Abstract
Establishing the rule of law in transitional countries is still challenging for scholars to explain whether there is a certain pattern for attaining this aim. This research question mainly affects the constitutional courts’ jurisprudence. This research project, therefore, employs Radbruch’s philosophy as a theoretical framework in the investigation of the previous question. So far, Radbruch’s philosophy has been mostly used in the examination of criminal aspects of transitional justice, such as Radbruch's Formula. However, this thesis argues that the tension between political stability (legal certainty) and human rights commitments (justice) that can be found in Radbruch’s philosophy offers the prospect for the identification of constitutional courts’ patterns in establishing the rule of law in transitional countries. Radbruch’s tension challenges constitutional courts in a transitional period, and the way of resolving this tension determines the transitional process. In this context, favouring or prevailing human rights commitments in constitutional jurisprudence leads to the establishing of the rule of law (the consolidated democracy), and vice versa, prevailing political stability in constitutional jurisprudence leads to stabilitocracy (limited establishment of the rule of law). From an empirical perspective, this thesis identifies constitutional courts’ patterns in resolving Radbruch’s dilemma based on the jurisprudence of the German, Italian, South African, Colombian, and Hungarian Constitutional Courts. Regarding the constitutional court’s jurisprudence in transitional countries, this thesis argues that three indicators determine the constitutional court’s decisions in resolving Radbruch’s dilemma: the position of a constitution in a constitutional order; the content of a constitution, and constitutional culture. However, with a primary focus on Bosnian constitutional jurisprudence, this thesis investigates how the constitutional courts in Bosnia and Herzegovina dealt with two main transitional issues in Bosnia and Herzegovina: the transitional Constitution and the war past. In resolving Radbruch’s dilemma, this thesis argues that constitutional courts in Bosnia and Herzegovina mainly favoured political stability over human rights commitments, which disabled the democratic consolidation of the country.
About the speaker
Benjamin Nurkic is a PhD candidate at the Faculty of Law at the University of Tuzla and a member of the Constitutional Committee of the House of Representatives of the Parliament of the Federation of Bosnia and Herzegovina. Currently, he is a visiting PhD student at the European University Institute. He is also a fellow of the I·CONnect Blog of the International Journal of Constitutional Law. The main focus of his research is the protection of human rights and establishing the rule of law in post-conflict societies.