I am pointing out the facts related to the results of the application of law as well as the consequences of legal certainty, that is, insecurity. Namely, let’s start from the fact that the application of law in a community tends to create a utopia, which, although unattainable, enables the creation of a direction in which the community should move in order to, among other things, create security in society. The factual situation thus set makes it clear that society should strive for the highest possible degree of compliance with the rules prescribed by state authorities and institutions, for reasons of both subjective feeling and objective representation of legal security in society.
As I have pointed out many times, respect for moral principles, as well as securing and preserving the public interest, are the main postulates of legal security and the “guiding star” of the application of law, and they aim to bring society closer to complete harmony.
A dilemma arises here, if internal law should provide the highest degree of security, why international standards enable the primacy of international law in relation to the internal law of states. Does such a way enable the creation of a complete society, or are differences not respected, which evidently exist especially in the field of practicing continental law as one of the two largest legal systems? The author is of the opinion that there must be a hierarchical scale that has the effect of completely harmonizing different social interests, and that there must be a crossing with connections from the past that are not in the interest of the international, or better to call it, general interest, which must certainly have decisive character. All this, bearing in mind that the state in that case must have the role of an individual in the international community, and the public interest is reflected in the observance of rules and the application of rights in relation to all individuals.
We will now turn to the consequences of legal certainty. The philosophical question is whether it is possible to provide legal security in society, which can only be guaranteed through the creation of the subjective feeling of the individual and then through the greatest possible degree of application of the norms that created that feeling, as well as the limitation of non-compliance with them through the best possible system of managing the state apparatus ? Certainly, a perfect or ideal society does not exist, precisely because of the diversity of both individuals and cultures, whose diversity is reflected at every step, especially in the example of the Western Balkans. However, what can certainly exist is a subjective feeling, as the lower premise, which coincides with the objective way of functioning of the community in a way that will exclusively look at the interest of the community, as the upper premise. By harmonizing the lower and upper premises, we get an answer to the question why international law must have primacy over the internal law of states, and this is precisely and simply for the sake of creating a sense of legal security for individuals.
PROBLEMS OF LAW APPLICATION
The problems that arise in the field of law enforcement are multiple. Namely, first of all, the wrong application of material law appears as a problem in situations when the competent authority makes a decision that directly affects the rights, obligations and responsibilities of natural or legal persons. In that situation, when the evidence is wrongly assessed, or simply by the wrong approach when interpreting the norms, the problem arises that persons are denied the enjoyment of those rights that are legitimately theirs, based on legal acts. First of all, it refers to the decisions of the courts, which often, due to a misinterpretation of legal norms, make decisions that are contrary to the purpose of those same norms. The system solved this problem by establishing a hierarchical scale in the judicial organizational system, and in that way largely suppressed the mentioned problem.
The problems that arise in the field of law enforcement are multiple. Namely, first of all, the wrong application of material law appears as a problem in situations when the competent authority makes a decision that directly affects the rights, obligations and responsibilities of natural or legal persons. In that situation, when the evidence is wrongly assessed, or simply by the wrong approach when interpreting the norms, the problem arises that persons are denied the enjoyment of those rights that are legitimately theirs, based on legal acts. First of all, it refers to the decisions of the courts, which often, due to a misinterpretation of legal norms, make decisions that are contrary to the purpose of those same norms. The system solved this problem by establishing a hierarchical scale in the judicial organizational system, and in that way largely suppressed the mentioned problem.
One of the not so common, although also the most plastic problems, is the misunderstanding of the enacted law. An example of such a problem can be found in the Law on Public Procurement in Montenegro, adopted at the beginning of the last decade, where there was a situation where the provisions of the law were in conflict with each other, and then with other laws, which all caused major problems from for the reason that the law is simply not aligned with the system of legal norms in the country. This problem can only be avoided by more detailed preparation and professional drafting, in accordance with the needs of the area for which certain acts are adopted.
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