On Laws and Their Spirit

Abstract

The Orthodox Christianity had in some respects divergent development from that of the West, which also resulted in several conceptions that might have had an impact on the contemporary legal situations in the predominantly Orthodox countries. In this contribution we aim at examining the impact of two major points of divergence. One is the cooperative Church–state separation, that is sometimes dubbed as the symphonia of the two. Another set of concepts that arguably marked Orthodox church’s understanding of the rule of law, at least in its internal procedures, is the principle of leniency (oikonomia). It allows for an interpretation of the laws in the interest of the person to which those are to be applied. We want to investigate which pieces of legislation might have been affected by these considerations and whether contemporary challenges of the legal system in Serbia can be traced to some of the Orthodox doctrines. We conclude that while the contemporary Church–state relationship, as envisioned in the corresponding law of the country, demonstrates many traits that can be traced to the symphonia tradition, there is hardly any evidence that would support the claim that the decision-making processes in Serbian courts were marked by conscious application of the principle of oikonomia.