Radbruch’s Formula in the Constitution of Bosnia and Herzegovina – Untapped Potential for Strengthening the Rule of Law

Abstract

The philosophy of Gustav Radbruch made an immeasurable contribution to the development of the concept of the rule of law. The part of Radbruch’s philosophy that still has a great influence on thought about the relationship between justice and mere legality is certainly his Formula, which can be reduced to the venerable stance of lex injusta non est lex.[1] Simply put, according to Radbruch’s Formula, any law that is ‘unjust to an intolerable degree is not legally valid and should not be applied by courts. In this text, the author finds a similarity between Radbruch’s Formula and provision VI/3(c) of the Constitution of Bosnia and Herzegovina (B&H) and analyzes the content of the aforementioned provision, which regulates the possibility of initiating a concrete review of the constitutionality of laws by ordinary courts. The text analyzes what the aforementioned provision of the B&H Constitution stipulates and what opportunities it offers to ordinary courts when applying the law. It also analyzes the extent to which the potential of the B&H Constitution has been used by ordinary courts in the legal system of B&H.