In this article, the author analyses the development of law of the SFRJ and the
contemporary Serbian Law since the 1980s up to date in selected areas of law,
and examines how “European” it has been throughout this period. In this context,
the term “European” is not to be understood in terms of harmonization
with the acquis but rather as a pre-stage in this course which implies a general
orientation towards continental European principles and openness towards
other European states (in particular, concerning the legal provisions on foreign
investment). The analysis has yielded the following conclusions:
Under a “socialist layer” (including, for example, the Constitution of SFRY, the
Law on Associated Labour and some provisions of the Criminal Law such as
Article 133), the law of the SFRJ in the 1980s was much more European than it
is actually known in Western Europe.
The examples may be found in the substantive provisions of the 1978 Law on
Obligations and in the field of procedural law, particularly in the Law on Civil Procedure was tailored upon the model of the Austrian Civil Procedure Code
(called the “Klein`sche ZPO”).
Moreover, in the field of constitutional and administrative judiciary, the SFRY
was not only ahead of the other socialist countries but also ahead of a lot of other
Western European countries.
The opening towards other European states was also reflected in the legislation
on foreign investment. In this context, it is worth noting that the SFRJ was the
first socialist state which enacted such legislation as early as in 1967.
By enacting the Law on the Social Capital and the Law on Enterprises, the SFRY
began the transformation of its legal system in 1988, well before the fall of the
Berlin wall and considerable earlier than the traditional socialist states.
For these reasons, it is justified to say that the law of the SFRY and Serbia during
the socialist time was (underneath the layer of socialist law) already more
European than a foreign observer might assume.
Therefore, Serbia would actually have a good starting position for a further “Europeanisation”
of its law. However, there have been some developments lately
which seem to leading Serbia in the opposite direction. Namely, in the field of
Company Law and particularly Criminal Procedure Law, the Serbian legislator
has introduced some elements of the Anglo-American law. Not only does it make
the Europeanisation of the Serbian Law more difficult but it is also inconsistent
with the Serbian legal tradition. It additionally causes superfluous discrepancies
and contradictions in the Serbian legal system.
The author concludes that Serbia would be better off if it would only listen to the
many voices from Serbia and remember its own European tradition, instead of
following foreign advisors urging for the change the legal system or at least the
isolated transplantation of particular legal institutes which are fully inconsistent
with the Serbian legal tradition and, thus, stand out like “aliens” in the Serbian
legal system. Ultimately, the road from Serbia to Europe does not go through
America, either geographically or in terms of law.