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A Communist Rechtsstaat?—The Case of Yugoslav Constitutionalism

Published online by Cambridge University Press:  28 March 2014

Winston M. Fisk
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Extract

PLATO'S ACCOUNT OF THE PLACE OF LAW IN THE POLITICAL ORDER IS in two phases, One is found in the Republic. The Republic is utopian; it describes the ideal state. In this state law has no place; ideal rulers do not need to be bound by law in order to do justice, and governmental relationships need not be defined by law if they are by nature ideal. But later, in the Statesman and the Laws, Plato moves from the utopian and ideal to describing the best state practically obtainable – the second-best state, which because of the necessities of the human condition falls short of the ideal, the Utopia. Here law is readmitted, indeed is given high place; the second-best state, which is the best of earthly states, is in fact to be held together by the golden cord of the law.

Type
Original Article
Information
Government and Opposition , Volume 5 , Issue 1 , 01 January 1970 , pp. 41 - 53
Copyright
Copyright © Government and Opposition Ltd 1970

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References

1 See Brian Chapman, ‘The Police-Statc’, in Gooernment and Opposition, 3, pp. 428–40 (1968), where thc tcrin and its companions, Justizstaaf and Polizeistaat, are discussed and thcir rclationships to public law and constitutionalism at least suggested.

2 See e.g. thc basic study of East European politics by Ioncscu, Ghila, The Politics of the European Commiinist States, London, 1967.Google Scholar

3 The Copernican turn can probably be put at about 1949–51, after Yugoslavia had broken with Russia and whilc it was beginning to grope for its ‘own way’. Thus, for example, it was thcn that workers’ self-management was begun, the courts were moved toward some power and independence, and the more extreme roles of the political police began to recede.

4 The economic reforms of 1965 and thereafter, among other developments, are profoundly important.

5 See Giovanni Sartori, ‘Constitutionalism: A Preliminary Discussion’, American Polifical Science Review, 56, pp. 85 3–64, December 1962, and the subsequent exchange between Sartori and Morris-Jones, ibid., 59, p. 439, June 1965. And today any consideration of constitutionalism must take account of Vile, M. J. C., Constitutionalism and the Separation of Powers, Oxford, 1967.Google Scholar

6 There may be some doubt if one gives the greatest possible weight to the procedural vicw of democracy, under which all hangs upon the process of participation and so, perhaps, upon aspects of the garantste element.

7 A fifth, but one less closely and neccssarily linked with constitutionalism, would have to be added in any more comprchcnsivc study: the special and highly interesting variations Yugoslavia has given to federalism and decentralization.

8 A politics in the classic Western sense well expressed by Crick, Bernard, In Defnre of Politics rev. ed., Baltimore, Penguin Books, 1964.Google Scholar

9 The new system, which went into effect beginning in 1967, is as regardful of legal constraints upon procedure and legal definition and protection of the accused’s rights as any in Europe, and seems to be rather well observed in practice, even in cases with political aspects.

10 What is said here on this subject must be regarded as provisional. A more complete study by Dr Richard Kindcrslcy of St Antony’s Collegc, Oxford, is announced.

11 ‘Ustavnost i zakonitost’; see chapter 7 of the 1963 fcdcral constitution.

12 These latter are genuine courts, much more independent and important than the usual communist Arbitrazb

13 I.e., litigation by private citizcns and independent organizations against governmental and quasi-governmental agencies. It makes up about a quarter of the business of the republic and federation supreme courts, and is an extremely important influence for legality.

14 See, e.g., the materials contained in the standard American studies of the Soviet system, those by Berman, and Berman, Hazard. Harold J., Justice in the U.S.S.R., rev. ed., Cambridge, 1963 CrossRefGoogle Scholar, and Hazard, John N., The Soviet System of Government, 4th ed., Chicago, 1968 Google Scholar. See also those contained in Gsovski, Vladimir and Grzybowski, Kasimierz, Governmenf, Law and Courts in ibe Soviet Union and Eaztern Europe, 2 vols., New York, 1959 Google Scholar.

15 Often quite enthusiastic; some courts have relished the new role and most have been at least willing to play it.

16 Ghita Ionescu, The Politics of the European Communist States.

17 See Sartori, Giovanni, ‘Opposition and Control: Problems and Prospects’, Government and Opporition, I, pp. 149–54, 1965–66.Google Scholar

18 The present study is based upon very numerous interviews, and much discussion and observation, in Yugoslavia since September 1965, and the writer records here his heavy debt of gratitude to the many people who have helped him.