The Review of Works from the Third Student Conference on the Theory and Philosophy of Law on Judicial Authority held at the Faculty of Law of the University of Belgrade in cooperation with the Serbian Association for Legal and Social Philosophy (IVR Serbia) on October 21, 2016.
Petar Mitrović, Undergraduate student University of Belgrade Faculty of Law
The aim of this paper is to make a contribution to the analysis of judicial creativity in Serbia. More precisely, the claim that is advocated is that adjudication in cases of vagueness necessarily involves law-making. The paper consists of six parts: The introductory part emphasizes the importance of this issue in modern jurisprudence. The second part deals with the analysis of statutory indeterminacies with the primary focus on vagueness. In the next part, I discuss two questions: (1) who is obliged to resolve the problem of statutory vagueness and (2) what are the ways through which Serbian courts perform aforementioned activity. The fourth part lays down arguments that support my conclusion that the judicial process of resolving the problem of vagueness constitutes creative activity, while the fifth deals with possible objections against this claim. Finally, the sixth part explicates the very importance of the paper, as well as its clear limitations in terms of explanatory power.
Key words: Law-making. – Vagueness. – Absolute borderline cases. – Creative jurisprudence. – Supsidiary legislator.
Teodora Miljojković, Student, University of Belgrade Faculty of Law
In this paper I will explore the genesis and main features of the European model, along with the reasons why it was established in the European countries within the three generations – first after the World War II, later in Spain and Portugal, and at last in postcommunist countries during the 90s. The last chapter will be dedicated to the matter of potential crisis of the European model – I will discuss the problems emerging from the practice of the constitutional courts. Are there internal or external pressures for the decentralisation of the constitutional review in Europe?
Key words: Constitutional review. – Constitutional court. – Austrian model. – Problems of practice.
Harun Išerić, Graduate student
The paper deals with the practice of election of domestic judges of the Constitutional Court of Bosnia and Herzegovina and the application of the ethnical principle in this process. The first part represents the ethnic-territorial principle of the constitutional order of Bosnia and Herzegovina and provide basic outlines of the constitutional position of Constitutional Court. The second part discusses theory of elements and types of constitutional custom. The next part of the Paper, (Part III) analysis of the elements of the constitutional custom in the process of election of domestic judges of the Constitutional Court, and therefore determines that this practice represents a constitutional custom. By considering the jurisprudence of the European Court of Human Rights and official documents of bodies which have conducted previous elections of judges, it can be concluded that it is custom which is contrary to the constitutional provisions on the direct application of the European Convention on Human Rights and fundamental freedoms and its protocols (primarily Protocol 12 – general prohibition of discrimination) and to the constitutional provisions on non-discrimination (part four). In support of this conclusion provisions of the previous Rules of Procedure of the Constitutional Court and the views of Serbian constitutional law textbooks authors, are presented. The last part of the Paper (the fifth part) proposes the most appropriate way to change constitutional custom contra constitutionem.
Key words: Bosnia and Herzegovina. – Constitutional court. – Election of judges. – Constitutional custom. – Discrimination.
Marko Ćušić, student, University of Zagreb Faculty of Law
Karlo Kožina, student, University of Zagreb Faculty of Law
Contrary to the classical doctrine of separation of powers, Austrian legal theorist Hans Kelsen claims that there are only two state powers and that what distinguishes them is their function – law creation (legislative power) and law application (executive power). The aim of this paper is to present Kelsen’s view of the judicial power (function) which he situates within the executive power and therefore defines its function as the application of law. However, Kelsen points out that the judicial power, in addition to applying the law, takes part in its creation.
Key words: Kelsen. – Judicial power. – Gaps in the law. – Interpretation. – Separation of powers
Stefan Rakić, Student, University of Belgrade Faculty of Law
The European Commission for Democracy through Law, better known as the Venice Commission (VC) is an advisory body to the Concil of Europe. Primary way of functioning of the Venice Commission is by issuing opinions on constitutional provisions and other legal norms either on its own initiative, or on the initiative of other institutions entitled to request the VC’s opinion for the purpose of assistance in the field of constitutional law. Within its activities, the Venice Commission prepares various studies, amicus curiae opinions etc. In the first part of this paper, I will analyze the organization of the VC and its position in the institutional framework of the Council of Europe. The main topic of this paper are the activities of the Venice Commission concerning constitutional justice, that encompasses the mechanisms representing the foundation on which the VC acts on matters concerning constitutional justice and the attitude of the member states of the Council of Europe towards the VC’s opinions in this matter, and that will be observed through the prism of (non)application of the opinions by the member states, depending on the presence or the absence of outside influences. I will particularly address the constitutional crisis in Poland, that began in the summer of 2015 and the role of the Venice Commission in the unraveling of the crisis.
Key words: Venice Commission. – Constitutional Justice. – Council of Europe. – Normative control
Marica Mišić, Student of Master Studies at University of Belgrade Faculty of Law
Cessation of relations with The Soviet Union 1948/1949. resulted in the abandoning the Soviet model in the regulation of political and legal system, as well as striving for independence of the Federal People’s Republic of Yugoslavia. Then the state reforms have been launched which reflected somewhat in the judicial system. The Organization of national courts Act which was initially adopted in 1945, and then adopted again with the modification the following year, was valid til the passing The Courts Act in 1954. The significance of this act, with regard of the procedure it was passed is in its norms which had power of constitutional provisions because the the procedure was the same as for adopting the constitutional, as well as in the paving the way for the professionalization of judicial duty. It used to be the object of study of constitutional doctrines, but nowadays the theoretical and historical legal disciplines don’t deal with it, and that’s why it is going to be given its display which laid the foundation of the legal system of socialist Yugoslavia, torn of USSR influences.
Key words: FPRY. – Independence, − Reforms. – Courts. − Act.
An interview with professor Samuel Issacharoff
Samuel Issacharoff is a Constitutional law professor at NYU School of Law. His wide-ranging research deals with issues in civil procedure, constitutional law, particularly with regard to voting rights and electoral systems. Numerous articles he wrote helped to establish the law of political process, a new field of study which mainly examines the relationship between democratic principles and the electoral participation of racial, language, and political minorities. Eudaimonia’s editorial board brought this interview after Issacharoff’s great keynote lecture delivered at the International Conference New Politics of Decisionism, which was organised by the Serbian Association for Legal and Social Philosophy and the Faculty of Law in Belgrade. The main issues we’ve addressed in this interview are Issacharoff’s latest book Fragile Democracies: Contested Power in the Era of Constitutional Courts and the decline of democratic institutions that we are witnessing today in the Balkans, but in the Western democracies as well.