The article explains the normative foundations of the use of foreign law in constitutional reason... more The article explains the normative foundations of the use of foreign law in constitutional reasoning. It pursues four claims. First, it argues that a normative explanation of the use of foreign law must elucidate the connection between foreign legal facts and moral values. Second, it distinguishes between the deductive model of the use of foreign law, which ascribes value to foreign legal facts directly, and the reflective model, which ascribes value to the outcomes of the reflective process facilitated by foreign legal facts. Third, it shows how the deductive model fails to explain the value of foreign law for constitutional judgment. Fourth, the article demonstrates how the reflective model can be justified with a reference to a set of virtues of good moral judgment, but argues that this model poses important limits to the use of foreign law.
The article explores the relationship between the use of foreign law in courts and legal positivi... more The article explores the relationship between the use of foreign law in courts and legal positivism. The point of departure is Jeremy Waldron’s notion that foreign consensus is our law; such law exists outside of a legal system, depends on its moral merits and hence brings some of the central positivist commitments into question. The article maintains that even if foreign consensus were our law, this would not undermine legal positivism, and – moreover – that foreign consensus is actually not our law. In so doing, it advances an account of foreign law as a facultative theoretical authority that is best explained by the positivist idea of judicial law-making.
Rad predstavlja osvrt na zbornik radova Militantna demokratija – nekada i sada urednice Violete B... more Rad predstavlja osvrt na zbornik radova Militantna demokratija – nekada i sada urednice Violete Beširević. U prvom delu, autor nudi prikaz i kritiku priloga iz zbornika, ukazujući istovremeno na moguće pravce budućih istraživanja o militantnoj demokratiji. U drugom delu, autor razmatra tezu prema kojoj se vrednost demokratije iscrpljuje principom jednakosti autonomija, te je koncept militantne demokratije protivrečan jer vređa ovaj princip. Braneći šire razumevanje vrednosti demokratije i suštinsko poimanje autonomije, autor tvrdi da postoji neprotivrečno moralno opravdanje militantne demokratije koje polazi od principa jednakosti autonomija ali se na njega ne može svesti.
This chapter analyzes the transformation of legal enforcement in Europe from the perspective of j... more This chapter analyzes the transformation of legal enforcement in Europe from the perspective of justice. First, it identifies general processes that challenge the traditional conception of enforcement. The argument here is that there are at least three important developments in this respect: new modes of regulation lead to fragmentation and then collectivization of enforcement. Second, the chapter argues that as a consequence of these developments the enforcement in Europe becomes a regulated market for dispute resolution: competition between diverse enforcement mechanisms becomes the guiding norm, and the provision of justice becomes a service. This points to some problems in the design of enforcement in Europe that need to be adequately addressed. The chapter argues that the realization of justice becomes a fundamentally different task in the new environment, and then suggests several ways in which enforcement in Europe could become more responsive to these novel circumstances.
The paper explains the role of the Serbian constitutional court during the democratic transition ... more The paper explains the role of the Serbian constitutional court during the democratic transition on two levels: normatively, it assesses the performance of the court in securing liberal-democratic values; and descriptively, it accounts for the factors that affected its performance. In contrast to the dominant narrative about the positive impact of constitutional courts on democratic transition, the paper argues that the role of the Serbian constitutional court in protecting liberal-democratic values was rather modest. The paper identifies a number of factors that negatively affected the performance of the court as it struggled to build the authority in a legally and politically unstable environment.
The article explains the normative foundations of the use of foreign law in constitutional reason... more The article explains the normative foundations of the use of foreign law in constitutional reasoning. It pursues four claims. First, it argues that a normative explanation of the use of foreign law must elucidate the connection between foreign legal facts and moral values. Second, it distinguishes between the deductive model of the use of foreign law, which ascribes value to foreign legal facts directly, and the reflective model, which ascribes value to the outcomes of the reflective process facilitated by foreign legal facts. Third, it shows how the deductive model fails to explain the value of foreign law for constitutional judgment. Fourth, the article demonstrates how the reflective model can be justified with a reference to a set of virtues of good moral judgment, but argues that this model poses important limits to the use of foreign law.
The article explores the relationship between the use of foreign law in courts and legal positivi... more The article explores the relationship between the use of foreign law in courts and legal positivism. The point of departure is Jeremy Waldron’s notion that foreign consensus is our law; such law exists outside of a legal system, depends on its moral merits and hence brings some of the central positivist commitments into question. The article maintains that even if foreign consensus were our law, this would not undermine legal positivism, and – moreover – that foreign consensus is actually not our law. In so doing, it advances an account of foreign law as a facultative theoretical authority that is best explained by the positivist idea of judicial law-making.
Rad predstavlja osvrt na zbornik radova Militantna demokratija – nekada i sada urednice Violete B... more Rad predstavlja osvrt na zbornik radova Militantna demokratija – nekada i sada urednice Violete Beširević. U prvom delu, autor nudi prikaz i kritiku priloga iz zbornika, ukazujući istovremeno na moguće pravce budućih istraživanja o militantnoj demokratiji. U drugom delu, autor razmatra tezu prema kojoj se vrednost demokratije iscrpljuje principom jednakosti autonomija, te je koncept militantne demokratije protivrečan jer vređa ovaj princip. Braneći šire razumevanje vrednosti demokratije i suštinsko poimanje autonomije, autor tvrdi da postoji neprotivrečno moralno opravdanje militantne demokratije koje polazi od principa jednakosti autonomija ali se na njega ne može svesti.
This chapter analyzes the transformation of legal enforcement in Europe from the perspective of j... more This chapter analyzes the transformation of legal enforcement in Europe from the perspective of justice. First, it identifies general processes that challenge the traditional conception of enforcement. The argument here is that there are at least three important developments in this respect: new modes of regulation lead to fragmentation and then collectivization of enforcement. Second, the chapter argues that as a consequence of these developments the enforcement in Europe becomes a regulated market for dispute resolution: competition between diverse enforcement mechanisms becomes the guiding norm, and the provision of justice becomes a service. This points to some problems in the design of enforcement in Europe that need to be adequately addressed. The chapter argues that the realization of justice becomes a fundamentally different task in the new environment, and then suggests several ways in which enforcement in Europe could become more responsive to these novel circumstances.
The paper explains the role of the Serbian constitutional court during the democratic transition ... more The paper explains the role of the Serbian constitutional court during the democratic transition on two levels: normatively, it assesses the performance of the court in securing liberal-democratic values; and descriptively, it accounts for the factors that affected its performance. In contrast to the dominant narrative about the positive impact of constitutional courts on democratic transition, the paper argues that the role of the Serbian constitutional court in protecting liberal-democratic values was rather modest. The paper identifies a number of factors that negatively affected the performance of the court as it struggled to build the authority in a legally and politically unstable environment.
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