НАСЛЕЂЕ ПРАВНЕ КУЛТУРЕ И ЕВРОПСКЕ ИНТЕГРАЦИЈЕ СРБИЈЕ

In the context of the EU integration, it is certainly insufficient to harmonize only the positive law and the institutional regulatory framework. In order to provide for the implementation and application of the positive law, the political and legal culture must be congruent with the legal tradition of the European Union. The “implantation” of legal institutes is a fashionable trend common to all transition countries, which fail to recognize a significant and inevitable fact that law is created and applied in the country-specific traditional, cultural and social context. Legal norms achieve their intended purpose only when they are reinforced by a number of other traditional, cultural, political, economic, and social circumstances. Hence, there is a specific functional and structural relation between law and social culture: on the one hand, law is the product of society; on the other hand, law is also the creator of social norms. Consequently, instead of “copying” the legal norms of the European Union, it is necessary to create a social framework for the implementation of applicable, effective and equitable EU law. In addition to nomotechnics, scientific research on the “harmonization of Serbian law with the EU law shall include the analysis of other factors, which are only apparently outside the legal framework but which are important for the general outcome of this process. (1) Our legal culture is largely authoritarian, which is evident in the prevalence of power in the process of making and applying the law and in the dependence of the judicial system from the executive branch of government. Law is an instrument of political power of the legally unaccountable executive branch of government. The authoritarian legal rules are not an expression of reason, prudence, wisdom and general public interest but a temporary constellation of interests of power-holders while the normative activity is a short-term tactics for accomplishing these interests. As the public interest is defined and normatively framed in line with these interests, there are diverse quasi-techniques which reflect the arbitrary application of law. (2) The recent state-building legal history is characterized by a prominent legal discontinuity, which has two forms of expression: first, legal discontinuity is a result of frequent changes of different and often conflicting socio-political systems of government, which are necessarily accompanied by respective changes in the positive legislation;