"Legality" of the Legal Order in Postwar Serbia From 1944 to 1946: Organization and Work of the Judiciary

Abstract

The judiciary in Serbia is heir to a long tradition of political influence, which was particularly visible during the communist regime after World War II. Violations of the presumption of innocence, retroactive sentencing and a denial of basic human rights are just some of the features of the work of the postwar “judiciary” in Serbia, between 1944 and 1946. This paper analyzes the implications of revolutionary legislative activity, the structure and organization of the Military Court and the Court of Honor, and examines to what extent the dominant political culture, implemented through the state coercive apparatus, influenced judicial adjudication. The paper elaborates on Radbruch’s idea of “statutory lawlessness”, Fuller’s notion of “procedural natural law” and “internal morality of law” and argues that the postwar law of communist Serbia did not exercise formal and procedural justice, and cannot be called a legal system in the full sense of the word.