Kevin Hazlett
But Serbia’s move toward Dahl’s vision of democracy has yielded far different results. In October 2012, the Serbian government banned a Belgrade gay pride march for the second consecutive year, due to security concerns and pressure by the Serbian Orthodox Church to prevent such a “parade of shame” that would cast a “moral shadow” on Serbia (Stojanovic). This action prompted Amnesty International, a non-governmental human rights organization, to condemn the Serbian government for “going against its own legal and constitutional protections” (Amnesty International). Surely this is not the face of Dahl’s modern democracy.
The disparity between theoretical and practical democracy lies in the fabric of the nation itself. Serbia, unlike much of contemporary Europe, has a longstanding and marked tradition of suppressing free expression. This tradition, in a culturally conservative nation like Serbia, stands particularly strongly against gay rights. Mere legislation of “freedom of thought,” as Serbia’s Article 43 attempts, fails to surmount the massive barrier of tradition suppressing such symbolic speech as a gay pride parade. So what would make Article 43 legitimate, even if it is not fully practiced? To call Article 43 valid as law would depend on the theory of “legal positivism,” or the idea that the source of the law, and not the mores of the society, determine whether a law is valid. The question here is whether we should see the validity of such a law as it is written or as it is practiced; such a question becomes especially important when debating such a fundamental, democratic right as the freedom of expression and thought. To understand why the Serbian government is unable to carry out Article 43, we must look at its overreliance on the theory of legal positivism as well as its insurmountable tradition of undemocratic suppression of free expression. A nation without a history of freedom of expression can no more legislate that freedom than any historically undemocratic nation can merely legislate democracy; it must instead take a willing role in protecting and creating an enforcement mechanism for such a freedom. The case of Serbia thus has broader implications both for fledgling democracies and for agents, like the United States, invested in spreading democracy.
Because understanding the problem of legislating democracy and freedom of expression hinges on cultural mores and historical precedent, let us paint a fuller picture of Serbian history. Serbia is a relatively young sovereign state, and examining the Serbian free expression tradition must therefore not begin with its independence but instead with its existence under foreign rule. For the majority of its modern history, roughly from the end of the medieval era until the beginning of the 19th century, Serbia was ruled by the Ottoman Empire. This submission to a foreign entity, says political scientist Walter Clemens, fostered a Serbian nationalist mentality (258). Clemens notes that the Ottoman Empire’s administrative treatment of Serbia, and particularly its subjection of the non-hierarchal Serbian Orthodox Church to the Greek patriarchy, left behind “a legacy of hate” (258). But the Ottomans also left behind a legacy of Serbian “ethnocentrism.” By disassembling important Serbian institutions (like the Orthodox Church) and subjecting them to outside control, the Ottomans instilled a Serbian antipathy toward outside cultures. This ethnocentrism preceded Serbia’s great nationalism and sense of cultural superiority. These factors, claims Clemens, contributed to Serbia’s undemocratic nature (258).
The Serbia of the nineteenth and twentieth centuries was hardly more progressive. While Serbia ushered in some democratic reforms at the turn of the twentieth century with the constitutional reform under Peter I, such as limited freedom of press and local self-government, many Serbians criticized the Constitution for being “too liberal and too advanced for the Balkan peninsula” (Vucinich 67). Even under these reforms, Serbia’s political system remained undemocratic; indeed, the ruling party employed political discrimination and intimidation to suppress the opposition party, and Peter’s cabinet usurped powers granted to the parliament in matters like the budget and the army (Vucinich 67). These undemocratic elements were exacerbated following World War II, when Serbia, now part of the Socialist Federalist Republic of Yugoslavia (SFRY), reversed many of its reforms. In Serbia Now, Dr. Pavle Nikolic of Belgrade University laments that “[i]n half a century of totalitarian rule [under the SFRY] . . . Serbian statehood, constitutionalism, and democratic tradition have been shattered” (Nikolic, Perovic, and Protic 7). Whatever movement Serbia may have made toward democracy after its independence from the Ottoman Empire, it did not last long enough to create a tradition of democratic free expression, especially without an equal undertaking by the State to support its constitutional provisions. The decades following it eradicated the idea of those freedoms from the minds of the new generation.
Arguably, the problems inherent in Serbia history climaxed under the Milošević regime, in which the government stifled the spread of information, virtually eliminated the freedom of the press, and waged a genocidal war in Bosnia, Croatia and Kosovo. Although instances of journalists being beaten or imprisoned were widely publicized, the bulk of the government’s suppression of the press was much subtler (Gordy 78). The government attacked and discredited independent media with the charges that they were “irresponsible, controlled by foreign influences, and lacking in objectivity” (78). Eric Gordy, author of The Culture of Power in Serbia, relates a reader letter to a pro-regime newspaper condemning an independent newspaper of being “credited and financed by the biggest Western scam” and of “direct[ing] all of its attacks on everything which is Serbian” (80). Of course, government suppression of the press is not necessarily equivalent to suppression of the freedom to express controversial or inflammatory ideas; it is also likely not everyone in Serbia held such radically pro-regime views. But a government that restricts politically harmful ideas in the press while allowing politically favorable opinions is just as unlikely to allow the expression of unpopular ideas through other channels. At the peak of Serbia’s troubling history of ethnic cleansing and civil war free expression was nowhere to be found. This peak of Serbia’s troubling history was only a few years before the dawn of democratic reforms and “Europeanization.”
In this brief survey of the past few centuries of Serbian history, I have emphasized that understanding Serbia’s current problems with the freedom of expression needs to be understood in the context of its history. To put it succinctly, there has never existed a longstanding culture of democracy or of freedom of expression in Serbia. Over the course of the twentieth century especially, the democratic systems and freedoms of Serbia have disintegrated, culminating in the despotic policies of the Milošević regime in the 1990s. These policies, odious to the framework of democracy, have prompted three Serbian scholars to issue a biting criticism of the Serbian government. In the conclusion of Serbia Now, published in 1996, they assert, “All the Balkan nations have political systems founded on more or less the same principles: . . . [including] a political system based on democratic processes and a respect for human rights. Only Serbia stands apart from this single direction” (Nikolic, Perovic, and Protic 48). Written at the peak of the conflict in Serbia, the conclusion urges reforms and laments the lack of a “fundamental change” (Nikolic, Perovic, and Protic 48) in Serbia’s government. A constitutional provision guaranteeing freedom of expression, however noble a step toward democracy, can hardly effect this “fundamental change.” The law scratches only the surface of Serbia’s deep-seated undemocratic tradition, and it cannot alone mend the antipathy toward free expression endemic in Serbian history.
The question, then, is how Serbia must go about ensuring a fundamental change in how the law works in practice. Specifically, how must it address its tradition of suppressing free expression, and how must it mend its tradition of undemocratic principles to achieve a more democratic and free state? The answers to these questions abound, but here I consider the course that the new Serbian government has taken since its formation in the wake of the 2006 breakup of Serbia and Montenegro. The new constitution drafted by this government hopes to breathe democratic and liberal ideals into Serbia, and Article 43 specifically guarantees the freedom of expression. But the theory of legal positivism that underpins and legitimizes Article 43 does not quite actualize that “fundamental change.” In short, in the absence of a tradition of democratic government and freedom of expression, Article 43 cannot be internalized culturally without an additional undertaking by the Serbian government to proactively foster change. This shortcoming, as we will see, is woefully evident in the government’s reaction to the Belgrade Pride parade.
Before getting to the Belgrade Pride parade, let’s first take a closer look at what we mean by “legal positivism.” It is, at heart, a nebulous concept, but for the purposes of this essay, I define “legal positivism” using the simplified definition provided by John Gardner in his essay, “Legal Positivism: 5½ Myths.” In his essay, Gardner makes a distinction between “hard” legal positivism and “soft” legal positivism, with the latter sometimes conditionally incorporating morals into its philosophical framework; however, since he focuses on the former, I, too, will refer to “hard” legal positivism in this essay. Gardner offers a proposition of legal positivism that “[i]n any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits” (Gardner 199). This definition means that a law, independent of the “merits” or morals that underlie it, must be considered legally valid so long as the “source” of the law is some “relevant agent or agents” with the legal power to create, invoke, and enforce the law (200). That is, legal positivism concerns the source of the law, and the source only, when considering the validity of a law. It is independent of prevailing morals or cultural practices. In that sense, legal positivism means that the law does not depend on how it is actually lived out; it is, as Gardner puts it, “normatively inert” (202).
Far from “normatively inert” is Article 43 of the 2006 Serbian Constitution. Article 43, as noted before, declares that “[f]reedom of thought, conscience, beliefs, and religion shall be guaranteed, as well as the right to stand by one’s beliefs or change them by choice” [emphasis added]. In a country with such an undemocratic past as Serbia’s, can the state so easily legislate these core values? At stake here is whether, in the absence of tradition, Serbia can simply implement freedom of expression as a cultural value. According to the working theory of legal positivism, it can. Legal positivism underpins the theory of Article 43, questioning only the authority of the Serbian government to enact a valid law and neglecting whether the underlying cultural and moral “merits” legitimize that law. Article 43 rests solely on a claim of legitimacy by the government, ignoring the Serbian cultural framework and shunning any government responsibility to enforce the provision. That is, Serbia’s constitution takes the mere existence and validity of Article 43 as sufficient, while not providing any true obligations (or opportunity) to enforce the guarantee. Legal positivism essentially ignores Serbia’s long history against such freedoms, and it has troubling implications for Serbia’s future.
In other words, at no time in its modern history has Serbia enjoyed the “freedom of thought” or of “conscience” and “beliefs.” In each of the periods of Serbian history in the past five centuries, no period has granted extensive freedoms to the Serbians: not the Ottoman period, not the monarchic period, not the SFRY period, and not (at last) the Milošević period. At all times in its modern history, the tradition and culture of Serbia have contradicted the principles that the 2006 Constitution now seeks to impose on Serbia with Article 43. To put it bluntly: Article 43 expects to conjure something out of nothing, flooding water into a fallow field of tradition and expecting to cultivate a bountiful crop of civil freedom. However apparently well-meaning Article 43 is, its execution fails. Without an active effort by the government to enforce and support its guarantee of the free expression, through the courts or through tolerance of public events like Belgrade Pride, Article 43 exists only as a constitutional formality. It relies not on the hundreds of years of culture and tradition within Serbia but instead on state authority to implant, but not foster, the doctrine of free thought and expression where it did not exist before. In this way, Serbia draws on tradition in only one way: its worrying history of State disconnect with the People.
So how has the theory of legal positivism actually failed at allowing (and much less embracing) real freedoms of expression in Serbia? In the years following the enactment of the 2006 Constitution, there have been real consequences. In some instances, the gap between theory and reality has been so apparent as to completely contradict the wording of Article 43. In the past two years, for example, the Serbian government has not allowed “Belgrade Pride,” an annual gay pride march in the country’s capital. The government’s reasoning for the ban is, ostensibly, a security concern: during the 2010 parade, anti-gay rioters threw Molotov cocktails and fought with police officers, resulting in over 100 injuries (Vec and Stojanovic). The government’s motive in banning the parade, however, is suspect. First, Article 43 would require the government to actively protect the freedoms it espouses, and that would mean ensuring the security of such a parade rather than shielding the government from the responsibility of providing security. Second, the Serbian Orthodox Church acts as a barrier against this form of free expression that the government ostensibly supports, and its vociferous opinion may have influenced government against protecting the rights of the Belgrade Pride marchers. The Orthodox Church has condemned Pride as a “parade of shame” on religious grounds, saying the parade would cast a “moral shadow” on Serbia (Stojanovic).
Whatever the motive for banning the gay pride parade, the Serbian government acts outside of its Constitution and fails to meet the lofty goals established by Article 43. If the government merely uses security concerns as a scapegoat for agreement with the Orthodox Church, then it has failed to provide not only the freedom of expression present in Article 43 but also its guarantee of “the right to stand by one’s beliefs.” This is a plainly visible, egregious violation of the Constitution. But even if the Serbian government acts out of security concerns, it does its Constitution injustice. By prohibiting Belgrade Pride in the name of “security,” the government protects the hate and violence of the anti-gay rioters at the expense of the freedom of expression of the gay pride paraders.
To see how Serbia can protect the freedom of expression and freedom of belief for both Belgrade Pride and the Church, we can briefly consider a similar case in the United States. In Terminiello v. Chicago (1949), the Supreme Court protected the right of Arthur Terminiello to use derogatory language in a rally even though it ended up provoking a large riot outside. Writing for the majority, Justice William O. Douglas asserted, “That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above the public inconvenience, annoyance, or unrest” (Terminiello, 4). Terminiello involved a local government unwilling to enforce a constitutional provision, and a court of higher authority taking a proactive step, even in the face of controversy, to enforce it. The case of Terminiello essentially demonstrates that the freedom of expression cannot be actualized without an enforcement mechanism, and it demonstrates a set of parallel issues for Serbia’s response to Belgrade Pride. What the Serbian government missed here was the freedom of expression, not the freedom of violent expression. Nowhere in the Serbian Constitution does it guarantee the right to violent expression, yet the Serbian government bolstered rioters while essentially prohibiting the nonviolent expression of the Pride parade. Certainly, this was never the intent of Article 43.
One may naturally question the purpose of Article 43. If it does not achieve the kind of freedom it describes, how else will Serbia eventually reach it? And even if it cannot yet actualize the ideals inherent in Article 43, does this invalidate the article’s presence altogether in Serbia’s constitution? Another way to frame this question is to ask whether a law ought to be in the constitution if it cannot be enforced, or whether the constitution is the ideal to which a nation aspires. Either way, we may be more forgiving of Serbia’s struggles with Article 43. But at issue here is not that Serbia has written free expression into its constitution. The issue is altogether something else: it is Serbia’s flawed approach to free expression, which allows it to merely legislate certain freedoms without providing some form of an enforcement mechanism. It is an approach that makes it almost too easy to see Article 43 at best as uneven enforcement and at worst as mere lip service. The Serbian government, in the absence of any culture or tradition of freedom of expression, mandated such freedoms in a single sentence in its constitution.
But without a firm backing in the form of governmental support, such a decree cannot stand, and it will crash to the ground as it has in the government’s Belgrade Pride blunders. The European Commission, a human rights advocate, has called for Serbia to better enforce its constitutional guarantee of the freedom of expression (Holzhacker 16). Likewise, the Council of Europe’s Commissioner for Human Rights has expressed concern that the Serbian government has not taken steps to enforce or legitimate court decisions (Hammarberg). The Serbian government’s lack of accountability has led it essentially to abandon Article 43, leaving its promise of the freedom of expression without any governmental support or enforcement. In short, enforcement is necessary to give the law weight beyond positivism and to allow it to effect real change in Serbian culture. The absence of Serbian government support has failed to fill the “moral” or “merits” void in Article 43, leaving only the “source” found in legal positivism. The resulting empty shell can no more usher in freedom of expression than a despotic government’s decree of democracy could result in a democratic state. The Serbian experience is a sobering lesson that no government can spurn enforcement of its laws even if legal theory considers those laws “valid.” That is, the government must work to foster an enforcement framework that can hold the law together. Only then can the government effectively translate its laws into policy. Only then can governments like Serbia prevent a shameful disregard of their own laws.
A constitution, by any measure, is a set of laws that guides the government, that tells it where it may and may not tread, and that instructs it on the minimum it must guarantee for its citizens. A constitution is an ambitious and positive goal for any new democracy to flesh out and establish the basic rules for the nation. But the point here is that a constitution cannot exist wholly independently of the life of the citizens it is meant to protect. A constitution must be the arm of the government, and not simply some fleeting set of promises. The Serbian government, in drafting Article 43 as part of the 2006 Constitution, neglected the necessity of enforcement. It left Article 43 to an almost Spartan existence, trusting it to survive on its own amid the hostile forces of an opposing culture and tradition. What’s more, Serbia’s failure to enforce Article 43 reflects a worrying trend: the legislation of democratic principles for democracy’s sake. True, Serbia’s inclusion of Article 43 represents a noble step forward in “aspirational constitutionalism” (Scheppele 299), the process in which a country uses its constitution to articulate a set of goals or ambitions that the country hopes to achieve. But setting these aspirations out in the text of the constitution is only the first step. If the Serbian government truly does hope to guarantee freedom of expression, it must act vigilantly to protect the right of its people to express themselves, whoever they may be. And as democratic nations hope to spread democracy elsewhere, they must keep in mind that “aspirational constitutionalism” is aspirational, not a self-fulfilling prophecy. The case of Serbia serves as a reminder that establishing democracy must always be a process fostered and welcomed at the most local levels, with the consent and willing support of the people.
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