This blog is part of SLSA blog series ‘Empirical Approaches to the Rule of Law’, which takes a socio-legal and citizen-focussed approach to the rule of law, exploring its social foundations, innovative methods, and perspectives from Hungary, Poland, Germany, the Netherlands and Serbia. The series is guest edited by Dr Erin Jackson, postdoctoral researcher at the University of Groningen on the comparative research project CITIZENS-LAW, which aims to strengthen the rule of law in the EU through mixed method research on societal conceptions of law.

Danilo Vuković, Professor of Sociology of Law, Faculty of Law, University of Belgrade

Over half a century ago, Philippe Selznick emphasized that the rule of law ought to be a central theme of the sociology of law (Selznik, 1968). Understanding the rule of law from a sociological perspective means moving beyond discussions of norms, ideas, concepts, and their historical genealogy. Instead, it requires venturing into the realm of social action, interests, and values to comprehend the societal dynamics that underlie the rule of law. Following these ideas, the empirical sociology of law can contribute to our understanding of the emergence and decline of the rule of law in the case of Serbia.

Diagnosing the rule of law

Contemporary Serbia has been characterized as a hybrid democracy or competitive authoritarianism (Vladisavljevic, 2019) with a deeply flawed rule of law (Vuković, 2022). Typically, this is explained by referring to weak institutions (Kmezić, 2017), lack of political will to reach European standards (Dallara, 2014), and political instability generated by populist leadership (Bieber, 2018). However, living in Serbia is a testimony of ambivalence. On one hand, we live in a fairly ordered society; our actions are constrained by the law, while our rights, property, and personal and physical integrity are reasonably well protected (Spasojević, ed. 2021). On the other hand, powerholders fall beyond the reach of legal institutions, and can violate laws and misuse public resources with impunity. Party clientelist networks that parasitize formal institutions and capture them play a key role (Vuković and Spaić, 2022). In the Serbian context, limiting the power of the political and economic elite and confining their actions within the limits of the law emerges as the key obstacle to strengthening the rule of law.

Foundations of the rule of law and democracy

The rule of law depends upon a list of institutional, social, and cultural conditions (Tamanaha, 2004; Przeworski, 2003; Unger, 1976). The crucial institutional element of the rule of law is the independent judiciary, characterized by merit-based selection of judges, long-term appointments, barriers to judges’ removal, reasonable salaries and adequate resources (Melton and Ginsburg, 2014; Bühlmann and Kunz, 2011). In Serbia, it is essential to add the independence of the public prosecution service, as it, alongside the courts, ensures the legal accountability of the executive branch.

Apart from these institutions, there has to be an appropriate legal or political culture, a widespread conviction among citizens and government officials that the law governs and should govern (Tamanaha, 2004; Gowder, 2016). The key precondition of the rule of law is the willingness of people to act cohesively and constrain the power of politicians. How this coordination occurs depends on the specific social and historical conditions (Gowder, 2016: 155-156).

Analyzed from a historical and structural perspective, the rule of law emerged as the balance of power among the aristocracy, the third estate, and the royal power (Unger, 1976: 75). Huber, Rueschemeyer, and Stephens (1993) offer a similar argument for the emergence of democracy as a matter of power balance and power sharing in terms of: (1) the balance of class power; (2) the nature of the state and state-society relations, or balance of power between state and civil society; and (3) transnational structures of power. For a society to become democratic, there must be a balance of power in which the dominant groups’ economic and cultural power is counterbalanced in civil society by the organizational power of subordinate classes. Meanwhile, the state needs to be strong and autonomous enough to avoid being the captive of the interests of dominant groups.

This analytical framework encompassing the equilibrium of power among social groups and the dynamic relationship between the state and society is useful to analyze the underlying causes of flawed rule of law in Serbia in terms of judicial independence, depoliticized activism and societal capture.

A judiciary captured and weakened: judicial independence in Serbia

From 2008 to 2012 the Serbian judiciary witnessed an unsuccessful judicial reform, resulting in the dismissal of hundreds of judges and prosecutors who were later reinstated. Despite being unsuccessful, the reform was effective in one respect: it instilled fear and a sense of vulnerability among judicial professionals (Dabetić, 2020) and produced a climate of generalized pressure on the judiciary.

Today, direct political control is exercised through judicial appointments. The executive branch controls the High Judicial Council, which is responsible for appointments, while court presidents play a crucial role in overseeing the judiciary. Pressures from court presidents, politicians, and the media are a daily experience for approximately half of the judges and prosecutors (Vuković & Mrakovčić, 2022). This creates an environment of pervasive pressure and exposure to political criticism in which judges do not to perceive the judiciary as an independent branch of government.

In addition, the ruling party carries out a campaign of delegitimization of the judiciary. Politicians criticize judicial decisions that do not favor them and claim that the judiciary serves foreign powers or domestic tycoons. Citizens and judicial professionals lack trust in the judiciary leading to an internal and external crisis of legitimacy (only 25% of citizens and 43% of lawyers have confidence in courts; Mrakovčić & Vuković, 2019). Consequently, the judiciary is attractive only to low-achieving students (Đorđević, 2022) leading to a crisis of reproduction of the profession. This has drained the oversight capacities of the judiciary and made space for parallel clientelist structures that undermine the rule of law.

Civic protests: weak urban middle classes and depoliticized activism

Decades of authoritarian rule in Serbia did not entirely suppress civic activism. During the 1990s, traditional activism was vibrant, while in recent years, a new form has emerged – a poorly networked and individualized (atomized) civic activism. At its core is a relatively narrow social base of civic activism consisting mainly of the urban middle classes, which make up about a third of the population. These classes hold post-materialist values, are skeptical of politics and distrustful of the actors and institutions of the political system (Petrović, 2019; Pešić, 2017). Such were the 2016-2019 and 2022 waves of demonstrations against the government and its violations of democracy and the rule of law.

While these groups support democracy and the rule of law, their social status is closely tied to the state and its redistributive programs. Since other social groups exhibit limited interest in efforts to strengthen the rule of law (Vuković & Cvejić, 2018), the middle classes are limited in their ability to constrain the power of the elite.

NGOs that focus on government accountability, influenced by global development actors, have also depoliticized their approach: they distance themselves from traditional political struggles and instead frame their actions in technocratic terms, adhering to legal frameworks, public policies, and administrative procedures. While they have been successful in highlighting legal violations and misuse of public resources by the elite, they have not managed to establish formal mechanisms for accountability or create broader coalitions for change (Vuković & Babović, 2018; Vuković, 2018).

State dominance and societal capture

Historically, the state has maintained dominance over society, starting from the early 19th-century national liberation movements (Čalić, 2004; Đurović, 1986) and continuing through periods of socialism and current political capitalism (Bartlett, 2021; Antonić, 2006; Arandarenko, 2010). At the beginning of transition, the socialist elite successfully converted political into economic power through privatization, privileged market positions, cheap state loans, and criminal activities. In the 1990s, about two-thirds of the economic elite originated from the socialist nomenklatura, and by 2003, this number had decreased to half. It was not until 2012 that the composition of the elite changed significantly, with most members having risen to prominent social positions (Lazić, 2014: 83–85).

The state plays a direct role in the economy by employing nearly 40% of the workforce. The labor market is dual, with well-paying and stable jobs available in the public sector and large private companies, in contrast to the often unstable work in smaller private firms (Arandarenko, 2018: 23). As a result, public sector jobs are particularly sought after. These positions are usually allocated through party clientelist networks (Vuković & Stefanović, 2024), which further reinforces the influence of the state and the political elite.

Finally, the state and political elite allocate approximately 3.3% of GDP each year through discretionary spending, opaque public procurement processes, and direct economic aid. These funds are distributed via clientelist networks, which boosts the state’s influence (Cvejić, ed. 2016; Pešić & Milošević, 2021). Surveys reveal that while business owners and managers support the principles of the rule of law, they are critical of its implementation. They feel powerless against the corrupt state and ineffective judiciary. They do not view the legal system as a viable means to challenge government decisions (Vuković, 2022).

Conclusion

The Serbian elite and the state have effectively maintained an imbalance of power between the state and society, which has contributed to the slow progress in strengthening the rule of law. They achieved this by controlling public resources and institutions, hindering capitalist development, and discouraging civic activism. The state restricts channels for state-society interaction—such as opposition parties, independent media, trade unions, and local grassroots organizations—and installs instead clientelist networks. Political parties exert control over the judiciary, resulting in a professional culture marked by distrust in institutions and a lack of professional activism.

Empirical sociological research into civic values and activism (including legal culture), elite reproduction, clientelism, and the legal profession are building blocks in a puzzle that aims to explain theoretically and empirically what is often casually diagnosed as a “transitional barrier” — a lack of political will and institutions to install democracy and the rule of law. Empirical sociology of law refers instead to the structural societal foundations of the rule of law.

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