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Annals OF THE FACULTY OF LAW IN BELGRADE Belgrade Law Review AНАЛИ ПРАВНОГ ФАКУЛТЕТА У БЕОГРАДУ ЧАСОПИС ЗА ПРАВНЕ И ДРУШТВЕНЕ НАУКЕ Journal of Legal and Social Sciences University of Belgrade Year LXVI, 2018, No. 4 ISSN 0003-2565 : UDC 34/35 International Editorial Board Members: John Cerone (Tufts University, USA), Silvio Ferrari (University of Milan, Italy), Kenneth Einar Himma (University of Washington, USA), Christa Jessel Holst (Max Planck Institute for Comparative and International Private Law, Hamburg, Germany), Thomas Koenig (Northeastern University, USA), Peter Koller (University of Graz, Austria), Janez Kranjc (University of Ljubljana, Slovenia), Werner Krawietz (University of Münster, Germany), Rainer Kulms (Max Planck Institute for Comparative and International Private Law, Hamburg, Germany), Ingeborg Maus (Goethe University Frankfurt, Germany), Thomas Mertens (Radboud University, Netherlands), Slobodan Milačić (University of Bordeaux, France), Paul du Plessis (The University of Edinburgh, Scotland), Vesna Rijavec (University of Maribor, Slovenia), Željko Šević (Sohar University, Oman), Gerhard Thür (Institute for the Study of Ancient Culture, Austria) University of Belgrade Editorial Board Members: Zoran Tomić, Nebojša Jovanović, Goran Ilić, Bojan Milisavljević, Vojislav Stanimirović, Danilo Vuković Editors-in-Chief: Marija Karanikić Mirić Alan Watson Deputy Editor-in-Chief: Boris Begović Managing Editors: Miloš Vukotić Nikola Ilić Novak Vujičić Proofreading: Vuk Tošić Publisher: University of Belgrade Faculty of Law Layout Manager: Jovan Đorđević Cover Design, Type Setting and Layout: Dosije studio, Belgrade Printed by: Službeni glasnik, Belgrade Annals OF THE FACULTY OF LAW IN BELGRADE Belgrade Law Review AНАЛИ ПРАВНОГ ФАКУЛТЕТА У БЕОГРАДУ ЧАСОПИС ЗА ПРАВНЕ И ДРУШТВЕНЕ НАУКЕ Journal of Legal and Social Sciences University of Belgrade Year LXVI, 2018, No. 4 ISSN 0003-2565 : UDC 34/35 The Annals of the Faculty of Law in Belgrade – Belgrade Law Review Year LXVI, 2018, No. 4, pp. 1–188 UDC 34/35 ISSN 0003-2565 TABLE OF CONTENTS ARTICLES Michael Stolleis, Legal Pluralism in the 19th and 20th Century – – – – – – – – – – – – – – – – – – – – – – – – – – 5 Sima Avramović, Mixture of Legal Identities: Case of the Dutch (1838) and the Serbian Civil Code (1844)– – – – – 13 Dejan Popović, Svetislav V. Kostić, Legal Certainty and Taxation: The Problem of Retroactive Interpretation– – – 38 Marko Davinić, Ivana Krstić, The Capacity of the Administrative Court in Serbia to Deal with Asylum Cases – – – – – – – – – – – – – – – – – – – – – – – – – – – 56 Vladimir Savković, Do TFEU Provisions on Free Movement of Goods Apply to Private Parties – Expanded Vertical or Horizontal Direct Eff ect? – – – – – – – – – – – – – – – – – 84 Jernej Podlipnik, The Legal Nature of the Slovenian Special Tax on Undeclared Income – – – – – – – – – – – – – – – – – – 103 Marko Stanković, Judiciary in the Serbian Constitution of 2006 and a Critical Review of Draft Amendments – – – – – – – 114 Mihajlo Vučić, Binding Eff ect of Provisional Measures as an Inherent Judicial Power: An Example of Cross-Fertilization – – – – – – – – – – – – – – – – – – – – 127 Bojan Spaić, Justifi ed Epistemic Authority (in Legal Interpretation) – – – – – – – – – – – – – – – – – – – – – – – 143 2 Ana Odorović, The “New” Paternalism in Consumer Credit Regulation: When, Why, and How? – – – – – – – – – – – 156 IN MEMORIAM Sima Avramović, Alan Watson (1933–2018)– – – – – – – – – – – 177 Mario Telò, Barbara Delcourt (1967–2017) – – – – – – – – – – – 181 Institute for European Studies, Université libre de Bruxelles, Barbara Delcourt (1967–2017) – – – – – – – – – – – – – – 183 Instructions to Authors – – – – – – – – – – – – – – – – – – – – – – – 185 3 ARTICLES UDC 340.124”18/19” CERIF: H300 DOI: 10.5937/AnaliPFB1804005S Michael Stolleis, PhD* LEGAL PLURALISM IN THE 19TH AND 20TH CENTURY** Legal pluralism as a pre-modern and well-known phenomenon seemed to be domesticated by the “modern state” with its sovereign position as creator of the law. Today the phenomenon is back. Today lawyers struggle not only with multiple levels of normativity (national law, European law, international law, legal networks without a state) but also with the cultural diversities of interpretation and practice. Key words: Multi-normativity. – Legal pluralism. – Sovereignty. – Cultural diversity of law. What legal history and sociology of law, international law and legal theory are currently experiencing is a great “awakening”. New perspectives are becoming apparent everywhere: The vision of a state and a community of states in a regulated world, which are organized by “one law”, has dissolved in an instant. For a long time lawyers dreamed of thinking that way. The notion that the law could merge nationally as well as internationally into a rational order, was the dream of not only taxonomists of natural law in the 17th and 18th century, but also of the 19th century positivism thinkers of pyramidally organized legal systems and the Pure Theory of Law by Hans Kelsen. If this had been reasonable, all human conflicts could be solved legally. Ultimately, all litigations and courts would vanish. A glance at a “codex”, composed in universal language, would suffice. * Prof. em. Dr. Dr. h. c. mult., Johann Wolfgang Goethe-Universität Frankfurt am Main, Max-Planck-Institut für europäische Rechtsgeschichte, [email protected]. ** The paper corresponds to keynote speaker presentation by the author at the Conference “Legal Pluralism in 19th and 20th Century” held at the University of Belgrade Faculty of Law on March 16/17, 2018. 5 Annals FLB – Belgrade Law Review, Year LXVI, 2018, No. 4 If you think of it this way, a utopian character is instantly recognizable. Utopia could also be called absurdity because the diversity of interests, values, collective identities, physical characteristics, languages, rhythms, lifestyles and life blueprints, and the diversity of power, in particular, cannot be resolved. If you wanted to suppress diversity, one could only do it with force and, as we know from the experiences of the 20th century, this would be a futile undertaking. It is not easy to dissuade people from their “peculiarities” through sheer pleas or legal instructions. The world is and will remain diverse. Conformity achieved through force would be a homogenous and unbearable hell. However, historical facts reveal that attempts to erase identities have been made time and again. A concept of something “different” is still a constant challenge for human beings. Even children want to be just “like everyone else”; they want the same clothes and the same toys. Anyone who is “different” has to face the fact that sooner or later they will be ostracized by the others or forced to fit in. Adults are not any better: mainstream societies isolate themselves from minorities; they prosecute and destroy them. Under the 18th century central idea of égalité, they want to eliminate everything that is different.1 Traditional disparities in status, age, profession, opportunities, income (and so on) should no longer be apparent. Idealistically put, everyone was supposed to be subordinate to the force of the state, as a common “house of all societal interests” of the citizens. This is still true even today: equality is natural, inequality requires special legitimizing reasoning. If you look back at the legal history of the modern era, you will realize that since the 15th and 16th centuries the “modern state” has emerged as the winner of the diverse corporative society of the late Middle Ages. The desire of the people in power to dominate led to the formation of the centrally governed state. The aristocracy lost its leading role during warfare: they either became impoverished or they became officers, diplomats, and officials. In the 16th century, the cities in Central and Eastern Europe lost their leading position due to financial and trade crises, as well as the occupation of the Eastern Mediterranean by the Ottomans. Meanwhile, the conquest and colonial western powers (Spain, Portugal, England, the Netherlands and France) conquered the world and got rich, under their respective state commands. The Roman Church lost its monopoly to Lutheranism and the Reformed Churches. Ever since we have known of the multiplicity of churches, religious communities and many small ideological groups. 1 M. Stolleis, “Historische und ideengeschichtliche Entwicklung des Gleichheitssatzes”, Gleichheit und Nichtdiskriminierung im nationalen und internationalen Menschenrechtsschutz (Hrsg. R.Wolfrum), Heidelberg 2003, 7–22. 6 Michael Stolleis (p. 5–12) In other words: the modern state established itself and its control through legislation, above all different social orders. The state gained all power through the term “inner sovereignty”: aristocracy, cities, and churches had to obey the state, more precisely the “universal law” derived from it. In 1789, the régime féodal in France was brought down; in Germany and other European countries the privileges of the aristocracy were limited (patrimonial courts, entailed estates, tax exemption, latitude in military service, inequality of voting rights, etc.), and after medieval guilds were dissolved, the only thing left was the strong state. Its counterbalance was the liberal society. Because of this, the national public law confronted the law of socially free individuals, ius publicum et privatum. Public law consisted of constitutional law and administrative law on the one hand, and on the other hand of international law,

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