases where it dealt with the question of whom the actual malice requirement applies to. Almost all other issues related to defamation are, one way or another, connected with this central issue of the US defamation law. The actual malice test as set in New York Times has generated the need to specify some of its aspects. In comparison with the traditional understanding of malice, ”actual malice” introduced a new stricter standard in respect of the evidence that the plaintiff has to present to be successful in libel litigation: while the defendant’s ”malice” has previously been presumed from the fact of publication, actual malice requires plaintiffs to find out and prove the defendant’s state of mind, namely that he knew that the statement was false, or that he was inexcusably negligent in this respect. Thus, the Court had to specify the relation between the traditional understanding of malice and the meaning of actual malice under New York Times. The requirement of proof of actual malice also generated a related problem of the demarcation between actual malice and lower degrees of fault. Dealing with this issue a year after the New York Times judgment, the 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 to inflict harm without more.” 68 Some time later, the Court further specified this standard in respect of the assessment of a candidate’s fitness for public service, stating that the standard of assessing the ”relevance” is lower than the standard of knowing falsity or utter recklessness contained in the requirement to establish actual malice. It also added that the standard of ”relevance” may become an instrument of suppression of speech based on the content of speech, while a standard of care (actual malice) ”can be neutral with respect to the content of the speech involved.” 69 In pursuit of the adequate criteria for establishing the existence of actual malice, the Court mentioned in New York Times that actual malice must be established with convincing clarity, which became an important issue in defamation cases. In later decisions it has confirmed the stand that a judge must 621 (1971), where the Court, discussing whether the libel in issue was of public or private nature, stated that the difference between situations where actual malice is to be shown and those where it is not is based on two groups of factors, namely the class of persons who appear as plaintiffs, and a type of activity they perform; cf. Ocala Star-Banner Co. v. Damron, 401 U.S. 295, 28 L.Ed.2d 57, 91 S.Ct. 628 (1971), at 300. 68 Henry v. Collins, 380 U.S. 356, 13 L.Ed.2d 892, 85 S.Ct. 992 (1965), at 356-357. 69 Patriot 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).

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base his assessment on ”clear and convincing evidence”. 70 This way, the norm that normally applies in civil litigations – the preponderance of proof – has been substituted by a stricter requirement of ”clear and convincing evidence”, which is, again, milder than the criminal law standard of ”proof beyond reasonable doubt”. Along these lines, the Court in Patriot Co. v. Roy explicated that the standard of ”relevance” is based on the preponderance of evidence, while showing actual malice requires clear and convincing evidence of knowing falsity or reckless disregard of the truth; thus the standard of reasonable person as a standard of care is lower, and does not make an adequate protection for political speech about public officials. 71 A related consequence of New York Times is that ordinary negligence in respect of the truth of defamatory statements about public officials is no longer sufficient for the plaintiff to win the case. 72 Thus, an issue generated by this decision is what behaviour constitutes ”reckless disregard”, and what the criteria for distinguishing it from ordinary negligence are. In respect of media defendants, it related to the level of due care they have to follow when verifying the statements they publish. In one of the subsequent decisions the Court reasoned that the newspaper’s failure to investigate the charges do not amount to ”high degree of awareness of... probable falsity demanded by New York Times”, and thus does not make sufficient proof of the existence of actual malice. 73 In a similar tone, the Court in St. Amant and in Rosenbloom 74 stated that for the finding of actual malice ”there must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” In another case the Court deemed that publishing a false defamatory statement, providing that it is a consequence of an unintentional error in judgment, is not an evidence of actual malice because this standard requires a falsehood to be 70

E.g. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L.Ed.2d 202, 106 S.Ct. 2505, 254, 255-256 (1986); see also Bose Corp. v. Consumers Union of U.S., Inc. 466 U.S. 485, 80 L.Ed.2d 502, 104 S.Ct. 1949, at 514 (1984), where the Court stated that Appellate judges must exercise ”independent judgment” to establish actual malice with convincing clarity. 71 Patriot Co. v. Roy, 401 U.S. 265, 28 L.Ed.2d 35, 91 S.Ct. 621, 1 Med.L.Rptr. 1619, at 275 (1971). 72 ”[...] evidence against the Times supports at most a finding of negligence [...], and is constitutionally insufficient to show the recklessness that is required for a finding of actual malice”. – New York Times, at 287-288. 73 Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 19 L.Ed.2d 248, 88 S.Ct 197, at 85 (1967). 74 St. 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).

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published with unmistaken knowledge of falsity. 75 In a similar assessment of the author’s judgment, the Court held that if the journalist creates misconception by adopting false but possible rational understanding from an ambiguous document believing that such interpretation is true, it does not amount to actual malice. 76 However, in Firestone the Court declared that the media ”must be able to establish not merely that the item reported was a conceivable or plausible interpretation of the decree, but that the item was factually correct;” 77 in other words, accurate reporting understands more than freely selecting one rational interpretation among those available in an unclear document, since the facts on which the interpretation is based must be accurate. On the other hand, the application of the actual malice standard, particularly in cases where it requires the establishment of accuracy and rationality of conclusions about the truth of the alleged defamatory statements, also calls for the examination of the way the information were collected, and of the editorial decision making process, which opened some other questions. In Lando the Court rejected the defendant’s claim of a constitutional privilege against the discovery of the information about the editorial decision making process 78 , stating that: ”There is no First Amendment restriction on the sources from which the plaintiff obtains the necessary evidence to prove the critical elements of his cause of action. On the contrary, New York Times and its progeny made it essential to proving liability that the plaintiff focus on the conduct and state of mind of the defendant.” A defamed public official may, and must inquire about journalist’s state of mind to show reckless disregard, and the media are not protected from questions about the editorial process since the limits of such privilege would be

75

Bose Corporation v. Consumers Union of United States, Inc., 466 U.S. 485, 80 L.Ed.2d 502, 104 S.Ct. 1949, 10 Med.L.Rptr. 1625 (1984). 76 Time, Inc. v. Pape, 401 U.S. 279, 28 L.Ed.2d 45, 91 S.Ct. 633, 1 Med.L.Rptr 1627 (1971). 77 Time Inc. v. Firestone, 424 U.S. 448, 47 L.Ed.2d 154, 96 S.Ct. 958, 1 Med.L.Rptr. 1665 (1976) 78 Herbert v. Lando, 441 U.S. 153, at 160, 60 L.Ed.2d 115, 99 S.Ct. 1635, 4 Med.L.Rptr. 2575 (1979) - During the preparations for the trial the plaintiff required Lando, the producer of a TV show that contained alleged defamatory statements, to reveal certain information related to the editorial process, which he refused claiming a constitutional privilege against discovering that kind of information which protects the media from self-censorship. The Supreme Court denied anything similar to such privilege, since the actual malice test was designed ”to discourage the publication of erroneous information known to be false, or probably false”, and such information only.

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difficult to specify. 79 Campbell noted that one of the effects of the actual malice rule is that some reporters prefer to destroy their notes fearful that the court’s assessment of their liability on the grounds of the information they based their statements upon could be unfavourable for them. 80 Others pointed out that such fear makes most of the comments being approved by lawyers before dissemination”. 81 Even Justice White in one of the Supreme Court’s decisions stated that one side effect of this doctrine could be the prolonged discovery period which would be detrimental to the press. 82

2.2 Defamation of „Public” and „Private” Persons Another issue that emerged from New York Times judgment relates to the circle of plaintiffs who must prove the defendant’s actual malice. The importance of this matter lies in the fact that only the individuals who have certain ”public” status have to meet this higher standard in order to win a defamation case, whereas ”private” individuals do not have to prove the defendants actual malice and consequently they can win the case and the damages for harm done to their reputation easier than the former. Closely associated is the issue of distinguishing between defamation of public officials acting in their public capacity, and defamation of same persons as private individuals, i.e. when they are not performing their official duties. 83 In the period after New York Times the prevalent trend was of extending its rule to plaintiffs other than public officials. The next Supreme Court’s decision important for defamation was Garrison, where the application of actual malice requirement, besides civil libel, has been extended to criminal libel, too. 84 The Court also held that ”appellant's 79

Id., at 170. Campbel, supra at 20. 81 Steve Weinberg, The Anderson File, Colum. Journ. Rev., Nov/Dec 1989, 35, 39. 82 Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749 (1985). 83 E.g. in Patriot Co. v. Roy, supra, at 270-271, and in Ocala Star-Banner Co. v. Damron, supra, at 300, the Court explicitly stated that charges of criminal misconduct of public officials or candidates for a public service are not just a private matter, because such questions are always important for the assessment of their fitness for the office, and so the actual malice standard applies in such cases as well. 84 Garrison v. Louisiana, 379 U.S. 64, 13 L.Ed.2d 125, 85 S.Ct. 209 (1964) – The appellant was convicted of criminal libel for accusing eight state court judges of laziness and inefficiency, and of hampering his efforts to enforce the vice laws, but the US Supreme Court held that 80

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accusations concerned the judges’ official conduct, and did not become private defamation because they might also have reflected on the judges’ private character”. 85 This formulation suggested that almost every action of a public official may be relevant to evaluate his official performance, and that even critics of his private conduct may be protected under the actual malice rule. One aspect of Garrison is particularly important from the comparative perspective. Namely, in this decision the Supreme Court had explicitly and without any reservation placed the judges into the category of public servants who, besides the existence of defamation, have to show the proof of actual malice on behalf of the defendant. With this decision the Court fostered the view about the position of judges as plaintiffs in defamation trials spelled out in Bridges v. California, where, dealing with the conviction of the applicant for contempt of court, it explicitly stated that ”the respect for the judiciary cannot be won by shielding judges from published criticism[...], solely in the name of preserving the dignity of the bench, [because that] would probably engender resentment, suspicion, and contempt much more than it would enhance respect.” 86 ”the Constitution limits state power to impose sanctions for criticism of the official conduct of public officials, in criminal cases as in civil cases, to false statements concerning official conduct made with knowledge of their falsity or with reckless disregard of whether they were false or not.” 85 Id., at 77. 86 Bridges v, California, 314. U.S. 252 (1941). This view stands in sharp contrast with the doctrine developed in the practice of the European Court of Human Rights according to which judges should enjoy special protection from defamation for two main reasons: 1. they are more vulnerable to injuries of reputation because of their duty of discretion, which precludes them from replying to attacks in the media, and thus have less means to protect themselves from defamation than the politicians who can use the media to that end; 2. defamatory attacks on judges not only harm their reputation, but may also damage the authority and impartiality of the judiciary, and thus their protection goes beyond the level normally granted to reputational interests. See Barfod v. Denmark, 22 February 1989, Series A No. 149; Prager and Oberschlick v. Austria, 26 April 1995, Series A No. 313. Still, the level of protection of judges and other judicial officers under the European Convention of Human Rights varies according to the circumstances of the particular case. The reputation of judges enjoys lower level of protection if the attack has been published in the form of a value judgment (opinion), which by its nature is not susceptible of proof (See De Haes and Gijsels v. Belgium, Judgment of 24 February 1997, Reports of Judgments and Decisions, 1997-I), as well as if a judicial officer acts as a ”militant political activist” – in that case he has to endure the same strict criticism as any politician (the latter, according to the practice of the European Court of Human Rights, enjoy the lowest level of protection of reputation. The nature of

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In Rosenblatt 87 , the Court extended the definition of public officials to all ”government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs”. Criticism of public official’s conduct is very similar to defamation of the government, which is a protected speech. Still, the Court stressed that trial courts should make sure that defamation of public official’s behaviour does not make a defamation of his private life, which enjoys higher level of protection. Another contribution of this decision was that it clarified that the actual malice standard applies to some former officials as well as to those who still hold their posts. Four months after New York Times the Federal Court of Appeals for the Second Circuit suggested in Pauling that the actual malice privilege probably needs to be extended to other individuals, and even to debates on issues of vital public interest. 88 This, in a way, announced the next important novelty introduced by the Supreme Court in Butts, decided together with Walker 89 : the creation of ”public figure” category of plaintiffs. In the first case the plaintiff was allegedly defamed that he had conspired to fix the football game between two universities in 1962, whereas in the second the reporter wrote about an eyewitness account about a riot at a university, claiming that the plaintiff commanded the crowd against federal troops enforcing a court order, and instigated rioters to use violence. The majority of 7 Justices (out of 9) approved that both plaintiffs were ”public figures” for the purposes of the First Amendment, although they gained that status differently: while in the first case the plaintiff may have attained that status by position alone (as a team coach), in the second case the plaintiff became a public figure by thrusting himself into the ”vortex” of a public controversy. In order to cover both of them by the definition of ”public person”, the Court formulated a more general definition, according to which public figures were persons who command the interest of the general public, and are important enough to gain access to the mass media to reply to libellous statements. 90 The their job makes them constantly exposed to public scrutiny, and they have willingly and voluntarily accepted to be politicians, so they have to tolerate the attacks on their reputation that the majority of other individuals need not tolerate – see Perna v. Italy, Judgment of 25 July 2001). 87 Rosenblatt v. Baer, 383 U.S. 75, 15 L.Ed.2d 597, 86 S.Ct. 669, 1 Med.L.Rptr. 1558 (1966). 88 Pauling v. News Syndicate, 335 F.2d (1964), at 671. 89 Curtis 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. 90 Butts, id. at 155.

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definition of public figures, however, was not definitely set in Butts/Walker, but was discussed further on. In the process, the Court has been meandering between extending and narrowing its scope. As for the standard applicable to public figures in defamation cases the majority accepted the actual malice standard. The Court discussed the public figure concept again in Rosenbloom, where it introduced the notion of ”involuntary public person”, one who is actually a private person but is involved in a matter of public concern. 91 The outcome was the rather uncontrollable expansion of the circle of ”public figure” plaintiffs, since even private persons were attached the requirement to prove actual malice on behalf of the defendant in cases involving matters of general interest. The Court first stated that decisions after New York Times have revealed the ”artificiality, in terms of the public’s interest, of a simple distinction between ”public” and ”private” individuals or institutions”. Namely, quoting from Butts, the Court reiterated that ”[P]olicy determinations which traditionally were channelled through formal political institutions are now originated and implemented through a complex array of [bodies], some only loosely connected with the Government. This blending of positions and power has also occurred in the case of individuals so that many who do not hold public office at the moment are nevertheless intimately involved in the resolution of important public questions”. 92 As self-governance presupposes more than knowledge and debate about the strictly official activities of various levels of government, the relevant facet to the actual malice requirement is not whether the defamed person is public or private, but whether there is public interest involved in the controversy or not. The Court continued by stating that matters of public interest cannot become less so merely because a private individual is involved, or because a private individual did not voluntarily thrust himself into such matter; the public focus is on the conduct of the participant and the content, effect, and significance of the conduct, not the participant's prior anonymity or notoriety. 93 On those grounds the Court extended the First Amendment protection to all discussion involving matters of such interest. The outcome of Rosenbloom was that the earlier distinction between public officials, public figures and private persons became irrelevant, since all three categories

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Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 29 L.Ed.2d 296, 91 S.Ct. 1811(1971). Id. at 42. 93 Id., at 41-44. 92

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of plaintiffs were to be treated the same when the defamation has occurred in relation to discussions on a matter of general or public interest. The Supreme Court next dealt with refinements of public figure concept three years later in Gertz, 94 where it definitely rejected the ”matter of public interest” standard promoted in Rosenbloom for the application of actual malice rule. 95 There the Court divided public figures into three categories - ”public figures for all purposes”, ”public figures for limited purposes”, and ”involuntary public figures”. The first category, ”public figures for all purposes”, includes those who voluntarily occupy positions of such power and influence that they achieve pervasive fame or notoriety, and assume special prominence in resolving matters of public interest. ”Public figures for limited purposes” voluntarily enter, or are drawn into a particular public controversy with the intention to affect its resolution, and thus gain the status of a public figure for a limited range of issues that they are involved with. Finally, ”involuntary public figures” are largely hypothetical, and include those who did not ”voluntarily” choose to become associated with a matter of general interest; still, they cannot recover damages for injury to reputation unless they prove the defendant’s actual malice. Common feature of all three categories of public figures is that all of them have assumed roles of prominence in public affairs, and the media are thus entitled to take for granted that public figures, same as public officials, had ”voluntarily exposed themselves to increased risk of injury through defamatory falsehood.” Such assumption is not acceptable in respect of private individuals: they normally have lesser opportunities for rebuttal than public officials and public figures, and are thus more vulnerable to injury from defamation, so the legitimate state interest to compensate private individuals is greater than for public officials and public figures. The Court stated that ”absent any clear evidence of general fame of notoriety, and pervasive involvement in the affairs of society”, an individual should not be deemed a public figure for all aspects of his life, but this issue should rather be determined by reference to the nature and extent of his participation in the particular controversy giving rise to the defamation. 96 The states are free to establish their own level of fault for the media when defamation

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Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L.Ed.2d 789, 94 S.Ct. 2997 (1974). In Rosenbloom the ”matter of general or public interest” test was actually endorsed by three justices only, which very soon proved to be an insufficient support to sustain such a major novelty. 96 Gertz, supra, at 345-348, 351-352. 95

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relates to private persons, but punitive damages in respect of private individual plaintiffs may be considered only if they can demonstrate actual malice on behalf of the plaintiff. The consequence was that the scope of the public figure concept as set in Rosenbloom was significantly reduced, because after Gertz private individuals are not automatically put into the category of public figures even though the matter in issue was of public concern, and thus they need not prove the defendant’s actual malice. The scope of the notion of public figure was further narrowed in Firestone 97 , where the Time magazine was convicted by state courts for libel because of the way it wrote about the divorce suit of a couple that was of certain fame in the public. Time filed a petition to the Supreme Court claiming that the issue was a public controversy because of the celebrity status of the plaintiff, and that she should be treated as a public figure. The Court, however, noted that the petitioner seeks to equate ”public controversy” with all controversies of interest to the public, which would reinstate the doctrine advanced in Rosenbloom, but repudiated in Gertz. A divorce through judicial proceedings is not the sort of ”public controversy” referred to in Gertz since the respondent did not assume any ”special prominence in the resolution of public questions”, and so ”imposing upon the law of private defamation the rather drastic limitations worked by New York Times cannot be justified by generalized references to the public interest in reports of judicial proceedings... The details of many, if not most, courtroom battles would add almost nothing toward advancing the uninhibited debate on public issues”. The Court concluded that the respondent was not a ”public figure” for the purpose of determining the constitutional protection afforded. 98 The outcome of Firestone is that even renowned persons actively seeking publicity are not necessarily public figures. Still, although the Court did its best to avoid the ”matter of public interest” test, it had to resort to it to some extent in order to try to consistently specify the circle of public figures. Four years later the Court further developed the idea that private persons who become involved in matters that attract public attention do not automatically become ”public figures”. In Wolston 99 the plaintiff’s involvement in the criminal trial was not deemed a voluntary effort to influence the outcome of a 97

Time Inc. v. Firestone, 424 U.S.448, 47 L.Ed.2d 154, 96 S.Ct.958(1976). Id., at 454-455, 457. 99 Wolston v. Reader's Digest Association, Inc., 443 U.S. 157, 61 L.Ed.2d 450, 99 S.Ct. 2701 (1979). 98

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particular public controversy, so he was not a public figure within the meaning of the Court’s previous rulings in defamation cases and, consequently, was not required by the First Amendment to meet the ”actual malice” standard of New York Times in order to recover from respondents. In Hepps 100 the Court considered the question of who bears the burden of proof in defamation cases. Namely, even after New York Times most states have kept the old common law assumption that all persons are of good reputation unless proved contrary, and that defendants in defamation cases have to prove the truth of their statements. The Court in Hepps, however, made it clear that this common law rule was superseded by a constitutional rule in its past decisions, and that the burden of proof of falsity of a defamatory statement, as well as of fault (actual malice), rests on the plaintiff. This switch was based on a rationale that the burden of proving true speech would have restrictive effects on such speech; on the other hand, the alteration of the traditional rule of the burden of proof was seen as adding only slightly to the already present burdens of the plaintiff since ”evidence offered by plaintiffs on the publisher’s fault [...] will generally encompass evidence of falsity”. 101 The rule of the burden of proof of falsity was formulated to pertain to private plaintiffs, where defamatory statements were made by media defendants in relation to matters of public concern. Hepps, however, did not explicate whether the same rule applies to cases where defamatory statement has been made by non-media defendants. The concept of public figure in the theory is largely influenced by the considerations expressed in the Supreme Court’s decisions. For instance, Prosser and Keeton describe public figure as one ”who [...] by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs, and his character, has become a ”public personage”[...] Such public figures [...] had sought and consented to [publicity] and so could not complain when they received it; their personalities and their affairs had already become public, and could no longer be regarded as their own private business, and [...] the press has a privilege under the Constitution to inform the public about those who have become legitimate matters of public interest.” 102 This justification of lesser

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Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 89 L.Ed.2d 783, 106 S.Ct. 1558 (1986). Id., at 776-779. 102 W.P. Keeton et al., Prosser and Keeton on Torts, 859-61 (St. Paul, Minn.,5th ed., 1984); See also Robert D. Sloane, Politics, Polls and the Press, vol.12, No.1 Communications and the Law (1990), at 60. 101

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protection of public figures is similar to that adopted by the European Court of Human Rights in Lingens and in subsequent decisions in respect of politicians. The scope and contents of ”public figure” concept are still not defined clearly, and probable never will be. Thus it is a matter requiring thorough analysis by the court each time, on a case by case basis, since that may significantly affect the final finding in respect of the plaintiff’s status and his right to recover damages for defamation. 103 * * * Although admitting that actual malice requirement is an improvement over the common law strict liability standards, Gillmor objected to its wisdom and listed a number of problems that followed after New York Times: it introduced numerous dichotomies between absolutes – truth v. falsehood, public v. private, malice v. lack of malice, fact v. opinion, deliberate v. non-deliberate; there seemed to be no standard definitions of the constituents of libel, while the Supreme Court was divided in respect of limits of tolerance for defamatory speech; additional confusion has been generated by unclear relations between old common law standards and the innovations instituted in the last four decades; because of the nature of actual malice test, (plaintiffs’) lawyers were permitted to explore the minds of reporters and editors, and to base the claim of the existence of actual malice on hunch, impression or inference, while the courts were defining journalistic responsibility. Thus, Gillmor’s conclusion was that New York Times was a ”lost opportunity” and a ”crippling compromise”: what the doctrine might have intended was in tatters because of the unexpected boomerang effect of actual malice test. 104 There were even proposals for abandoning the New York Times doctrine and returning to old common law rules. 105

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As an illustration of numerous judgments on this issue see Bruce W. Sanford, Libel and Privacy, 329-345 (Aspen Law & Business, 2nd ed., 1991, with supplements up to 1999). 104 Donald M. Gillmor, Power, Publicity and the Abuse of Libel Law, 68 - 71 (New York – Oxford, 1992). 105 E.g. Justice White in Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749 (1985); Justices Burger and Rehnquist in their dissent in Coughlin v. Westinghouse Broadcasting and Cable, Inc., 476 U.S. 1187-1188 (1986); see also Richard A. Epstein, Was New York Times v. Sullivan Wrong?, 121, 134-135, in The Cost of Libel (Dennis and Noam (eds.), New York, 1989).

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III Conclusive Remarks The development of the contemporary US law on defamation was extremely dynamic and interesting, particularly in the second half of the 20th century. The inherited rigid rules of English common law, primarily aimed at the protection of reputation of individual, were gradually replaced as obsolete by new approach that is more directed towards the protection of the freedom of expression. The key judgment of the US Supreme Court in this respect, New York Times v. Sullivan, represented a radical departure from earlier views and standards, and caused revision and modification of many rules that have been uncontested for centuries. By interpreting the issue of defamation through its relation with the liberally understood freedom of expression, and by extending the effects of the First Amendment of the federal constitution to the state law, a substantially new understanding of numerous aspects of defamation has been developed. Freedom of expression was undoubtedly extended, but even in the new context this freedom meets some new challenges. The effects of the US jurisprudence in this area did not remain limited only to the USA but strongly influenced the relevant law in some other states, too, even including the interpretations of certain international instruments. The US law of libel is still very complex, so the final outcome of defamation proceedings often remains uncertain until the final decision of the Supreme Court.

4 Dragutin Avramović, Assistant Police Academy, Belgrade, Serbia

ALAN WATSON: LEGAL TRANSPLANTS – AN APPROACH TO COMPARATIVE LAW 1 Prominent Scottish and American professor of Comparative Law Alan Watson, who has built his career at universities in Edinburgh, Oxford, Pennsylvania, Virginia, California, and now at the University of Georgia, acquired great fame due to his numerous inventive works – more than 40 books and a few hundred articles. However, two of his most important intellectual contributions will remain remembered for long. The first one is editing and publishing the English translation of Justinian’s Digest 2 , while the second one is a theory of legal transplants, 3 which has provoked a thorough debate and concerned reaction among legal scholars. By challenging some of basic principles of legal evolution and of the historical school, as well as of the Marxist view on legal development, 1

Serbian translation: Pravni transplanti – pristup uporednom pravu, Pravni fakultet Univerziteta u Beogradu, Beograd 2000, 193 str., Legal transplants – an approach to comparative law, Athens GA – London, 1993, p. 121 2 The Digest of Justinian, I-II, University of Pennsylvania Press, 1998. 3 He has clearly defined his theory on legal transplants firstly in A. Watson, Legal Transplants, an Approach to Comparative Law, University Press of Virginia, 1974. However, origins of his view can be rooted in his earlier works on Comparative Law and Legal History, while additional argumentation has been offered in subsequent books like Society and Legal Change, Scottish Academic Press, Edinburgh, 1977; Comparative Law and Legal Change, Cambridge 1978; The Making of the Civil Law, Harvard University Press, Cambridge, MA, 1981; The Sources of Law, Legal Change and Ambiguity, University of Pennsylvania Press, 1984; The Evolution of Law, Johns Hopkins University Press, Baltimore, 1985; Failures of the Legal Imagination (University of Pennsylvania Press, 1988); Legal Transplants, 2nd ed., University of Georgia Press, 1993; Law Out of Context University of Georgia Press, 2000; The Evolution of Western Private Law Johns Hopkins University Press, 2001. Important argumentation in defense of his view is available in electronic form: A. Watson, ”Legal Transplants and European Private Law”, Electronic Journal of Comparative Law, vol 4.4 (December 2000) .

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Watson has attracted many arrows of criticisms, but he also acquires more and more followers. Recent confrontation of opponents and supporters of this theory that took place at the University of London conference held in May 2005 has shown importance of legal transplants issues. Although Serbian literature does not still include Alan Watson among most important legal philosophers of the 20th century 4 , his contribution to legal theory is undeniable. This review aims to get him closer to our readers. According to Watson’s opinion the evolution of law is most often based upon legal borrowings, although he does not exclude influences of internal legal evolution and other effecting elements. However, Watson insists and empirically approves through many examples that changes in law often come out as a consequence of solutions from other legal systems. Stressing that this effect appears in some cases by chance, he imperils the very foundations of evolutionism. Consequently, to perform legal changes it would not have been always necessary to meet similar level of general social and economical development of the donor and recipient state. This is why he is usually strongly attacked predominantly by Marxists and sociologists. The book is divided in 17 chapters, combining theoretical and empirical approach. First four chapters titled ”Comparative Law as an Academic Discipline”, ”The Perils of Comparative Law”, ”The Virtues of Comparative Law”, ”Introduction to Legal Transplants” place theoretical framework for his future conclusions. He treats Comparative Law not only as a method, but as a specific and complex scientific discipline: ”Comparative Law, then, if it is to be an intellectual discipline in its own right, is something other than the study of one foreign system (with glances at one’s own), an overall look at the world’s systems or comparison of individual rules or of branches of law as between two or more systems, and I would suggest that it is the study of the relationship of one legal system and its rules with another” (p.6). Watson denies possibility of making general legal development theory applicable to all or many unrelated societies. He attacks the evolutionary theory from its own point of view, stating that it is methodologically imperfect and not founded at firm principles, claiming also that there is therefore no possibility to be refuted by an objective theoretical 4

R. Stepanov – G. Vukadinović, Pravna misao XX veka (Legal Thought of the 20th 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.

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reason. ”But the theory can only be established – and can only be rebutted – if it is developed. It is for these reasons that we must take issue on ground chosen by the main proponent of the theory, and show that in one important instance (for him) the legal position described by him derives from his theory and not from evidence” (p.13). Watson claims that the most important value of Comparative Law rests in fact that it is able to offer knowledge about the nature of law, and in particularly of legal development. Comparative Law enables to reveal relations between legal systems, representing a framework for understanding essence and development of law. Based upon this starting point, Watson accentuate a paradox of historical school that although the law reflects ”spirit of people”, legal transplants are still very common and important. He points to Roman Law and English Common Law as the two significant donor systems, being used for transplantation of legal ideas and institutions all over the world. Therefore, in following chapters (”Romans and Roman Law in Roman Egypt”, ”Roman Systematics in Scotland”, ”The Reception of Roman Law in Scotland”, ”Meaning and Authority”, ”Lo Codi”, ”The Early Law of the Massachusetts Bay Colony”, ”English Law in New Zealand”, ”Roman Law in the Late Republic”, ”Lex Aquilia: Reception and Non-Reception”, ”Transfer of Ownership and Risk in Sale”, ”Authority Again”) the author approves his general standpoints upon examples of concrete legal systems and legal institutions. Those examples are mostly related to private law sphere. By using rich historical material and comparative method Watson comes to conclusion that transplantation is equally present in ancient as well as in modern world. He also offers a possibility of transplants classification, starting with basic division in voluntary major transplants and imposed ones. As in many of his works and lectures, he grants a particular attention to phenomenon of Scottish law, being predominantly developed under the influence of Civil (Continental) Law. Scotland has adopted from Roman Law both its positive law and legal systematics, although it was placed next to England – the second most important legal nursery plant. By using that phenomenon Watson clearly demonstrates the role of chances and importance of authorities in law making process through borrowings. As the central reasons for transplantation of Roman Civil Law, rather than English Common Law, he picks out two main causes: the first, a historical rivalry among Scotland and England culminating with the Scottish break with England after the War of Independence, and the second, absence of any University in Scotland that led Scots going to Europe to study (p.46). Coming back home after studies Scots have brought Roman Law

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

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some peoples have been vitally important for the development of private law, like Romans and English. Finally in the chapter ”Afterword”, which appears in the second, 1993 edition (the one that is translated into Serbian), Watson responses to criticisms that has emerged after the 1974 book. He firmly defends his attitude, adding new arguments in its favor, and a few extra points. One of the most striking ones is importance of availability of donor system, which can be available if it exists in a written form, if it exists in a form easy to be discovered and understood (including its language), and if it is immediately accessible. In the final chapter Watson also stresses the practical dimension of his theoretical attitude: ”My primary aims in Legal Transplants were to set the bounds of Comparative Law as an academic discipline and to see what could be learned from it. But the study turns out to have a practical dimension. If borrowing is the main way law develops, and if the lawmaking elite is bound by its legal culture, and if this culture is restricted by what the elite does not know, then it follows that the quality of legal education, including exposure to Comparative Law (where that occurs), plays a powerful role in law reform” (p. 118). This theory has provoked huge reactions among scholars. One of the most severe opponents W. Evan says: ”In short, there is ample reason to question the validity of Watson’s thesis on legal change and legal evolution. This is indeed important for the sociology of law because the corpus of Watson’s work may be interpreted as undermining the rationale for developing a theory of law and society”. 5 However, nevertheless Watson’s theory looks like revolutionary and extravagant, he partially relayed upon ideas of other authors, such as Roscoe Pound, who stated many years ago: ”History of a system of law is largely a history of borrowings of legal materials from other legal systems and of assimilation of materials from outside of the law”. 6 Similar thoughts appeared in an older literature: already Jeremy Bentham developed a number of utilitarian principles proper for transplantation purposes, on occasion of adapting English legal system to the law of Bengal. 7 Besides, Watson’s basic concept is close to an idea of acculturation developed in sociological theory, and in particularly to perspective of legal acculturation, comprehending grafting of one (legal) culture to another (legal) culture. Although 5

W. Evan, Social Structure and Law, Newbury Park, 1990, 35. Quoted according to A. Watson, Legal transplants, 22. 7 Quoted according to J. Carbonnier, Sociologie Juridique, Paris, 1978, 76. 6

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this concept was more connected to primitive societies explaining their transformation into civilization, it can be generally related to legal systems in general. Majority of scholars are of opinion that acculturation can never achieve full success, for if everything is determined by social environment, any transplantation regardless social circumstances is an adventure and, in any case, must result in deformation of the transplanted element. 8 Since the system is supposed to be in balance, to remove its particular part means to endanger entirety to be ruined. 9 In that sense certain objections can be raised against Watson’s particular argumentation: e.g. in his favorite example of the most impressive transplant – one of the Swiss Civil Code in 1926 Turkey, which took place mostly due to fact that then Turkish Minister of Justice Mahmut Esad Bozkurt studied law in Switzerland (p. 115) – Watson neglects the fact that even there a certain kind of ”rejection of foreign body” had to appear. Namely, according to standards of Swiss model the marriageable age in the Turkish Code was posted at 20 years for men and 18 years for women, but by a strong pressure of social needs it was reduced to ages of 17 and 15 in 1938. All marriages concluded previously according to customary law, contrary to the Code, were convalidated. But, to be true, Watson himself pays a significant theoretical importance to the ”rejection problem”, so that he can not be blamed for not pointing 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 law making process) and sociologists (as it is expected that law reflects conditions in a society, while transplantation may contradict that axiom). However, it seems that Watson did not underestimate neither economic factors, nor determination of law by social circumstances. With his view he step far away from previous particular observations on theoretical importance of reception of law, which is a notorious historical phenomenon, which can not be neglected (starting with the most famous example of Roman Law reception 10 ). One of his advantages is that he based his theory of legal development upon extraordinary rich historical material, as well as on his comprehensive and detailed knowledge both of

8

J. Carbonnier, 197. J. Carnonnier, 194. 10 One should differ notions of receptions in legal history and sociological concept of acculturation. While reception usually comprehends acceptance of a legal system as a whole, legal acculturation usually refers to acceptance of particular legal institutions. 9

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Common Law and of Civil Law legal system. Specific value of his view, often neglected by critics, is his compromising attitude towards evolutionary theory. For, Watson does not ignore importance of different factors potentially influencing law-making processes. He only stresses importance of transplantation impact and considers it decisive in some cases, depending on specific social and historical circumstances. Nevertheless numerous criticisms, such a compromising attitude leads basically to a certain kind of integral comprehension of law origin. This fact is rarely mentioned in literature, stressing mostly Watson’s weaknesses by insisting on legal transplants significance. Opponents usually emphasize his appraisal of a pure chance and of misunderstandings in transplantation processes, accusing him for introduction of voluntarism and absence of regularities in legal development. However, ”Mr. Chance” (as famous Serbian writer Miloš Crnjanski would have said), although overstressed at times, has got a proper place among a variety of elements respected by Watson in explaining legal changes, and legal transplants are in general quite properly balanced with other factors of legal development.

V The Legal and Political System of the USA

1 Prof. Dragan Bataveljić, PhD Faculty of Law, Kragujevac, Serbia Conteporary Constitutional System in the United States of America 2 Ivana Tucak, LL.M, Assistant Faculty of Law, Osijek, Croatia A Theory of Sovereignty Under the Federal Constitution 3 Gordana Mitrović, LL.M Novi Sad, Serbia Robert Nozick: Anarchy, State and Utopia

1 Prof. Dragan Bataveljić, PhD Faculty of Law, Kragujevac, Serbia

CONTEMPORARY CONSTITUTIONAL SYSTEM IN THE UNITED STATES OF AMERICA Abstract: In the opening paragraphs, author calls attention on creation and historical development of the first and most illustrious of federations in the USA. Constitution of the United States, ratified in 1787., owing to its original and inovative approach is generally considered a doyen among all other constitutions of the world. Furthermore, principle of separation of powers is treated in some detail, in its ’rigid’ form which represents a basis for organisation of powers according to the U.S. Constitution. Original presidential system, constitutionally established in 1787., deserves, being stable yet complex system of government, prominent position in the U.S. Constitution analysis. Essay also contains analyses of legislative, executive and judiciary powers in their own merits, whilst specific attention is drawn upon the relation between legislative and judiciary powers of government. Key words: USA, Constitution, branches of government, judiciary power, executive power, legislative power, Congress, President of the USA, House of Representatives, Cabinet, impeachment, Supreme Court, right of veto

Introduction North American continent was discovered in late XV century, and had been populated slowly, mostly by European newcomers. The process of populating the country started as early as XVI century and continued, with increasing intensity, during XVII century, the biggest source of new inhabitants having been United Kingdom. The process reached its apex in XVIII century, and retained somewhat lower yet steady pace until present time. Early inhabitants started establishing separate colonies, which functioned as constituents of great British Empire; first thus founded colony was Virginia in 1607., and the last one

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was Georgia in 1732. All colonies shared similar organisational structure, with certain, more or less subtle, differences: the head of executive power was governor, appointed in London 1 ; a sort of legislative power was exercised by a body of representatives, and judiciary power was identical in all areas and drafted according to its English precursor. The local government was an exact copy of its British counterpart, complemented with town meetings as a form of direct democracy, whilst common law enjoyed same level of esteem as in England. Due to the great distance and difficulties in communication, as well as increasing antagonism against English crown which tried to impose new taxes and effectively limit the freedom of trade, spirits got stirred in the colonies. Such a state led to meeting the so-called First Continental Congres in Philadelphia in 1774., composed of the representatives of thirteen American colonies, and in turn provided for the Second Continental Congres in 1775. The Second Congress deliberated a decision to declare war on the British Empire, whilst on 4th July 1776. the famous Declaration of Independence was adopted. The Declaration proclaimed 13 colonies independent and war of independence, started in 1776., continued until 1783. Namely, in that year Great Britain was forced to sign a peace treaty in Versailles and thus formally recognise independence of its former American colonies. In the meantime, the Second Continental Congress formally established a loose confederation by passing the Articles of Confederation and Perpetual Union. The document became effective during 1777., but was eventuall ratified by all states no sooner than 1781. During the course of year 1780. all thirteen newly founded states adopted their own Constitutions which often displayed numerous differences, but all proclaimed notion that authority dwelled in people and the organisation of powers was to be separated into legislative, executive and judicial branches. 2 Constitutions of Massachusetts and Pennsylvania were used as prototypes for the Constitution of United States since American confederation functioned as rather loose organisation and weak tie among the states. Many practical obstacles to seamless functioning of the Confederation provoked all states to reach unanimous decision and call for constitutional assembly in 1787. in Philadelphia; the assembly not only surpassed its initial taks of revising the Articles of 1

The colonies were located some 3000 miles away from London, the only available transportation having been sailboat, journey on which could last for several weeks. 2 It should be, however, noted most of the constitutions gave precedence to legislative over executive powers, the main representative of latter being the governor.

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Confederation, but managed to adopt and ratify new Constitution, a doyen among constitutions of the world and presently in effect in all fifty states, containing only 27 amendments. Name and flag of the United States of America represent the federal character of the American state. The notion of ”federal state” indicates the presence of political system equally distributed among the constituent states, effectively making them on the one hand independent decision centres and on the other mutually influential participants, thus improving the ”common interest” of a nation.

Principle of Separation of Powers Doctrine concerning separation of powers originates from such works as ”Two Treatises of Government” and ”The Spirit of the Laws”. Authors are John Lock and Charles Montesqieu, respectively, the latter one generally being considered the founder of the doctrine of separation of powers. First written Constitution on the American soil was passed on June 29th 1776. by general convention of state of Virgina, which contained in its third paragraph the most precise and clear statement defining separation of powers, save the anteceding English ”Instrument of Government”. Acording to the paragraph, ”the legislative, executive, and judiciary department, shall be separate and distinct, so that neither exercise the powers properly belonging to the other... except that the Justices of the County Courts shall be eligible to either House of Assembly.” 3 The principle of separation of powers was also included in the constitutions of Pennsylvania (1776), North Carolina (1776), Georgia (1777), New Hampshire (1777), Massachusetts (1780) and Vermont (1784). However, separation of powers was primarily exercised and acknowledged in verbal form! In spite of normative separation of state functions into legislative, executive and judiciary and their distribution onto three distinct bodies, doctrine of separation of powers meant very little in the period from 1776-1789., since the version of pure separation of powers was adopted which left no place for any sort of controlling or ballancing mechanism. USA had got their first Constitution in 1787. The Constitution affirmed the principle of separation of powes despite the lack of any specific provisions 3

Sources and Documents Illustrating the American Revolution 1764-1788, 1970., text of Constitution of Virginia, p. 152

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defining it. Three opening articles outlined legislative, executive and judicial branches of power in such manner that ”all legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives” (article 1), ”the executive power shall be vested in a President of the United States of America” (article 2), whilst ”the judicial power of the United States shall be vested in one Supreme Court” (article 3). 4 The main American contribution to European theory of separation of powers lies, principally, in the idea people is not only represented by legislative but also head of executive power, therefore underscoring the importance of executive power representatives being chosen by people in the identical manner legislative ones are. Another, distinctly American contribution to the doctrine of separation of powers is represented by its emphasis on the judicial branch independence. In addition, separation of powers is necessary prerequisite to judiciary control of the constitutionality of the law which depended on the acceptance of the idea of ”checks and balances”, important obstacles to wrongful exercise of power and authority. Strict separation of powers excluded any possibility for judiciary control of the constitutionality of the law as it would ensue from the ”checks and balances” principle, according to American constitution. In the USA, ”pure” doctrine of separation of powers was fugacious as a result of breakage with traditional forms of power, hence the doctrine was swiftly substituted with the emerging ”checks and balances” principle, whilst in France the changes would occur no sooner than 1814. and 1848. The reason for such development lies in the fact USA had no troubles with monarchy and aristocracy, since there had been no feudalism in its history. America was an ”empty” country, having no need to disrupt any form of feudal, but only foreign colonial regime. On the other hand, ”pure” doctrine of separation of powers could have never been fully exploited in France. What were the circumstances instigating the development of doctrine of separation of powers in its ”pure” form, both in XVIII century America and France? Ergo, theory of separation of powers was widely adopted and applied in constitutions of many countries. The Constitution of the USA had been practically 4

Excerpts of the original US Constitution text – B.Mitchell – L.Mitchell: ”A Biography of the Constitution of the United States”, 1964, Art. I, II, III.

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applying the principle, building its presidential system on it and thus, side by side with the representative body, establishing a very strong executive branch (embodied in the institution of Presidency) and independent judiciary. The principle of separation of powers found fertile ground in many European countries thereof. Declaration of the Rights of Man and of the Citizen (1789) was first to proclaim ”a society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all.”

Stable Yet Complex System of Government Constitution of the USA does not have a single mention of the word ”democratic”. At the time, the adjective conveyed the meaning of direct democracy, the one exercised in ancient city-states and which is still in power in certain Swiss cantons. American political life was characterised with constant rivalry between Capitol (Congress) and White House (President). The rivalry is reflected in legal and constitutional disagreements and competence delimitations. Politicologist and later president Woodrow Wilson observed the course of American history as perpetual cyclic vicissitude between precedence of Capitol, at one point, and White House, at another.

Legislative Power Even though Constitution of the USA did not formulate the principle of separation of powers explicitly it has been, however, implemented in an obvious fashion. Namely, the principle can be distinguished in the strict separation of jurisdictions among legislative, executive and judiciary powers, ie. main holders of the three – Congress, President and Supreme Court. Separation is performed in rigid way, so none of the three branches could interfere with the proceedings of other two. However, since the concetration of powers cannot be exercised to the full extent neither could the separation of powers be performed literally. This indicates the absolute separation of the three branches of power does not exist, since there are various mechanisms which would prevent any of the branches from gaining inappropriately high level of independence, thus making the usurpation of jurisdictions practically impossible. At this point it must be, however, noted that in spite of widespread acceptance and bicentennial usage of this system of government, certain and

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inevitable modifications occurred during the period. System of government in the USA is stable, yet complex system. Certain phases of development of the USA were charactarised by predominance of Congress, ie. legislative powers, others by predominance of President, ie. executive power and there were periods when Supreme Court, ie. judiciary power, prevailed in influence. 5 First article of the Constitution vests all legislative power in Congress of the United States, which is to hold sessions at least once a year on the first Monday in December unless other meeting day is specifically ascertained. Congress is composed of Senate and House of Representatives. Such bicameral structure of the supreme legislative body is shaped by the political system – federalism. USA constitute a federation which, in fact, function as a state union of both citizens and federal units; citizens are represented in eponymous House of Representatives, whilst federal units vest their power in Senate. House of Representatives consists of 435 members (delegates), each representing a congressional district and serving a two-year term, whilst the terms are staggered so that approximately one half of the seats are up for election semiannually. 6 Certain conditions are imposed on potential candidates, insomuch no one can be eligible for office unless 25 years of age, a citizen of the United States for at least 7 years, and a resident in the state he or she represents at the time of election. According to the Article I of the Constitution each state is equally represented by two members in the Senate, who are elected to a 6-year term by a legislative branch of government, with each senator having one vote. Certain requirements must be met in this case too: a Senator must be 30 years of age, a citizen of the United States for past 9 years, and must reside in the state he or she seek to represent at the time of election. The Vice President of the United States is the President of the Senate and serves as its presiding officer, but is not a Senator and does not vote except to break ties. Senate was established as a compromise between centralists and federalists, and given it includes two Senators from each state (from the total of 50), voted for on general elections to a 6-year term, it indicates the Senate consists of one hunderd Senators. There is one distinct pseudojudicial parliamentary role of the Senate, which has its origins in the XIV century law of England and Wales. It is the so-

5 6

Such occurrence is called courtocracy. This provides a continuity of action in House of Representatives

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called impeachment, which vests an exclusive power in Senate to prosecute and adjudicate the United State officials (’officers’). By contrast, in the case of the impeachment of a President the Chief Justice of the United States presides over the proceedings, yet in order to convict the accused a two-thirds supermajority of the senators present is required. Impeachment, ie. disqualification, automatically removes the defendant from office and terminates his or hers privileges. Following conviction, the Senate may vote to further punish the individual by barring them from holding future federal office (either elected or appointed), but cannot engage any further. Despite a conviction by the Senate, the defendant remains liable to criminal prosecution. Members of Senate and House of Representatives receive compensation for their services, as ascertained by law, which is remunerated by U.S. Treasury. Also, they enjoy immunity in all cases, except Treason, Felony and Breach of the Peace, and are privileged from arrest during their attendance at the Session of the respective Houses, and in going to and returning from the same. Further, Senators and representatives cannot be held liable to legal action for anything they said or opined during Sessions. However, they are also subject to incompatibility – none of senators nor representatives are allowed, whilst holding office, to be engaged in any public service of the U.S. government which would be specifically created for them, or make possible for their income to increase during that time. Likewise, none of the officers of the U.S. government cannot be elected to any of two Houses during their service. Powers of Congress are very extensive. Thus, Congress exerts following powers: - lay and collect taxes, duties, imposts and excises 7 - to regulate commerce, both interstate and foreign and mind general welfare of people of the USA - to establish courts inferior to the Supreme Court - to raise and maintain an army and navy and to declare war Without the consent of Congress neither of states may assess taxes; pass expropriation bills nor laws; coin nor issue money; enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

7

It is important to emphasise that all taxes, duties, imposts and excises must be unifrom on the whole territory of the USA

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New states may be admitted by the Congress into the Union; but no new states shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress. The Congress have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. On the basis of abovementioned facts, we may safely conclude the Congress possess rather extensive power. Primarily, Constitution granted the Congress all legislative authority and in turn Congress displayed successful exertion of their constitutional rights. However, due to existence of a clause restricting the jurisdiction of state constitutions as well as federal clauses regarding the separation of powers, the course of time had proven Congress unable to perform its legislative duties only by passing laws and exerting its constitutional prerogatives. This is the reason why Congress activated so-called ”additional rights”. Namely, according to the ”theory of concealed powers”, which is implemented in practice, the highest legislative body of the USA is, if needed, allowed to ”perform legislative tasks on the federal level in other areas which are deemed necessary. The acceptance of theory has increased the authority of Congress to the great extent...” In spite of the fact that many Americans regard the power of Congress decreasing, especially in XX century, American legislature is still considered ”the most powerful parliament in the world”, a ”working parliament” fully capable of exercising its autonomous legislative function and, in terms of restricting the usurpation of government, supervises and controls the executive power. Being a ”working parliament”, autonomous in its functioning, Congress is in need of comprehensive, highly educated and skilled service and apparatus, as well as high level of specialisation. This is true for both Houses, numerous boards, commitees and subcommitees, including individual delegates and senators. For that reason, Library of Congress has made the best world library available to the Parliament. Further, there is the Congressional Research Service, a public policy research arm of the United States Congress, with more than 800 activists.

Executive Power Almost entire executive power is vested in the President of the USA by Article II of the Constitution of the United States of America. President holds

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

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which have the binding force of law upon federal agencies but do not require congressional approval. Another significant power of US President is that of granting a full or conditional pardon to anyone convicted of breaking a federal law — except in a case of impeachment. The pardoning power has come to embrace the power to shorten prison terms and reduce sentences. The President is the federal official primarily responsible for the relations of the United States with foreign nations. He appoints ambassadors, ministers, and consuls — subject to confirmation by the Senate — and receives foreign ambassadors and other public officials; nominate federal judges, including members of the Supreme Court and all other US officials, unless otherwise indicated by provisions of the Constitution; he manages national affairs and the workings of the federal government, et al. It is safe to conclude the institution of President encompasses broad powers; however, he could only operate successfully had he, besides his VicePresident, been equipped with well organised concatenation of institutions of executive powers. Therefore, the President is surrounded by a number of personal advisors for all his duties, which have, in time, developed into presidential institutions: 1. Cabinet, consisting of the 14 heads of federal executive departments (secretaries, ie. ministers) 2. Executive Office of the President Because of the vast array of presidential roles and responsibilities, certain restrictions are imposed on his office, such as limit to the duration of his term on four years, with George Washington saying none of American citizens should hold presidential office for period longer than 8 years. Such attitude resulted in 1951. 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 office, thus breaking this previously unwritten constitutional rule.

Judicial Power Free and lawfull judicature is one of corner-stones of American constitutionality. Namely, the issues of courts, adjudication, laws and justice were most seriously raised in earliest phase of development of American states, ie. English colonies. Given that all original states on American soil were under English governance, that educated people mostly came from England and that

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settlers mostly spoke English as their first language, had logical result in English law having had predominance. Taking all these facts into account, it is not hard to understand why European theorists of natural law exercised so strong an influence on Founding Fathers and makers of U.S. Constitution, who were convinced American society and public would benefit greatly from separation of powers as form of government. Such system of government enabled judicial branch to become, alongside its executive and legislative counterparts, an equal power, established in the Constitution itself. In this fashion judicial branch became undisputable, authorative and irreplacable pillar in U.S. political system. American federalism, in conjuction with anglo-saxon tradition, created judicature rather difficult and arcane for a foreigner to grasp. Namely, two distinct vertical judicial systems emerged: federal judicature, a tripartite pyramid with Supreme Court of Justice, apellate instances and district courts on the one hand, and multipartite judicature of individual states on the other. Such situation leads to variety of legal interpretions, most of which are based on Common Law, which in turn is ignorant of any legal and regulatory codifications and systematics specific to Roman Law, but induces actual law from previous adjudications, ie. earlier cases tried. The judicial power of the United States is vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The Judges, both of the Supreme and inferior courts hold their offices during good behavior and, at stated times, receive for their services a compensation which cannot be diminished during their continuance in office. The judicial power shall extend to all cases, in law and equity, arising under the U.S. Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to controversies to which the United States shall be a party; to controversies between two or more states and between a state and citizens of another state. In all cases affecting ambassadors, other public ministers and consuls as well as those in which any of the states shall be a party, Supreme Court holds original jurisdiction. In all other cases, aforementioned or hereby not mentioned, Supreme Court holds appelate jurisdiction. Processing of all criminal cases, save the impeachment, is conducted in the presence of jury. Such proceedings are conducted in the state where criminal act was commited, and if the act was not

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commited on the territory of any of the states, trial will be held in the place or places decided on by Congress.

Relation of Legislative and Executive Powers It has been a well-known fact President of the USA is vested with much greater power than any other democratically elected president or prime minister, even though 1787. Constitution does not precisely define all presidential powers he does enjoy nowadays. Large extension of powers have taken place due to interpretations of the Constitution by Supreme Court as well as practice of the President and Congress. United States of America exert the most prominent form of presidential system, and we can recognise tendency of the Constitution to equalise President and Congress. 8 However, both the Constitution and constitutional practice determined certain relation of the President and Congress. Namely, Montesqiue himself, who developed the theory of separation of powers to its fullest, in his seminal work The Spirit of the Laws said branches of government were obliged to work in accordance, which means that their complete equality and pure separation of powers would lead to paralysis of government. Relation of the three branches of power in U.S. presidential system is based on the principle of ”checks and balances”, ie. interdependence exercised through coordination. Every legislative proposal approved by House of Representatives and Senate, prior to becoming law, must be submitted to the President. The President may choose to sign the bill, thereby making it law. The President may also choose to veto the bill, returning it to Congress with his or her objections. In such a case, the bill only becomes law if each house of Congress votes to override the veto with a two-thirds majority. President and Congress exert different powers and are in relation of pure separation of powers. Namely, the President during his term (and with the assisstance of his Cabinet) is exercising complete executive power, whilst Congress, being a legislative body, is exercising complete legislative power. This would mean that, principally, neither could interfere with powers and functions of the other 9 nor could it decided upon the existence of the other (once elected, 8

The tendency is to equalise both positions and functions of the two. E.g., the President cannot participate in legislative activities whilst Congressional cannot intervene in any aspect of Presidential, executive power 9

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every government organ is certain to stay in office for the duration of its term). President could not dismiss Congress, nor could Congress recall the President. The relation between the President and Congress is precisely outlined in the Constitution. However, long-lasting practice has defined and determined the relation in larger degree, so that a balance of powers has been created. Namely, in spite of not being responsible to Congress, but Constitution, the President is in a certain way related to Congress which is, in turn, tied to the President in regard to passing laws. Thus, even though President cannot be held politicaly liable, Constitution holds him criminally liable and therefore subject to impeachment. The lack of political liability empowers the President with ability to make great many independent decisions, yet in case he is suspected to have commited a criminal act – such as treason, bribery or other high crimes and misdemeanours – House of Representatives is allowed to initiate an impeachment proceedings whilst Senate conducts a trial. There have been three cases of impeachment proceedings against the President of the USA: - Andrew Johnson was impeached in 1868 after violating Tenure of Office Act. Johnson was acquitted of all charges by a single vote in the Senate. - Richard Nixon was in prospect of impeachment proceedings after the Watergate scandal (wiretapping). Nixon resigned prior to House consideration of the impeachment resolutions. - Bill Clinton was impeached in 1998 by the House of Representatives on grounds of perjury to a grand jury and obstruction of justice. He was acquitted by the Senate. Furthermore, President is obliged to submit all sorts of his financial expenses for Congress’ to inspect. Consent of Congress is necessary in all cases of appointment of President’s associates and in all important issues regarding foreign policy. Congress exercises influence over President by its sole function of enacting laws and approving budget, the upper house, ie. Senate having even wider field of influence. Namely, the Senate may refuse to confirm any Presidential appointments, even though such appointments are in Presidential power. In respect to this, so-called ”Senatorial courtesy” may occur – the President may not continue with appointment for a federal office unless he sought ”advice and consent” of the Senators from the state to which the appointment applies. Should it happen the Senators do not concur with President’s appointment or that he failed to seek their ”advice and consent”, other Senators may, for the sake of solidarity, exert ”Senatorial courtesy” and deny the President their approval for the particular appointment.

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

Notable example is Treaty of Versailles in 1919.

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States reports on the status of the country, normally to a joint session of the U.S. Congress, which at the same time serves as Presidential legislative agenda. The Address President delivers have a strong impact on public opinion and becomes a legislative agenda of the Congress. Contents of the speech, that is information of the State of the Union and related programme, is not subject to discussion. Having finished the Address, the President retires from Congressional premises. The term ”Government” (Cabinet) does not appear in the U.S. Constitution. Throughout the practice, the President created some sort of Cabinet, consisting of the heads of federal executive departments, fourteen in number. The heads of departments are named Secretaries, with the head of the Justice Department holding the title of Attorney General. They are mostly President’s close friends and associates who comprise the so-called ’administration’. The U.S. Cabinet resembles a group of Ministers which, in words of James Brice, ”surrounded Czar or Sultan or followed orders of Roman Emperors like Julian or Constantine.” This is not an ordinary government in any respect, nor any sort of homogenous collective body, but body vested with powers only granted by the President himself. A comment by Abraham Lincoln is the best illustration of relations within Cabinet – ”the only voice that counts is the voice of President.” In Lincoln’s Cabinet, half the size of the modern one, sessions were rare occurrence and votings on certain propositions were carried out only on explicit demand of the President, who had the power to overturn the decision of Cabinet members. On one particular occasion, president Lincoln decided to put his decision to a vote; all Cabinet members, seven of them, voted against President’s decision with only Lincoln, in the capacity of proposer, voting affirmatively. Voting ending with Lincolns remark ”We have seven nos and one yes – so it’s a yes”.

Relation of Legislative and Judicial Powers Element of great importance in Presidential organisation of powers which rests upon mutuality of branches of powers by ways of coordination is judicial power. All judicial authority is granted to the courts, independence of which is guaranteed, yet they are vested with one additional power that cannot be regarded ”judicial” with utmost certainty. Namely, in the USA only Supreme Court is vested with power to review a law or an official act of a government for constitutionality, the so-called Judicial review. However, the court has the power to strike down

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that law or overturn the executive act, if it believes the law or act to be unconstitutional or to be contrary to law. Thus, they are applying Constitution in direct fashion, which in turn represents exception to constitutionality. Given that U.S. courts have an obligation to respect the legal regulations of superior courts which latter formulated in their adjudications, these decisions have practical value of legislation (whilst they should be relevant only for the case tried.) All judicial power is vested exclusively in the Supreme Court, with all inferior Courts ordained and established by Congress – as a legislative category – leading to the development of vast and powerful network of federal courts (along with already established network of state courts). The courts try all sorts of cases, save the impeachment – power constitutionally granted solely to the Congress. The notion of vesting all judicial power to courts, giving high regard to the idea courts should be separate and independent branch of government, is revolutionary in its nature, but for many contemporaries (late XVIII, early XIX century) the least comprehensible of ideas and not very realistic. However, the influence President exercises on the Supreme Court is relatively modest, among other reasons because he appoints Justices for lifelong tenure. That means that once they are appointed they cannot be ousted. The separation of legislative, executive and judiciary branches is implemented by utilising several excellent decisions which enabled judiciary branch to become an actual third branch of power: - The Constitution specifies that courts are only institution with power to interpret and protect law and Constitution - Justices enjoy the right to hold their offices during good behavior, thus making them independent and effectively providing lifelong tenure - Justices receive compensation for their services which cannot be diminished during their continuance in office, and thus have complete financial independence

Resumé of the Conclusions All relevant governmental institutions in the United States of America are based on very complex legal, political, economic and historical criteria, the complexity stemming from various theoretical and practical influences the

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system suffered during its development. We are primarily refering to very complicated and inconsistent English legal system, French theory and law, specific form of federal organisation, as well as numerous state legal systems with various peculiarities on their own. The United States of America are democratic entity with firmly established legal system and all characteristics relevant for the Rule of Law which function in conjuction with developed mechanisms for protection of human rights and liberties. At the same time, they are federation with established and solid government according to the principle of separation of powers into legislative, executive and judicial branches. In spite of the fact that Constitution did not provide for such principle, it is not difficult to detect that separation of powers is in effect. The principle is most obvious in the strict separation of jurisdictions among legislative, executive and judiciary powers, ie. main holders of the three – Congress, President and Supreme Court. Separation is performed in rigid way, so none of the three branches could interfere with the proceedings of other two. However, since the concetration of powers cannot be exercised to the full extent neither could the separation of powers be performed literally. This indicates the absolute separation of the three branches of power does not exist, since there are various mechanisms which would prevent any of the branches from gaining inappropriately high level of independence, thus making the usurpation of jurisdictions practically impossible. Legislative power is vested in bicameral Congress, composed of Senate and House of Representatives, a body with absolute legislative authority. Executive power, by provisions of Article II of U.S. Constitution, is vested in the President of the USA almost in its totality, hence he exerts wide authority, much wider than the others. Third power is one of judiciary, ie. free and independent judicature, which represents the strongest of pillars in American constitutionality and democracy.

2 Ivana Tucak, LL.M, Assistant Faculty of Law, Osijek, Croatia

A THEORY OF SOVEREIGNTY UNDER THE FEDERAL CONSTITUTION Abstract: It is not enough only to study the provisions of the very text of the Constitution of 1787 fully to understand the meaning of the sovereignty and the federalism notions of the United States of America. The constitutional provisions should be put within the context of the historical events. The comprehension of the relations among the federal government and the member states has been considerably changed since the time of the ”Founding Fathers”. Today the federal government keeps a large number of the functions that the framers of the constitution in 18th century could not even imagine. The decisive role was played by the Supreme Court of the United States that has been qualified as ”a permanent constitutional convention”. So beside the American Revolution, the period of the Civil war and the period of The New Deal, President Franklin D. Roosevelt’s program as a trial response to the Great Depression that marked 1930s, have been qualified as the crucial events in understanding of the American experience with the federalism. Key words: sovereignty, sovereign immunity, federalism, state’s rights, constitution

1 Introduction Remarks – Sovereignty Meaning At the very beginning it is important to notice that the notion of sovereignty since its origin from 16th century has been applied onto so different situations, and has been subject to the permanent redefinition in accordance with the historical circumstances. The conception that in each state must exist an institution that is considered as a supreme one prevailed up to the end of the 18th century. Just then the American colonists, who fought against the arbitrary actions of the English Parliament, developed a new concept of the sovereignty that allowed its

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division. By this study we shall try to present the American conceiving of the sovereignty and its development within the frame of the new form of the compound state that unites the elements of the unitary state and the confederation. In this place we shall only briefly turn to the origin of this concept in Europe. It has been considered that the first one who clearly defined the sovereignty theory it was the French writer Jean Bodin (1529-1596) in his literary work ”The Six Books of the Commonwealth” (Six Livres de la Republique, 1576). The historical circumstances France of his time was in, the chaos that developed from the civil war among the Catholics and the Huguenots, induced Bodin to think how to found the state only by accepting one authority that would have a central and unlimited power. 1 Bodin conceives the sovereignty as the highest, absolute, unlimited, perpetual, original and of laws free power 2 . In the Republic Bodin works on the whole constitutional law and he differentiates three groups of the states, classified in the accordance with the sovereignty holders: monarchy, people state and aristocracy. It is not possible to combine these three forms of the reigns. Since he describes the monarchy as the best and the natural form of the reign that is why his definition of the sovereignty is not this one that could be applied on to all forms of the reign. Primary the sovereignty appears in the possibility of a free enacting: ”Wherefore let this be the first and chief mark of a sovereign prince, to be of power to give laws to all his subjects in general, and to every one of them in particular..” 3 If the sovereign would need the consent of the citizens, of the senate or of the people, he would not be sovereign. 4 The sovereign is consequently, according to the classical Roman doctrine, free of the law obligation (principes legibus solutus est). The sovereign has not been bound by his own laws either by the laws of his predecessors. The sovereign has not been bound by his coronation oath either. The customs are in effect only if the sovereigns give their tacit consent for their validity. 5 Beside enacting, the other characteristics of the sovereign power are: to declare the war and to make the peace, to name the most important government employees, to grant pardons, the right on to

1

Hinsley, F.H., Suverenitet, August Cesarac, Zagreb, 1992, p. 116 Krbek, Ivo, Suverenitet, Rad, JAZU, Knjiga 334, Zagreb, 1964, , p. 80, 3 Bodin Jean, Šest knjiga o republici (izbor), Zagreb, Politička kultura, 2002, p. 58 4 Krbek, op. cit. P. 82; See also Grubić, Nado, ”Oblikovanje i razvitak ideje monarhijskog suvereniteta”, Zbornik Pravnog Fakulteta u Zagrebu, 37: 5-6 /1987, p. 806 5 Grubić, op. cit., p. 807 2

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the supreme court power, the right to mint coins and the right to determine the taxes. 6 However it is important to point out that Bodin made a sovereign to be the master only of positive law, but not the master of the law on the whole either. A sovereign is only legibus absolutus, but not iure absolutus. 7 At first a sovereign is limited by the natural and divine laws. Then a sovereign is limited by the international law and treaties, ”pacta sunt servanda”. 8 A sovereign is limited by so-called ”fundamental law” (leges imperii), which preceded the sovereignty and from which the sovereignty has been derived. These laws concern the inheritance of the throne (on the base of the Salic law). Among Bodin’s followers Thomas Hobbes (1588–1679) particularly stands out. His conceiving of the monarchy sovereignty became more extreme than of the original doctrine. Hobbes made his sovereign unlimited in that way that he made him superior to the natural and the divine laws, what meant the final breaking up with the medieval comprehension. However some authors describe Hobbes’s doctrine of the monarchy sovereignty as ”a solemn tombstone – a glorifier above the catafalque of the English absolute monarchy.” 9 In 17th century English constitutional law had the instruments to limit royal power like Magna Carta libertatum in 1215, Petition of Rights in 1628. As a very important guarantor of the personal liberty appeared Habeas Corpus Act in 1679. In 1688 after the ”Glorius Revolution” the doctrine of parliamentary sovereignty appeared. The Bill of Rights determined that the King was obliged to the law as well. After Glorius Revolution in England the supreme power was kept by King in Parliament, which is a constitutional law term for that indivisible entity consisting of King, House of Commons and House of Lords. The supreme power does not come anymore from the divine rights of the King but from the consent of the people. However after the people have elected the members of the Parliament, the Parliament enact the laws independently without any

6

Grubić, op. cit. p. 808; See also Bodin, op.cit. p. 53-68 (Chapter X – The real characteristics of the sovereignty). 7 According to Zvonko Posavec, Bodin, in contrast to the medieval rulers, who were bound by the laws, Bodin merged two competences in one: the competence of the legislation and the competence of the command. See Posavec, Zvonko ”O suverenitetu” Politička misao, 30:4/1993. 8 Grubić, loc. cit. (notes 6) 9 Krbek, op. cit., p. 84

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exterior influence. 10 The classical definition was given at the beginning of 19th century by William Blackstone. According to him the power of the Parliament is the absolute one, ”what the Parliament doth, no authority upon earth can undo”. 11 The only limitations of the sovereign’s will are the limitations that he imposes himself voluntarily.

2 The Federal Constitution In 1776 the rebellion of the colonies was not exclusively the reaction to the actual politics of the English Parliament but the reaction to the doctrine on the supremacy of the Parliament. 12 In the North America the English reproduced the civilization of their home-land in the new colonies, but the Parliament practice in the aspect of the elected representative parliaments of the colonists as well. 13 During 1760s and 1770s in order to make the imperial power stronger, the Parliament started enacting the laws, which the colonists considered to be opposite to the basic principles of the English constitution. This concerned to the strengthening of the executive power of the governors on the bill of the assemblies, then to the introduction of the professional army, to the tax rate regulations without colonists’ consent, to the suspension of the colonial assemblies. James Wilson will point out that the colonists ”tend toward the defense and the reestablishment of the rights of the colonies.” 14 In July 1776 the colonies declared their independence. The Declaration of Independence proclaimed them as thirteen free and independent states. In 1777 they united in the Confederation; they established a weak central power that experienced the failure because of the military, diplomatic and commerce faults. The Congress as the central body had only the coordination authorities, 10

Krbek, op. cit., p. 91 Sir W. Blackstone, Commentaries on the Law of England, Edition 16, Butterworths, 1825., Vol. 1, Book 2, p. 160, 161, cit. according to Siniša Rodin, Europska integracija i ustavno pravo, Zagreb, 1997, p. 123 12 Amar, Akhil Reed, Of Sovereignty and Federalism, 96 The Yale Law Journal, 1425 (19861987), 1430 13 Podolnjak Robert: Federalizam i republikanizam, Stvaranje američkiog Ustava, Barbat, Zagreb, 2004, p. 37 14 Legal Right to Form a Government. The Annals of America, Encyclopedia Britannica Inc. Chicago 1976, 2; 418-419; cit. according to Podolnjak, op. cit. p. 39 11

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without any mechanism to drive the states and the citizens to carry out its regulations. In 1787 in Philadelphia during the constitutional discussions a severe conflict broke between the federalists, who advocated the strengthening of the federal Government and the anti-federalists, who were opponents to the Constitution and they defended the sovereign constitutional rights of the federal units in regard of existing constitutional act – Articles of Confederation, 1777. 15 The question where should be the sovereignty in the American federal system, as it can be seen from the notes of the discussions, was considerably less pointed out; its real importance this question will show in the years that come. 16 At the Convention most representatives were not inclined to the solution that the full sovereignty should have to be in one or in the other government. There were no them who advocated an unlimited government, the sovereign one as per sample of the English concept of Parliamentary sovereignty. 17 At the time of the Constitution origin the opinion was that the principle of the divided sovereignty was the most appropriate one to the combined state form as it was of USA. The Federalists will particularly insist on that principle, what can be seen in the political essays, that were published in daily press, and which had the main purpose to affect the decision of the representatives of New York State to ratify the Constitution text, where the division of the sovereignty was mentioned several times. Later they were published in a special collection of Federalist, whose authors James Madison, Alexander Hamilton and John Jay, hid under the pseudonym Publius. Today this collection represents the most significant source for studying the intentions of the constitution framers, and many authors turn to these intentions in their discussions on the contemporary state of the American constitutional system. Especially to Madison, who in Federalist No. 39 pointed out that the jurisdiction of the central government ”...extends to certain enumerated objects only, and leaves a residuary and inviolable sovereignty over all other objects to 15

Smerdel, Branko, ”Američke teorije federalizma, uvodna studija” za: Vincent Ostrom, Politička teorija složene republike, Zagreb, 1989, p. 3 16 Podolnjak, op. cit. p. 212 17 As pointed out by James Madison in Federalist No. 51.The Constitution provided ’a double security’ against the power concentration in one place, since the power has been divided between state and federal government and among the departments of the national government as well. The structure of government must provide the proper checks and balances among the different departments. Text available on www.yale.edu/lawweb/avalon/federal/fed51.htm

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several States.» 18 The anti-federalists opposed bitterly to this idea of the divided sovereignty. For the definitive standpoint concerning the sovereignty in the American federal system has been considered that one offered by James Wilson at the time of the ratification polemics: ”my position is, that the sovereignty resides in the people. They have not parted with it; they have only dispensed such portions of power as were conceived necessary for the public welfare... When the principle is once settled that the people are the source of authority, the consequence is that they may take from the subordinate governments powers with which they have hitherto trusted them, and place those powers in the general government, if it is thought that there they will be productive of more good.” 19 Although this notion is unknown to the Constitution of the USA, we can find it in the first sentence of the Constitution: ”We the People of the United States...”. However, here then a question gets opened: whether there is the sovereignty in the people in its state features, what supported Chief Justice John Marshall in McCullock v. Maryland, Abraham Lincoln and Woodrow Wilson or the sovereignty belongs to the people in the state features, what many theoreticians considered – from Jefferson to the representatives of so-called state’s rights school of John Taylor and John C. Calhoune. Calhoune considered that the federal constitution was a contract among the sovereign member states. Each member state can in the same way it became the member, to leave the federation, to convoke the constitutional convention and to recall the previous act on the ratification. So the secession appears to Calhoun as the constitutional right of the member states. The end of the Civil war and the defeat of eleven southern states provided the final solution concerning the possibilities of the practical application of this doctrine. 20

3 The Development of the Constitutional Law As we have pointed out, the very Constitution neither mentions the term sovereignty nor it defines precisely the areas that are in the exclusive competence of the states and those ones that are in the competence of the federal government, what in the years that followed endangered the steadiness and the efficiency of 18

Podolnjak, op. cit., p. 213 Podolnjak, op. cit. p. 215 20 Čavoški Kosta: Ustavnosti i federalizam, Sudska kontrola ustavnosti u anglosaksonskom federalnim državama, Savremena administracija, Beograd, 1982, P. 179 19

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the federal system. Here a need for an appropriate arbiter in the federal relations appeared, and this role was granted to the Supreme Court. 21 It can be said that every more important American transformations of the relations among the federal government and the member states are not the result of the constitutional amendments but of the court interpretation.

3.1 The Establishment of the Supreme Power of the Federal Government In the first decades the practice of the Supreme Court in general was in the favor of the competence extension of the federal government. Here the role of John Marshall, the Chief Justice of Supreme Court was particularly great. During Marshall’s presidency the Supreme Court enacted series of the decrees that were in the favor of them who supported stronger central power and larger competences of the Congress and to the detriment of the protectors of the state’s rights. Here as the key decisions are the early decisions that appear in the disputes McCulloch v. Maryland, Martin v. Hunter’s Lessee, and Gibbons v. Ogden. In these disputes the Supreme Court gave its interpretation of certain sections of the Constitution, specifying the conditions of the relations among the federal government and the member states. McCulloch v. Maryland 22 is far the most important case concerning the establishment of the supreme power of the federal government. Before the Supreme Court appeared the case, where it was necessary to decide concerning two subjects: (a) whether Congress constitutionally possesses the power to incorporate a bank and (b) in that case have the state governments (in this case the State of Maryland) power to tax it? While having made his decision, Chief Justice Marshall relied on the extensive interpretation of Article 1, Section 8 of the Constitution that authorizes the Congress to make all laws which shall be necessary and proper to carry out its mentioned authorizations. Chief Justice Marshall interpreted extensively this provision since in the Constitution there is no provision which, as in the articles of confederation, excludes incidental or implied powers and request that everything granted shall be explicitly and precisely described. 23 ”Let the end be legitimate, let it be within the scope of the 21

Ibid., p. 71 McCulloch v. Maryland, 4 Wheat. 316 (1819) 23 ”Even the 10th amendment... omits the word ”expressly” and declares only, that the powers ”not delegated to the United States by the Constitution nor prohibited by it to the 22

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constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution are constitutional.” 24 After the positive response to this question, the Chief Justice Marshall determined that the authorization to tax is the authorization to destroy. The state governments can not tax the operations of the federal government, once the procedure of the Constitution adoption has been initiated, the newly founded government has got its sovereignty from the citizenry, the sovereignty which is out of the control of the states. The decision was founded on the conviction that the federal government is supreme within the sphere of its work, although limited in its powers. 25 The Constitutions and the laws that have been enacted to perform these authorizations are superior to the Constitutions and the laws of the states and can not be subject to their control. This verdict founded the rule that the Congress have the implied powers to find the new forms of the legislative standardization by the selection of the appropriate means, whenever the Congress find themselves in the new unexpected circumstances. 26 That is why this provision has been called elastic or flexible one. Just with the help of this provision the Congress will significantly increase the work scope of the federal government within next two centuries. Marbury v. Madison (1803) 27 was the beginning of the Supreme Court control of the constitutionality of the federal laws. In Martin v. Hunter’s Lessee (1816) the Supreme Court passed the judgment that it had the authority to revise the judgments of the courts of the states that requested the interpretation of the federal laws. 28 That was made on the base of the ”supremacy clause” of the Constitution (Article VI) that determines that: ”The Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all

States, are reserved to the States respectively, or to the people”. According to Marshall that is so because the people, who adopted this amendment, experienced troubles that resulted from inserting these words in the articles of confederation. Ibid, p. 407 24 Ibid, p. 422 25 Ibid, p. 407 26 Čavoški, op. cit., p. 94 27 Marbury v. Madison, I. Cranch 137 (1803) 28 Martin v. Hunter’s Lessee, 1 Wheat. 304 (1816). Having compared the decision against the constitutionality of the acts of the Congress and of the states, John Calhoun concluded that the former one acts as a limitation on the au-thorities of the federal (central) government, but the latter one acts as its extension. The address on the veto, Febru-ary 1842, according to Podolnjak, op. cit. p. 398.

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Treatise made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, and Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” In Gibbons v. Ogden (1824) 29 for the first time the Supreme Court was engaged in the discussion on the federal government’s power under the Commerce Clause. This Commerce Clause there is in Art. 1, sect. 8, point 3 of the American Constitution. In accordance with this clause the Congress has been authorized ”to regulate the commerce with foreign states, and among the several States and with the Indian tribes.” The Commerce Clause is of the exceptional importance for understanding the nature of the federalism. Namely, one of the main reasons that led to the origin of the federation was to find out the way to prevent the member states to impose a number of different limitations, taxes and bans that cause damages to other member states. 30 That is the reason why the federal bodies get the great powers in the sphere of the commerce and the sales. This constitutional provision has been defined wide and vague, it does not define ”the interstate trade” and the scope of the authorizations of the Congress, what has given a significant role to the courts in solving the lawsuits that have resulted from the division of the authorizations in the sphere of the commerce. 31 That is the reason why the importance of this provision increased or decreased during its application, in accordance with the changes in the ruling doctrine of the judges of the Supreme Court. In Gibbons v. Ogden it was set up the question of the constitutionality of the New York State Law that established the monopoly on the steamship travel in its water. The plaintiff referred to the Federal Coasting Act (1793) in order to effect the right on shipping between New York and New Haven. Chief Justice Marshall declared the law of the New York State to be unconstitutional on the base of the Supremacy Clause and the extensive interpretation of the Commerce Clause of the Constitution. Chief Justice Marshall pointed out once more that the invalidity of any act, which is opposite to the Constitution, results from the declaration that the Constitution is the supreme law. 32 That meant that in the case of the concurrent competence, that is in the sphere where the competences 29

Gibbons v. Ogden, 9 Wheat. 1 (1824) Čavoški, op. cit, p. 107 31 Bowles, Nigel, Politički sustav SAD-a, Osijek, Zagreb, Split, 2003, p. 245 32 Gibbons v. Ogden, 9 Wheat. 1 at 210-211 (1824) 30

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of the federal government and of the government of the member states overlap, the laws that were enacted by the Congress on the base of the Constitution or the treaty concluded in the name of the United States, derogate the acts of the legislative bodies of the member states, although they were enacted within the field of their authorizations that are not controversial. Chief Justice Marshall rejected the narrow interpretation of the power of the Congress on the commerce, which should be in conformity with the theory of the states’ rights since ”that narrow construction would cripple the government, and render it unequal to the object for which it has been declared to be instituted...” 33 In this case Chief Justice Marshall gave a wide definition of the word ’commerce’ that does not include only buying and selling of the goods. ”Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.” 34 After Chief Justice Marshall had gone, his successor on the place of the Chief Justice of the Supreme Court Roger Brooke Taney supported the defense of the integrity of the states and their residuary powers. He thought that the true meaning of the Commerce Clause was that the federal government should enable the smooth commerce functioning, to concentrate on preventing and eliminating of the difficulties, its power should be the negative one. This interpretation assumes the free market and economy. So it is particularly important decision made by the Supreme Court in Colley v. The Board of Wardens of the Port of Philadelphia 35 , where it was pointed out that the commerce activities at the local level, in the absence of the federal law, could be regulated by the law of the member state as well.

3.2 The Civil War and the Concept of Dual Sovereignty At the time of the Constitution origin the representatives of the strong state sovereignty were the progressivists. 36 They pointed out that the decentralization enables the larger freedom and the participation of the citizens in the political life. The most prominent representative was Thomas Jefferson,

33

Ibid, p. 188-189 Ibid. p. 189 35 12 Howard 299, 1852 36 Gey, Steven G., The Myth of State Sovereignty, 63 Ohio St. L. J., 1601, 2002, 1606 34

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who said for the federal government to be ”the most corrupted government in the whole world.” 37 However in the period before the Civil War began, the representatives of the strong state sovereignty had started identifying themselves with the conservative reasons. The question of the sovereignty was connected to the question of the race. The southern states insisted on the rights of the states, which included the nullification right as well (the idea that the member state government is allowed to declare a certain action of the federal government to be invalid one) and the right on the secession. 38 The Civil War meant the end of such ideas and confirmed ”perpetuity and indissolubility of the Union.” That was confirmed in Texas v. White (1869) by the Supreme Court during the mandate of Salman Chase: ”When, therefore, Texas became one of the United States, she entered into an indissoluble relation.” However it does not mean the end of the separated existence of the member states: ”the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government.” 39 So in the decades after the Civil War the Supreme Court accepted the doctrine of the dual sovereignty, the concept where the federal government and the governments of the member states are sovereign, and each one have exclusive control over their respective areas of authority. 40 This theory has been based on the Tenth Amendment, where the federal government has got the authorization only on narrowly defined constitutional tasks, and the supreme power over anything else belongs to the governments of the member states. Within this period the Supreme Court left Marshall’s wide interpretation of the competences of the federal government under the aspect of the interstate commerce settling. 41 The Supreme Court expressed its standpoints through the 37

Smerdel, op. cit., P. 9 K. Janda, J.M. Berry, J. Goldman, Izazov demokracije, vladanje u Americi, Durieux, Zagreb, 1999, p. 72 39 Texas v. White, 7 Wallace 700, at 725 (1869) 40 Edward S. Corvin points out: ”Although the Supreme Court as the organ of the national government interprets the Constitution, it does it in compliance with the Constitution that acknowledge the sovereignty and independence of the states within the range of their authorities.” According to Smerdel, op. cit., p. 12 41 At the end of 19th century the Supreme Court accepted the basic structure of the dormant Commerce Clause that has been still characteristic for the Constitutional law. In this system 38

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decisions that referred to the all-inclusive federal laws that referred to the industry and the economy regulation in Kidd v. Pearson (1888) and United States v. E. C. Knight (1895). In these cases the theory frame was set up that would dictate the decisions of the Supreme Court until the middle of 1930s. In these cases it was shown as well that there was the connection among the sovereign states and the economy theory of the period, through the assumption that the market gravitates toward the natural balance of the supply and demand and to the profound opposition to every state intervention on the market (laissez faire). So the Supreme Court deprived the federal government of the possibility to determine the minimal national hourly wage and the work conditions. Kidd referred to the state regulation of liquor production intended for the delivery to other states. The question was set up if the liquor production could be considered for ”the commerce” in the sense of the Commerce Clause of the Constitution. The Supreme Court considered that the production and the commerce had not the same functions and it saw them as two different parts of an uncoordinated follow-up of the events. That led the Court to the conclusion that the state regulation did not break the authorizations of the Congress, that it regulated the interstate commerce since the production process had a local character and it was exclusively subject to the regulation by the state. 42 For the Supreme Court of this period that was worried what impact should have had the national regulation on the state sovereignty, it had been an irrelevant fact that the problems that appeared at the production level, would inevitably have the impact on the sales of the final products. 43 In the case United States v. E. C. Knight Co. (1895) 44 the Supreme Court passed the judgment that the application of the Sherman Antitrust Act (1890) on the American Sugar Company that tried to monopolize the sugar production taking the control over five residuary independent sugar refineries should be unconstitutional.

of the interstate commerce regulation, the states have been allowed to regulate the interstate commerce, unless their laws discriminate or charge the interstate commerce. But the federal government can preempt that state regulation, simply by adopting the opposite politics through the federal legislative or through an administrative action. See Rahrer 140, U.S. 545 (1891) See also Gey, op.cit., p. 1611. 42 Kidd v. Pearson,128 U.S. 1 (1888) 43 Gey, op. cit., p. 1615 44 156 U.S. 1 (1895)

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Gradually the Supreme Court started supporting the federal laws that used the Commerce Clause for other regulatory purposes. At the beginning of the 20th century there were enacted the laws on the interstate commerce of lottery tickets, spoiled food and prostitutes. However in the case Hammer v. Dagenhart (1918) the Supreme Court declared the Child Labor Act to be unconstitutional, since in the contrast to earlier mentioned acts, the products of the child labor, which circulated among the states, were not harmful. 45 According to the Supreme Court the protection of the state sovereignty from the Tenth Amendment covers the regulation of the domestic commerce and all inherently localized economy activities. And in Bailey v. Drexel Furniture Co. (Child Labor Act – Taxing Child Labor) the Supreme Court had concluded that the federal law that would have concerned to the taxing of such activities, would have been the threat to overthrow all constitutional limitations of the Congress and completely to cancel the sovereignty of the states. 46

3.3 New Deal Period In this period the Supreme Court gave up the efforts precisely to determine the borders among the federal and the states’ governments. The Supreme Court passed the Social Security Act and the National Labor Relations Act, 1937. In the case United States v. Darby (1941) the Supreme Court passed the judgment unanimously that the Congress had the authorization to place a ban on the supply of the products made by child labor, what vacated the judgment in Hammer v. Dagenhart. That was the end of the dual federalism doctrine, of the absolute conceiving of the sovereignty whether of the states or of the national government. 47 The Supreme Court marked the Tenth Amendment as a selfunderstood truth. The Congress power can be carried out to the extreme limits, 45

Hammer v. Dagenhart, 247 U.S. 251 (1918) Bailey v. Drexel Furniture Co. 259 US 20 at 38 (1922) 47 The scholars consider that in this period the theory of the dual sovereignty was replaced by the theory of the cooperative sovereignty, which accordingly, in this period the federal and state functions overlap more and more. The federal government and the governments of the states divide the power and they do their tasks together. The theory was founded on the elastic Constitution provision (Art. 1, Sec. 8), which grants to the Congress the competence ”to make all Laws which shall be necessary and proper” to carry out its mentioned authorizations as well as on the constitutional provision on the supremacy of the federal laws and the Constitution (Art. VI). Janda et. al., op. cit., p. 67. 46

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foreseen by the Constitution. This power can be neither reduce nor expanded by carrying out or not carrying out the state authorities. ”Congress, following its own conception of public policy concerning the restriction which may appropriately be imposed on interstate commerce, is free to exclude from the commerce articles whose in the states for which they are destined it may conceive to be injurious to the public health, morals or welfare...” 48 Since then regularly the Supreme Court has given the advantage to the federal government in regard to the member states.

4 New State Sovereignty However at the end of 20th century the Supreme Court, its conservative five-member majority, revived the concept of the state sovereignty through the series of its decisions. The Supreme Court used the concept of the state sovereignty to extend the authorities of the state governments and at the same time to limit the federal government in each area where their functions overlapped.

4.1 National League of Cities v. Usery In this case, just like in its decisions concerning the state rights in the period before 1937, the Supreme Court referred to the Tenth Amendment. The question was set up: Can the amendments of the Fair Labor Standards Act, 1974, be applied on to state and local governments as the employers. Writing in the name of the majority Justice Rehnquist pointed out the standpoint that this act could not be applied on those aspects of the state employment that came under ”the integral governmental functions of these bodies”. The Congress could not use its regulatory authorities (the Commerce Clause) over ”traditional governmental functions”. 49 In this way among the judges of the lower federal courts and in the very Supreme Court the question what meant the standard of ”the traditional governmental functions” was opened. In the practice it proved to be inapplicable. 48

United States v. Darby 312 US 100 at 117 (1941) ”If Congress may withdraw from the States the authority to make those fundamental employment decisions upon which their system for performance of these functions must rest, we think there would be little left of States’ ”separate and independent existence.” National League of Cities v. Usery, 426 US., p. 833 at 853 (1976) 49

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That contributed to the fact that the Supreme Court rejected National League of Cities v. Usery, 1985, by the decision Garcia v. San Antonio Metropolitan Transit Authority (1985). 50 Justice Blackmun, as the loudspeaker of the majority, rejected the attitude that the Supreme Court could use a special concept on the state sovereignty when judged the authorities of the Congress according to the Commerce Clause. The sovereign rights of the states are to be realized by the political process. In the cases after Garcia, once more the decisions of the Supreme Court pointed out the importance of the states within the federal system of USA. So the Supreme Court protected the law and political integrity of the states in New York v. United States (1997), when the Supreme Court declared the provisions of the federal act (Radioactive Waste Policy Act) unconstitutional ones, that requested that state legislators to take certain steps, what the federal government according the Constitution was not authorized to do. 51 In United States v. Lopez (1995) the Supreme Court considered that the ban of carrying the weapon in the schools exceeded the authorities of the Congress according to the Commerce Clause. 52

4.2 The Eleventh Amendment Jurisprudence In one of the key spheres of the contemporary jurisprudence the Supreme Court created a contradictory doctrine that allowed the state governments to refer to the sovereign immunity on the responsibility for violating the Constitution and the federal acts. In the case Chisholm v. Georgia, 1972, the executor of a South Carolina merchant brought an assumpsit action in the Supreme Court against the state of Georgia for the breach of a war supplies contract. Georgia rejected the court hearing and submitted the objection in writing having referred to the state ”sovereign” immunity from suit. The decision in the favor of the plaintiff caused the stormy reactions among the states, 53 what resulted in adopting the Eleventh Amendment of the Constitution in 1798, which 50

469 U.S. 528 (1985) New York v. United States, 521 U.S. 898 (1997) 52 United States v. Lopez, 514 U.S. 549 (1995) 53 Chief Justice John Jay ”...the sovereignty of the nation is in the people of the nation, and the residuary sovereignty of each state in the people of each state.” Georgia agreed to the suit of the citizens from the other state in the way that Georgia became a party of the national compact. Chislom v. Georgia, 2 US, 419 at 471, 474, (1793) 51

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determines: ”The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subject of any Foreign State”. In the case Hans v. Louisiana (1890) the Supreme Court accepted all-inclusive conceiving of the state sovereignty in the case where the amendment was not applied under its own conditions, and decided that the federal competence did not exist if a citizen sued his own state. 54 So it was created a possibility that in some areas the Congress could pass the acts directed to the citizens of the states, but the full enforcement of these acts could be realized only at the level of the state courts. 55 So the citizens started looking at the word ’federalism’ with the fear, they saw it as a notion used to deprive the citizens of their constitutional rights when they are the victims of the maltreatment of their own governments. The very Supreme Court realized this problem and tried to limit the range of the application of the sovereign immunity principle by different fictions. The most well-known one is the Ex parte Young fiction (1908) that allows the citizens to sue the state that violates the federal Constitution or federal laws, pretending that the government employee has been sued. 56 In the cases like this one of Young, the plaintiff has to prove that the accused is the government employee, who carries out the state authorities. This solution has no practical sense, since if the federal court passes the judgment on the government employee because he disregards the federal acts, the very state will be obliged to co-ordinate its behavior with the federal act. 57 So the Supreme Court tried to coordinate the constitutional immunity of the states with the supremacy of the federal law at the same time. Recently the Supreme Court used the Eleventh Amendment in even more controversial way in Alden v. Maine (1999), in the judges proportion 5:4, where it determined that the states could not be accused in their own courts for violating the federal law. In this way the Supreme Court allowed the states a wide authority to avoid carrying out the federal acts and openly acknowledged that it ran away from the literal text of the Eleventh Amendment. In the Alden case the question concerned the ability of the private parties to sue the state governments before the state courts for violating the provisions 54

Hans v. Louisiana, 134 U.S. 1 (1890) Amar, op. cit., p. 1478 56 Ex parte Young 209 U.S. 123 (1908) 57 Amar, op. cit., p. 1479 55

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on the wages and working time of the Fair Labor Standards Act. The Alden majority founded its decision on the Constitution structure, the history and the authoritative interpretation of the court cases connected to the Tenth and the Eleventh Amendment, which pointed out that the state immunity to the accusations was a fundamental aspect of the sovereignty, which the states enjoyed before the ratification of the Constitution, and they have kept everything up to today with the exceptions, which have been foreseen by the Constitution or certain constitutional Amendments. The states have not been degraded only to the provinces or the political corporations, but they maintained their dignity, although not the full authority of the sovereignty. The Supreme Court granted the constitutional status to ”the sovereign immunity”, that can not be an object of the regulation by the Congress through the Commerce Clause. The English Common Law idea concerning the ban of the accusation against the sovereign in their own courts has been implicitly contained in the text of the Constitution. 58 However the Supreme Court pointed out that the right of the states to refer to the sovereign immunity did not mean that the states could disregard the Constitution or the valid federal act. The states and their employees must respect the obligations that were enacted by the Constitution and the federal law that match the Constitution design.

Conclusion We can conclude that the concept of the sovereignty was in the focus of the political theory as before as after the Constitution was enacted. In the history the number discussions on the question who in the federation belonged the sovereignty to were led, but on the true meaning of the very notion as well. The role of the Supreme Court as the arbiter in the federal relations appeared as the key one because of the fact that the Constitution has not contained the clear borders among the authorities of the federal government and the member states. The last time the decisive fight on the question of the state sovereignty and the authorities of the federal government was led in 30s of the last century. Since then the Supreme Court has given regularly the advantage to the federal 58

Alden v. Maine 527 US 706 (1999) See also Merico – Stephens, Ana-Maria, Of Maine’s Sovereignty, Alden’s Federalism and by Myth of Absolute Principles: The Newest Oldest Question of Constitutional Law, 33 U.S. Davis L. Rev. 325 (1999-2000), p. 327

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government. However during last 10 years the new conservative majority of the judges used the concept of the state sovereignty in the series of the cases that appeared in front of them in order to limit the authorities of the federal government. However in contrast to the last crisis when the judges really supported the concept, which assumed 49 different sovereigns, it has been supposed by the new decisions of the Supreme Court that the states have been sovereign, but that sovereignty that the state possesses is not the absolute one. 59 The state like this one is not problematic only theoretically, but practically very hard attainable as well. The fact that there is no coherent theory, which attained the balance between the supremacy of the federal law and the sovereign rights of the states, has endangered the very principle of the rule-of law, which requests a foreseeable and consistent ruling. 60

59 60

Gey, op. cit., p. 1603 Merico-Stephens, op. cit., p. 332

3 Gordana Mitrović, LL.M Novi Sad, Serbia

ROBERT NOZICK: ANARCHY, STATE AND UTOPIA Jesenski & Turk Publishing House, Zagreb, 2003

Here, before us, is the Croatian edition of the book by a Harvard professor of philosophy, Robert Nozick (1938–2002), called Anarchy, State and Utopia. This was first Nozick’s book. It was published in 1974, and for it the author received the prestigious National Book Award. Anarchy, State and Utopia has been appraised as a key work in contemporary political philosophy. In spite of the fact that it has encountered a great deal of criticism, and that Nozick himself later on revised a great many of the views expounded in it, critics, no matter whether they agree or disagree with the ideas presented in it, have been unanimous in their assessment that this work is distinguished by extremely picturesque and accessible style. The book has been translated into eleven languages, and The Times Literary Supplement proclaimed it one of the hundred most influental books in the period after World War II. Anarchy, State and Utopia is actually Nozick’s critique of the book Theory of Justice, published in 1971 by his Harvard colleague, John Rawls, also nominated for the National Book Award. Nozick criticizes Rawls’ social-democratic liberalism and bureaucratic state of welfare that has a role of redistributing the goods in such a way that even those worseoff or less fortunate (the poor or the disadvantaged) could not complain of being treated unfairly. He advocates a minimal state and the primacy of individual rights. Functions of this minimal state would be reduced to protecting its citizens from violence, theft and breach of contract, and according to him, any state with authority larger than this would violate the natural rights of its citizens. Holding this view, Nozick adopts the libertarian concept of the state, whose functions would be brought down to national defence, police protection and administration of justice, and all the other areas of public life (education, healthcare, social security and the like) should be the responsibility of charities, religious organizations and other private institutions conduct trade at the free

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

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Considering a minimal state the most extensive state that can be justified, in the second part of the book entitled ’Beyond the Minimal State?’, Nozick questions the reasons other authors had used in trying to justify a more extensive state, among which particularly: achieving distributive justice (this part is based mainly on the criticism of Rawls` theory of justice), equality, self-esteem, equality of opportunity, workers` control, voluntary exchange, philanthropy, bigger political equality through decrease in economic inequality, and gain the right to vote on matters of importance to an individual. He develops his theory of justice, i.e. the entitlement theory, as he calls it, according to which the principle of justice is exhausted in the process of original acquisition of property, its transfer by legitimate means, and finally, the rectification of possible violations of acquisition and transfer. The minimal state is big enough to make this kind of justice possible. However, Nozick ends the second part of his book with a hypothetical description of a more extensive state, with a goal of, as he says, of making that kind of state less attractive. This ’more-than-minimal state’ would exist if a person should start selling a part of rights he has on himself. In that way he would become a holding company, selling owner`s share of himself. An individual would then be seen as the owner of the rights for deciding on the occupation he is to choose, kind of clothes he is to wear, person he is to marry, etc. Some of these rights a person would, without violating rights of others, alienate, some he would keep for himself, and people would thus be transformed into holding companies, and become proprietors of each other. This ’ownership of people, by people and for people’, a so-called demoktesis, would be the highest form of social life. In that way, using a process as a sequence of individual actions and without violating anyone`s rights, Nozick thinks that we can evolve from a minimal into a democratic state. At the end, in the third part of his book, entitled ’Utopia’, in order to avoid making minimal state too pale and uninteresting to the reader, ’incapable’ of inspiring people to fight and sacrifice for it, Nozick turns to the utopian theory, and concludes that a minimal state is the only state morally desirable, legitimate and tolerable, that does not violate one`s personal rights, ’the one that in the best way possible implements utopian longings of numerous dreamers and visionaries’. Contrary to extensive states people live in in the modern world, it is an inspiring vision and a framework for utopia. for it treats people as inviolable individuals with their own rights and dignity, and enables them to live their lives, alone or with others of their choice, and to realize their potentials as much as possible in cooperation with other such individuals.

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Having in mind a profound and comprehensive approach that distinguishes Nozick`s concept of minimal state presented in the book Anarchy, State, and Utopia, it is no wonder that, in spite of the numerous criticisms it received, this book, as already stated at the beginning of this review, was soon after its release proclaimed ’a libertarian Bible’ and a breath of fresh air in modern political theory. That makes it modern and attractive enough for the reading public in this part of the world, and its translation into Croatian language, though executed almost three decades after its publishing in the USA, is a great contribution to the study of contemporary American political and legal philosophy in our country. Furthermore, the publication of this book should serve as an incentive for the publishers to translate and publish other works by Robert Nozick in Serbian, that would, in return, prompt domestic authors to study the work of this American author, which is not so comprehensive, as is various and interesting in its subjects and connection to various disciplines.

CLOSING WORD Gordana Vukadinović First of all, I would like to thank all the participants for their efforts they invested in the preparation of their presentations, especially to those who were present here and who developed this cooperation. I would especially like to thank Mrs. Mira Gur-Arie. We are really privileged and honored to have her here. She came all the way from the United States and helped us exchange opinions and deepen our knowledge on American jurisprudence of the 20th century. This topic is of great interest at the moment, and, as you could see, it is inspiring many authors, especially the young ones whom we are extremely proud of. Of course, this event would not have been possible without the patronage of the Embassy of the United States of America in Belgrade and we thank them for that. We have to thank our general sponsor, the SIM Company from Sremski Karlovci, for recognizing the importance of this meeting and helping its realization. We are very grateful for their help, since these efforts we have made and presented will be published in editions in English and in Serbian. We owe special thanks to the Executive Council of the Autonomous Province of Vojvodina, for their unconditional understanding for the work of a newly founded association. The association working in the region where, with a short pause of a few years (when there was the Yugoslav Association for Theory, Philosophy and Legal Sociology), for more than six decades there has not been an association for those involved in the field of theory, ethics and legal philosophy. Our goal is to expand this cooperation and to grow into a regional organization in the future. I would like to express gratitude to our hosts, the Assembly of the Municipality of Sremski Karlovci as well as the Karlovci Grammar School that also made this unique scientific meeting, the first in this region, possible. Thank you all once again. I declare this meeting finished, or perhaps, temporarily closed until we meet again, possibly here in Sremski Karlovci.

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Participants of the conference American Jurisprudence of the 20th Century held in Sremski Karlovci, Serbia, from March 31 to April 2, 2006.

Summary

Opening Speech Gordana Vukadinović . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I On American Jurisprudence 1 Mira Gur-Arie American Jurisprudence in the Third Millennium . . . . . . . . . . . . . . . . . . . . . . . . . . 9 2 Gordana Vukadinović Conteporary American Jurisprudence and Serbian Theory of Law at Beginning of Twenty-first Century . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 3 Agneš Kartag-Odri New Perspectives in American Legal Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

II What is Law? 1 Duško Vrban Economic Analysis of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 2 Milorad Žižić Biorational and Social Determination of the Process of Material Origin of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 3 Miroslav A. Živković Contribution of American Legal Theory in Defining the Concept of Law . . . . . . 73 4 Biljana Knežević Ronald Dworkin’s Natural Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 5 Sanja Đurđić Liberal Theory of Justice of John Rawls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 6 Branko Tucakov Jerome Frank’s Legal Realism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 7 Miloš Marjanović Roscoe Pound’s Sociological Jurisprudence from the European Continental Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

III The Morality of Law 1 Dragan M. Mitrović Lon Fuller’s Legal Philosophy on the Morality of Law in View of His Opponents and Advocates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 2 Marko Božić John Finnis, the Heir of the Aquinian Natural Law Tradition . . . . . . . . . . . . . . 141 3 Marko Trajković Richard A. Posner: The Problematics of Moral and Legal Theory . . . . . . . . . . . 153 4 Danijela Grujić For the Love of One’s Country and the World . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156

IV Argumentation and Interpretation of Law 1 Marijan Pavčnik Constitutional Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165 2 Slobodan Beljanski Pound’s Concept of Law Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 3 Petar Teofilović The Contribution of the US Jurisprudence to Freedom of Expression in the USA Through the Development of Defamation Law . . . . . . . . . . . . . . . . . 197 4 Dragutin Avramović Alan Watson: Legal Transplants – An Approach to Comparative Law . . . . . . . 221

V The Legal and Political System of the USA 1 Dragan Bataveljić Conteporary Constitutional System in the United States of America . . . . . . . . . 231 2 Ivana Tucak A Theory of Sovereignty Under the Federal Constitution . . . . . . . . . . . . . . . . . . 248 3 Gordana Mitrović Robert Nozick: Anarchy, States and Utopia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265 Closing Word . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269 Gordana Vukadinović

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