Full text of the paper:
Collected Papers of the Faculty of Law in Novi Sad, University of Novi Sad
2022, vol. LVI, No. 1, pp. 257-279
Language of the paper: Serbian
Original scientific paper
udk: 340.130:342.565.2(497.11)
doi:10.5937/zrpfns56-37666
Author:
Brano Hadži Stević
University of East Sarajevo
Faculty of Law
brano.hadzi.stevic@pravni.ues.rs.ba
Abstract:
Articles 4 and 194 of the Constitution of the Republic of Serbia prescribe that the legal order of Serbia is unique. Interpreting this constitutional principle, the Constitutional Court of Serbia has developed a doctrine on the distinction between systemic and ordinary laws, based on the primacy of systemic laws over ordinary ones. Ordinary law must be in accordance with the systemic law because otherwise it is unconstitutional. Explaining its position, the Consti- tutional Court claims that the constitutional principle from article 4 requires that all laws be in accordance (consistency) and act in the same direction (coherence). We will analyze the principle of coherence, its relationship with consistency, and then apply those insights to the doctrine of the Constitutional Court, in an effort to determine the merits of such a distinction. The main hypothesis from which the paper starts is that the Constitutional Court gives absolute primacy to the prin- ciple of unity of legal order, which we consider axiologically acceptable but unac- ceptable from positive law aspect, since this principle must be considered in the light of other principles, especially in the light of separation of powers.
Keywords:
Constitutional Court of Serbia, uniquness of legal order, systemic and ordinary laws, principle of coherence, principle of consistency.