The constitutional court of Serbia between principle and arbitrariness: Are some laws more equal than others?

Primarily within the sphere of constitutional law, legal principles evolve as qualitatively distinct norms compared to legal rules. The Constitutional Court has occasionally exhibited a degree of judicial activism by defining specific constitutional principles. One of the most developed principles in the Court's jurisprudence is the principle of the unity of the legal order, which serves as the foundation for a special category of laws known as 'systemic laws'. Given that they contain legal norms regulating a particular field in its entirety, the distinctiveness of this category lies in the fact that, within their respective regulatory scope, systemic laws possess greater legal force than all other laws, including other systemic laws. Consequently, this specific legal force does not derive from their form - as they are enacted through the same legislative procedure as other statutes - but rather from their content, reflecting the comprehensive nature of the regulation they provide. A direct consequence of the principle of the unity of the legal order is the Constitutional Court's practice of declaring specific statutory provisions unconstitutional due to their non-compliance with other laws, specifically those of a systemic character. This paper aims to highlight the Constitutional Court's creative approach in developing the principle of the unity of the legal order, while also pointing out its inconsistent application in practice. The Court has failed to establish clear and precise criteria for distinguishing systemic laws, which leaves room for judicial arbitrariness and creates legal uncertainty.