Устав Републике Србије из 2006. године и начело правне државе – мит или истина?
2006 Constitution of the Republic of Serbia and the Legal State (Rechtsstaat) Principle – Myth or Truth?

Summary/Abstract: Although notions of rule of law and legal state are mostly considered as synonyms, the author points to some substantial differences between them, having in mind value loading of rule of law concept. As a result of comparative analysis of many European constitutions where the principle of legal state and rule of law is constitutionalized, it appears that most European countries accept the principle of legal state (Rechtsstaat), while minority recognize rule of law as a fundamental principle (mostly ex-Yugoslav countries, except Slovenia). Absence of the legal state principle in those countries is probably due to inconsistent terminology, politically motivated borrowings or fashionable and careless legal transplants. Namely, in the official English translations of many European constitutions the term “legal state” is often translated as “rule of law”. In that way, if one takes into account only English translations of different constitutions and not the actual language of the state and of the particular constitution, one may get impression that the rule of law principle is absolutely predominant in European constitutions, and it contradicts to the factual situation. This is not the case with the 2006 Constitution of Serbia, as well as in other ex-Yugoslav countries. They recognize the principle of rule of law in national wording of their constitutions. The author criticizes constitutionalization of the rule of law principle instead of legal state approach. He points to few examples of unnecessary referring to rule of law in the Serbian constitution and of redundant listing and explanations of the rule of law principle. He also criticize decision of the constitutional drafters to incline uncritically to the basically universalistic liberal version of rule of law, which should have been at least partially adapted to social peculiarities of the Republic of Serbia.

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