Antistate affect: Practical politics and the constitutional law of Bosnia and Herzegovina

In: Arhiv za pravne i drustvene nauke, Band 118, Heft 3, S. 11-38

Abstract

The central topic of the paper is the problem of political falsification of the Constitutional law of Bosnia and Herzegovina and the role of judicial science in demythologising the constitutionally undefined opinions of practical politics. The author points out the link between normative predictions of the future and the analysis of the contemporary, in other words, the interconnectedness of social realities in which a norm is created with projections of the future. In this relationship, the Constitution of Bosnia and Herzegovina appears as a plan for a future in which those who conceived it projected principles of a constitutional state. This plan is established in the preamble as a request that the naturalistic principles of war should be transformed into modern forms of interconnected human life, by way of forming a state into an institutional protector of freedom, equality, human dignity, welfare and prosperity. Political parties are those who are to bring this program to fruition. However, since the creation of the Constitution of Bosnia and Herzegovina, they are in a constant antistate affect which blocks collective affectations. Practical politics is carried out as "politics in the name of the people" and it prevents sympathy and affection towards "the other". On this premise, political parties rule the state and entity institutions. The state is thus separated from the constitutional plan for the future, from the "program" that the constitutional founders, through the self-reflections found in the Preable, set as the legal program for the "use" of state power. The process is illustrated through an analysis of five mythologems which were articulated in the 2022. electoral campaign as the postulates of political parties and the official positions of neighboring states: (1) constitutive peoples are represented in the Presidency of Bosnia and Herzegovina, (2) the High Representative for Bosnia and Herzegovina is legally bound to carry out legal interventions, (3) the concept of a civic state is not applicable in Bosnia and Herzegovina because of a constitutionally programmed "rule of the people", (4) the entities are states and (5) Republika Srpska is a genocidal creation which thus must be deinstitutionalized. The author proves that these are politically generated mythologizations of parts of the Constitutional law of Bosnia and Herzegovina, which rest on falsifying the written constitution. Practical politics thus stands outside of the Constitutional law of Bosnia and Herzegovina and is in part carried out as arbitrary political mayhem which prevents general progress. This process is ongoing and it cannot be prevented through a political practice which directly relies on falsifying falsifying tenets. Precisely because of this, judicial science and constitutional legal scholarship need to react to the advanced state of mythologizing extraconstitutional constructs. Insisting on the application of written law and determining public law standards which are binding is one of the key tasks of judicial science. Its task is to establish criteria and to demand corrections in the political practice within Bosnia and Herzegovina.