© Nova univerza, 2018
DIGNIT AS
Revija za človekove pravice
Slovenian journal of human rights
ISSN 1408-9653
Antinomy between the General Principles of Law (The “City Cemetery” Case)
Luka Burazin
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To cite this document:
Burazin,L. (2018). Antinomy between the General Principles of Law (The “City 
Cemetery” Case), Dignitas, št. 45/46, str. 275-290.
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275
DIGNITAS n Antinomy between the General Principles of Law
1∗
The so-called City Cemetery case derives from contemporary 
Croatian judicial practice and passed though all three decision-
making levels (Municipal Court, County Court, Supreme Court).
2
 
It is of special interest for this presentation as it provides the basis 
for an analysis of several important issues from the fields of the 
general theory of law and legal argumentation –issues of gaps in 
the law, of the application of the general principles of law in the 
decision-making process and of antinomies in law. Another point 
of interest concerns the different decisions taken by the courts 
involved: the Municipal Court and the County Court ruled in favo-
ur of the claimant, while the Supreme Court amended their jud-
gments and ruled in favour of the defendant. Also worth noting 
are the differences in opinion among first-year law students with 
whom I analyse this case in their seminar in order to find out how 
they, who still lack specific legal knowledge, would have solved 
the case according to their sense of justness. After I present them 
with only the facts of the case and answer their questions, they 
side with one or the other party. In most cases, the ratio is 60% 
versus 40% in favour of the defendant and against the claimants.
1. FACTS OF THE CITY CEMETERY CASE
In the case in question the dispute concerned the right to use 
two graves at a public cemetery in Zagreb. The claimants reque-
1*
 Paper presented at the International Conference “Legal Argumentation and the Challenges of 
Modern Europe”, European Faculty of Law in Nova Gorica, Slovenia, 15-16 October 2009. Translated 
into English by Ana Burazin.
2 
Zagreb Municipal Court Judgment, P-1459/03 of 16 September 2003 (unpublished), Zagreb County 
Court Judgment, Gž-1323/04-2 of 10 October 2006 (unpublished) and Judgment of the Supreme 
Court of the Republic of Croatia, Rev 362/07-2 of 7 January 2009, published at http://sudskapraksa.
vsrh.hr/supra
Antinomy between  
the General Principles of Law 
(The “City Cemetery” Case)
1*
as. mag. Luka Burazin

276
DIGNITAS n Legal Argumentation and the Challenges of Modern Europe
sted that the court find that they, and not the defendant, were the 
exclusive holders of the disputed right to use the graves and called 
on the court to order the defendant to complete the claimants’ 
registration as such in the relevant grave register.
The undisputed facts of the case are as follows:
The late Ms. V. N. (in 2000) was the holder of the right to use 
three graves and was registered as such in the relevant grave regi-
ster. Two years prior to her death (in 1998), she concluded with 
the claimants a contract to assign the disputed right to use the two 
graves (hereinafter: the disputed right of use), whilst retaining the 
right to use the third grave for herself. The claimants did not regi-
ster the disputed right of use in the grave register which they had 
acquired under the said contract. In the inheritance proceedings 
instituted following her death, her son R. N. was named the sole 
heir in the final decision on inheritance of April 2002. Further, 
on the basis of a submitted excerpt from the grave register which 
showed the late V. N. was still registered as the holder of the right 
of use of all three graves, it was decided that the disputed right of 
use was included in the decedent’s estate. As the heir, R. N. was 
registered in the relevant grave register as the new holder of the 
right of use for all three graves. In August 2002, R. N. concluded 
a contract of assignment of the disputed right of use with the de-
fendant after having presented the latter with the final decision 
on inheritance and an excerpt from the grave register proving he 
was the holder of the disputed right of use. Thereafter, the defen-
dant was also registered in the grave register as the new holder of 
the disputed right of use. Neither party disputes the fact that the 
defendant acted in good faith when she concluded the contract 
with R. N.
 Thus, the only point in the dispute is whether, given the 
above described developments, it is the claimants who remain the 
holders of the right of use for two graves or whether this right was 
acquired by the defendant?
2. IN SEARCH OF APPLICABLE LAW
2.1.  Reasoning by the Municipal Court and the County 
Court
When searching for applicable law to solve the dispute, the 

277
DIGNITAS n Antinomy between the General Principles of Law
first-instance court established in its decision, which was also 
confirmed by the second-instance court, that the “only relevant 
regulation” with respect to the preconditions for acquiring the ri-
ght of use to a grave, which is to be applied to the present case, 
is the Graves Act.
3
 As regards the issue in dispute, the Graves Act 
states only the following: “The user may transfer on the basis of 
an assignment contract the right of use of a grave to a third party. 
The contract of assignment of this right of use shall be submitted 
to the Cemetery Administration for the purpose of registering the 
new user in the Grave Register.”
4
 The court was therefore of the 
opinion that the only precondition for acquiring the right of use 
of a grave is the conclusion of an assignment contract since, ac-
cording to the court, registration in the Grave Register is exclusi-
vely declaratory in nature.
5
The court also addressed the defendant’s position in view of 
the undisputed fact that in the matter in hand she had acted in 
good faith. In respect of the defendant’s reference to such protec-
tion as is provided, for instance, by the law of property through 
the institution of the acquisition of a real right on the basis of trust 
in a public register (land register), the first instance court held that 
“in legal transactions which concern the rights of use of graves, 
such protection is excluded for the simple reason that the Graves 
Act does not contain provisions providing for such protection”.
6
 
Moreover, the court explicitly dismissed the possibility of an (ana-
logous) application of the Act on Ownership and Other Real Ri-
ghts and the Act on Land Register on the grounds that “the scope 
of application of these acts is limited to real rights” and that “the 
right of use of a grave is definitely not such a right”.
7
 Furthermore, 
in respect of the defendant’s reference to her trust in the truthful-
ness of the final decision on inheritance as a public document, 
the court excluded the possibility for the application of the rule 
on the protection of good faith acquisition against pseudo-heirs 
by stating that “what is at issue in the present case is not a pseu-
do-heir in terms of an incorrect determination of his right of in-
heritance but an incorrect declaration of the items of the estate”.
8
 
3 
Zagreb Municipal Court Judgment, P-1459/03 of 16 September 2003.
4 
Art. 15(4) of the Graves Act (Official Gazette 19/98).
5 
Zagreb Municipal Court Judgment, P-1459/03 of 16 September 2003.
6 
Ibid.
7 
Ibid.
8 
Ibid.

278
DIGNITAS n Legal Argumentation and the Challenges of Modern Europe
“The consequence of trust in the final decision on inheritance”, 
concluded the court, “is limited to the ascription of the right of 
inheritance to a person wrongly determined as the heir so that a 
bona fide third party acquires rights from an inheritance as if he 
has acquired them from the actual heir, but does not extend to 
the substitution of the rights that the decedent himself does not 
have”.
9
On the basis of the determination that the Croatian legal system 
does not contain a legal norm providing for the protection of a 
bona fide acquirer of the right of use of a grave, the first-instance 
court decided that the claimants were to remain the exclusive hol-
ders of the disputed right of use.
2.2.  Reasoning of the Supreme Court of the Republic  
of Croatia
In deciding on the basis of the appeal lodged by the defendant, 
the Supreme Court adopted a different stance. First, in contrast to 
the view taken by the two lower instance courts, it follows from 
the reasoning of the Supreme Court judgment that the Graves Act 
does not regulate the issues in dispute in their entirety.
10
 Second, 
in respect of the law that is to be applied to those issues which the 
Graves Act as lex specialis does not regulate, the Supreme Court 
took the view that it is necessary to apply regulations governing 
the acquisition, protection and loss of real rights, in particular the 
Act on Ownership and Other Real Rights as lex generalis.
11
 Thus, 
the Supreme Court concluded that the right of use of a grave is a 
right which is exercised on a thing (a grave), that this right is co-
vered by the scope of “rights”, i.e., entitlements constituting the 
right of ownership (right of possession, right of disposal, right of 
use) and that it should, therefore, “be equated with the right over 
real estate” to which the Act on Ownership and Other Real Rights 
applies.
12
 By applying the provisions of the Act on Ownership and 
Other Real Rights concerning the acquisition of the right of owner-
ship on the basis of a legal transaction and the protection of the 
bona fide acquirer, the Court concluded that “the claimants, on 
the basis of the contract concluded with the late V. N., would have 
9 
Ibid.
10 
See Judgment of the Supreme Court of the Republic of Croatia, Rev 362/07-2 of 7 January 2009.
11 
See ibid.
12 
See ibid.

279
DIGNITAS n Antinomy between the General Principles of Law
acquired the right of use of the graves and, thus, would have enjo-
yed overall protection as would have any other owner of a thing, 
unless such an acquisition affected the rights of third parties over 
the thing in question, and this with a view to protecting such other 
person who had acted in good faith and had placed trust in the 
public records the purpose of which is to provide access to the 
relevant data”.
13
 Hence, the Supreme Court concluded that, since 
it was the defendant herself who in good faith and placing trust in 
a public record (the Grave Register), had acquired the disputed ri-
ght of use, this right of hers “enjoyed protection also with respect 
to the claimants who, on the basis of a legal transaction, had also 
been assigned the right of use of the graves but had not registered 
their right in the public register”.
14
 In doing so, the Supreme Co-
urt referred to the following provision of Art. 125 par. 1 of the Act 
on Ownership and Other Real Rights: “When several people con-
clude legal transactions with the seller with the aim of acquiring 
ownership of one and the same piece of real property, ownership 
shall be acquired by the person who first applies in good faith for 
an entry in the land register, provided that all other conditions for 
the acquisition of ownership have also been satisfied.”
15
 Following this line of reasoning, the Supreme Court amen-
ded the judgements of the Municipal Court and County Court and 
dismissed the claimants’ request to order that it was they, and not 
the defendant, who were the exclusive holders of the disputed 
right of use.
16
3. PROPOSED DIFFERENT REASONING BASED 
ON AN ANALYSIS FROM THE STANDPOINT OF 
THE GENERAL THEORY OF LAW AND LEGAL 
ARGUMENTATION
After having outlined the Croatian courts’ lines of reasoning con-
cerning the applicable law in the City Cemetery case, on the basis 
13 
Ibid.
14 
Ibid.
15 
Act on Ownership and Other Real Rights (Official Gazette 91/96, 68/98, 137/99 – Decision of the 
Constitutional Court U-I-58/97, 22/00 – Decision of the Constitutional Court U-I-1094/99, 73/00, 
114/01).
16 
See Judgment of the Supreme Court of the Republic of Croatia, Rev 362/07-2 of 7 January 2009.

280
DIGNITAS n Legal Argumentation and the Challenges of Modern Europe
of the general theory of law and legal argumentation I will proceed 
by analysing a different line of legal reasoning which could be then 
applied in order to solve the issue in dispute. I will start by claiming 
that there is a gap in the Croatian positive law system with respect 
to the legal norm regulating the issue in dispute.
3.1.  A gap in the law with respect to the issue in dispute 
and use of the argument per analogiam
In general, the term “gap in the law” refers to the situation of a 
certain social relationship which, although it should, is not actu-
ally regulated by a legal norm.
17
 In other words, a gap in the law 
represents the state of the absence of a legal norm concerning a 
social relationship which should be regulated by the law.
18
 And, 
according to Visković, social relationships which should be regu-
lated by the law are those interpersonal relationships that are im-
portant for society’s survival and well-being, that involve strong 
conflicts of interest and are externally controllable.
19
 Such gaps in 
the law, with respect to the contents of which a consensus seems 
to have been reached at the theoretical level, are also called by 
some “visible” gaps in the law.
20
The Graves Act which, as sedes materiae and lex specialis for 
legal relationships relating to the use of graves, should be given 
precedence with respect to the application of law in the analysed 
case, does not provide, as the Supreme Court correctly conclu-
ded in its decision, an overall normative regulation of the issue 
in dispute. Furthermore, neither the Ownership Act and the Land 
Registration Act (i.e., rules on the acquisition of real rights and the 
17 
For more details on gaps in the law, see R. Guastini, L’interpretazione dei documenti normativi, 
Dott. A. Giuffré Editore, Milano, 2004, pp. 223-242 and N. Bobbio, Lacune del diritto, Novissimo dige-
sto italiano, Vol. IX, Unione tipografico-editrice Torinese, Torino, 1975, pp. 419-424. On the difference 
between “gaps“ and “open texture” in the law, see C. Perelman, Problem praznina u pravu, publ. in: 
Pravo, moral i filozofija, Nolit, Beograd, 1983, pp. 130 and 131.
18 
See B. Perić, Država i pravni sustav, Informator, Zagreb, 1994, p. 224, N. Visković, Teorija države i 
prava, Birotehnika, Zagreb, 2006, pp. 234-236, 260 and 261, D. Vrban, Država i pravo, Golden marke-
ting, Zagreb, 2003, p. 461, V. Miličić, Opća teorija prava i države, self-published, Zagreb, 2003, p. 341, 
F. Bydlinski, Grundzüge der juristichen Methodenlehre, WUV, Wien, 2005, p. 59, P. Koller, Theorie 
des Rechts, Böhlau Verlag, Wien, 1997, p. 227. and M. Pavčnik, Teorija prava, GV Založba, Ljubljana, 
2007, p. 383.
19 
See N. Visković, Teorija države i prava, p. 234.
20 
E.g. Larenz and Canaris. See K. Larenz, C.-W. Canaris, Methodenlehre der Rechtswissenschaft, Sprin-
ger, Berlin [etc.], 1995, p. 198. In view of the scope of my paper, I have left out numerous views on 
other types of gaps in the law. For more details, see K. Larenz, C.-W. Canaris, Methodenlehre der 
Rechtswissenschaft, pp. 191-201, M. Pavčnik, Teorija prava, pp. 389-401 and M. Pavčnik, Why Discuss 
Gaps in the Law, Ratio Juris, Vol. 9, No. 1 (1996), pp. 74-83.

281
DIGNITAS n Antinomy between the General Principles of Law
effects of trust in land registers) nor the Civil Obligations Act (i.e., 
rights on the assignment of claims and the effects of multiple assi-
gnment) cannot without difficulty be directly applied as lex gene-
ralis in view of the disputable legal nature of the right of use of a 
grave.
21
 It follows that the Croatian law remains silent on whether 
it was the claimants who after the described developments remai-
ned the holders of the disputed right of use or whether it was the 
defendant who became the holder of that right.
As, on one hand, the existence of gaps in the law is a pheno-
menon common to every legal system
22
 and as, on the other, jud-
ges are obliged to decide on an issue in dispute (prohibition of 
declaring a non liquet, déni de justice),
23
 legal orders provide for 
certain methods for resolving the problem of gaps in the law in 
concrete cases by filling them. Of the various means for closing 
gaps in the law, available to those applying legal norms (judges 
and administration bodies),
24
 in the case of “visible” gaps analogy 
is especially important.
25
 In general, analogy (or argumentum per 
analogiam, argumentum a simili ad simile) is a general principle 
of logic on the drawing of conclusions on the basis of similarity.
26
 
As a rule, legal theory differentiates between statutory analogy 
and legal analogy.
21 
In the City Cemetery case the courts took opposing views on the legal nature of the right of use 
of a grave. The Municipal Court explicitly stated that, by its legal nature, the right of use of a grave is 
not a real right, while the Supreme Court equated the right of use of a grave with real rights. I am of 
the opinion, however, that if the right of use of a grave is not declared a sui generis right, it should, 
perhaps, rather be classified as a right in personam. The law of obligations recognises both the right 
of use (e.g., the right of use as an essential part of the lease contract) and the type of contract by 
which the right of use of a grave is transferred (assignment contract). Assuming such a position were 
taken, the Civil Obligations Act as lex generalis, i.e., its provisions on the assignment of a claim and 
on multiple assignments, would apply to multiple alienations of the right of use of a grave. 
22 
On the different views on the existence or inexistence of gaps in the law, see F. Atria, On Law and 
Legal Reasoning, Hart Publishing, Oxford and Portland, Oregon, 2002, pp. 76-86.
23 
See C. Perelman, Problem praznina u pravu, publ. in: Pravo, moral i filozofija, p. 129 and L. Recaséns 
Siches, Human Life, Society and Law: Fundamentals of the Philosophy of the Law, publ. in: Latin-
American Legal Philosophy, 20th Century Legal Philosophy Series, Vol. III, Harvard University Press, 
1948, pp. 194-196.
24 
For instance, the following means have been mentioned: the raising of a legislative issue, customary 
law, power of the judge to create legal norms on his own, principle of “the nature of a matter“, general 
principle of freedom (“whatever is not prohibited is permitted”), legal practice, morality. See B. Perić, 
Država i pravni sustav, pp. 224 and 225, N. Visković, Argumentacija i pravo, PF u Splitu, Split, 1997, p. 
70, D. Vrban, Država i pravo, p. 464, C. Perelman, Problem praznina u pravu, publ. in: Pravo, moral i 
filozofija, pp. 132-135, V. Miličić, Opća teorija prava i države, p. 344 and L. Recaséns Siches, Human 
Life, Society and Law: Fundamentals of the Philosophy of the Law, p. 194.
25 
See K. Larenz, C.-W. Canaris, Methodenlehre der Rechtswissenschaft, p. 202 ff. and R. Guastini, 
L’interpretazione dei documenti normativi, pp. 191 and 192. By contrast, Miličić holds that the filling 
of gaps in the law per analogiam is inappropriate and is at odds with some important postulates of 
the dogmatics of law. For more details on the reasons against the application of analogy, see V. Miličić, 
Opća teorija prava i države, pp. 343 and 344.
26 
See N. Visković, Teorija države i prava, p. 262.

282
DIGNITAS n Legal Argumentation and the Challenges of Modern Europe
Statutory analogy (analogia legis) refers to the application of a 
legal norm regulating case A to an essentially similar (analogous) 
case B for which no legal norm exists.
27
 Essential similarity betwe-
en any two cases reveals itself both as similarity between their es-
sential characteristics
28
 and as identity of interests and aims (ratio 
legis) which the law should protect with respect to both cases.
29
In the City Cemetery case, as is the case when attempting to 
apply an act as lex generalis, the application of statutory analogy 
would at the most provide a questionable solution since the cho-
ice of a legal norm regulating a case analogous to the multiple 
alienation of the right of use of a grave would also depend on the 
previously taken view on the legal nature of the disputed right of 
use.
30
When a gap in the law is encountered in the application of law 
and a statutory analogy does not provide a clear enough solution, 
the rules of a so-called legal analogy, i.e., on the use of so-called 
general principles of law, acquire special importance.
31
 When fil-
27 
See B. Perić, Država i pravni sustav, pp. 225 and 226, R. Guastini, L’interpretazione dei documenti 
normativi, pp. 154-157, V. Miličić, Opća teorija prava i države, p. 343, K. Larenz, C.-W. Canaris, Me-
thodenlehre der Rechtswissenschaft, p. 202, M. Pavčnik, Teorija prava, pp. 510 and 511, N. Visković, 
Teorija države i prava, p. 262, N. Visković, Argumentacija i pravo, pp. 66 and 67, E. Ottová, Teória 
práva, Heureka, Šamorín, 2006, p. 280, P. Koller, Theorie des Rechts, p. 231, G. Tarello, Argumentacija 
tumačenja i sheme obrazlaganja u pridavanju značenja normativnim tekstovima, Zbornik za teoriju 
prava, vol. 4 Srpske akademije nauka i umetnosti, Beograd, 1990, pp. 246-249 and L. Recaséns Siches, 
Human Life, Society and Law: Fundamentals of the Philosophy of the Law, p. 197.
28 
Thus, for example, the right in respect of which protection is sought in case B (for which no legal 
norm exists) would be essentially similar to the right in case A (for which a legal norm exists), if the 
legal nature of both these rights (as an essential element) were the same (e.g., two real rights) or 
essentially the same (e.g., the right of ownership and the property component of copyright). Further-
more, the legal relationship in case B (for which no legal norm exists) would be essentially similar 
to the legal relationship in case A (for which a legal norm exists), if the legal position of subjects of 
these relationships (as an essential element) were essentially the same (e.g., the legal position of co-
heirs with respect to the estate and the legal position of co-owners with respect to property). For the 
second example, see Ž. Harašić, Problem razgraničenja “lakih slučajeva” (easy cases) i “teških slučaje-
va” (hard cases), Zbornik Pravnog fakulteta u Zagrebu, Vol. 56, No. 1 (2006), Zagreb, pp. 102-105. For 
more examples of essential similarity between essential features of compared cases, see M. Pavčnik, 
Why Discuss Gaps in the Law, pp. 80 and 81.
29 
See B. Perić, Država i pravni sustav, pp. 225 and 226, N. Visković, Teorija države i prava, p. 262, N. 
Visković, Argumentacija i pravo, pp. 66 and 67, D. Vrban, Država i pravo, pp. 464 and 465, K. Larenz, 
C.-W. Canaris, Methodenlehre der Rechtswissenschaft, pp. 202-204, F. Bydlinski, Grundzüge der ju-
ristichen Methodenlehre, pp. 63 and 64, M. Pavčnik, Teorija prava, pp. 510 and 511, M. Pavčnik, Why 
Discuss Gaps in the Law, pp. 80 and 81, P. Koller, Theorie des Rechts, pp. 231 and 232 and V. Miličić, 
Opća teorija prava i države, p. 343.
30 
See fn. 20.
31 
See B. Perić, Država i pravni sustav, p. 226, R. Guastini, L’interpretazione dei documenti normativi, 
pp. 191 and 192 and K. Larenz, C.-W. Canaris, Methodenlehre der Rechtswissenschaft, p. 206. Tarello 
refers to restraint with respect to the “operative power” of legal analogy by noting that “in all the co-
untries of continental Europe and irrespective of its being explicitly mentioned in some codes, it is 
used very rarely – since huge differences have come to be disclosed not only in terms of the nature 
of the general principles but also in respect of their contents”. G. Tarello, Argumentacija tumačenja i 
sheme obrazlaganja u pridavanju značenja normativnim tekstovima, pp. 270 and 271.

283
DIGNITAS n Antinomy between the General Principles of Law
ling a gap in the law by legal analogy (analogia iuris), the applier 
of the law first has to turn to the legal system in its entirety
32
 and 
then find in it several legal norms that for different factual circum-
stances envisage identical legal consequences.
33
 It is from these 
legal norms that the applier of the law goes on to draw certain 
general principles of law on the basis of which he then deduces 
the relevant legal norm and applies it to the case in hand which 
the law has not regulated, although it should have.
34
Especially noteworthy in the City Cemetery case is the fact that 
throughout the proceedings both the claimants and the defendant 
referred in their arguments to the general principles of law as the 
final substantiations of their views. The claimants referred to the 
principle nemo plus iuris ad alium transferre potest quam ipse 
habet in order to substantiate their request for it to be determined 
that they were the exclusive holders of the disputed right of use, 
while the defendant, in defence of her claim, referred to the prin-
ciple of protection of legal circulation in so far as it relates to the 
protection of an acquirer who acted in good faith (bona fides).
35
There is no doubt that, as general principles of law, both the 
principle nemo plus iuris and the principle of protection of legal 
circulation represent important means of legal argumentation. 
Thus, for example, in Struck’s catalogue of topoi they are descri-
bed as the relevant “standard arguments,”
36
 of which the majority 
constitute, according to Visković, “well-known legal principles or 
supreme axiological rules”.
37
Both the principle nemo plus iuris and the principle of protec-
tion of legal circulation can be drawn, in conformity with the ru-
32 
See B. Perić, Država i pravni sustav, p. 226.
33 
See K. Larenz, C.-W. Canaris, Methodenlehre der Rechtswissenschaft, p. 204 and F. Bydlinski, Grun-
dzüge der juristichen Methodenlehre, p. 67 and 68.
34 
See B. Perić, Država i pravni sustav, p. 226, D. Vrban, Država i pravo, p. 465, V. Miličić, Opća teorija 
prava i države, p. 343, M. Pavčnik, Teorija prava, pp. 511 and 512, K. Larenz, C.-W. Canaris, Methoden-
lehre der Rechtswissenschaft, pp. 204 and 205 and E. Ottová, Teória práva, pp. 280 and 281.
Ac
cording to Tarello, the method for deriving the general principles of law from the totality of all 
the norms of a certain positive legal system has its roots in Savigny’s understanding of the law as an 
organic expression of the Volksgeist. Tarello further points to the belief that the general principles of 
law are to be deduced from the natural law (stemming from the learning of the natural law school) 
and the belief that the general principles of law are to be deduced from the laws recognised by the 
so-called civilised nations (stemming from the learning of 19th century legal liberalism). See G. Tarel-
lo, Argumentacija tumačenja i sheme obrazlaganja u pridavanju značenja normativnim tekstovima, 
p. 270.
35 
See the Zagreb Municipal Court Judgment, P-1459/03 of 16 September 2003 and the Zagreb County 
Court Judgment, Gž-1323/04-2 of 10 October 2006. 
36 
See G. Struck, Katalog toposa, Pravni vjesnik: tromjesečni glasnik za pravne i društveno-humanistič-
ke znanosti Pravnog fakulteta u Osijeku, Vol. 3, No. 3-4 (1987), pp. 406 and 408.
37 
N. Visković, Argumentacija i pravo, p. 57.

284
DIGNITAS n Legal Argumentation and the Challenges of Modern Europe
les on the application of the so-called legal analogy, from a whole 
set of legal norms that jointly belong to the one and the same (in 
this case the Croatian) legal system. The principle nemo plus iuris 
provides the basis for, e.g., the rules on the acquisition of rights 
(right of ownership and other real rights, rights in personam, right 
of inheritance, etc.), the rules on representation and the rules on 
the delegation of jurisdiction. And the principle of protection of 
legal circulation, especially in so far as it relates to the protection 
of the bona fide acquirer, provides the basis for, e.g., the rules on 
the acquisition of an immovable or movable property from a non-
owner, the rules on the acquisition from a pseudo-heir, the rules 
on the bona fide acquirer of a negotiable instrument, the rules on 
the offer and acceptance by an unauthorised person and the rules 
on the non-confiscation of a pecuniary gain acquired by means of 
a criminal deed from a third party that acquired it in good faith.
When filling gaps in the law by the so-called legal analogy it 
is, therefore, now necessary to deduce from these principles the 
relevant legal norms which it would be possible to apply to the 
issue in dispute in the City Cemetery case. Consequently, from the 
principle nemo plus iuris, it is possible to derive the legal norm 
according to which the assignor’s right of use is a precondition 
for the acquisition of the right of use of a grave on the basis of an 
assignment contract. Of course, the defendant could not acquire 
the right of use of the graves from R. N. on the basis of such a le-
gal norm, as he was not the lawful holder of the disputed right of 
use. On the basis of such a legal norm it would only be possible 
to decide that the claimants are the holders of the disputed right 
of use since, in the case of their acquisition, the precondition of 
the predecessor’s right of use is met. On the other hand, from the 
principle of protection of legal circulation in so far as it relates to 
the protection of the bona fide acquirer it is possible to derive the 
legal norm according to which the acquirer, upon his registration 
in the grave register, acquires the right of use of a grave as if he has 
acquired it from its lawful holder if, acting with trust in the grave 
register, he has acquired it in good faith from a person who was 
registered as, but was not, the holder of the right of use of that 
grave. On the basis of such a legal norm the defendant could, of 
course, have acquired the disputed right of use since when she 
entered into the assignment contract with R. N., although R. N. was 
not the lawful holder of the disputed right of use, she acted with 

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DIGNITAS n Antinomy between the General Principles of Law
trust in the truthfulness of the contents of the grave register, i.e., 
she acted in good faith. In this case, the claimants’ request that it 
be determined that they, and not the defendant, are the exclusive 
holders of the disputed right of use should be refused.
As it follows from this deduction procedure, the application 
of the so-called legal analogy at this stage results in two general 
principles of law on the basis of which two legal norms are crea-
ted, the normative qualifications of which produce two different 
solutions to the legal issue in dispute.
Therefore, if we decide to resolve the issue in dispute by 
applying the so-called legal analogy, i.e., by using the two general 
principles of law, we first have to solve another issue relating to 
legal argumentation: the existence of antinomy.
3.2.  Antinomy between the general principles of law 
and the use of the speciality criterion
In legal theory the term antinomy is understood as contradiction 
(inconsistency,
38
 logical mismatch of contents,
39
 incompatibility,
40
 
discord in obligatoriness,
41
 conflict
42
) between two or more legal 
norms (or two or more general principles of law) relating to one 
and the same social relationship (i.e., factual conditions).
43
 Ac-
cording to Ross, antinomies (inconsistencies) between two legal 
norms can take three different forms: 1) total-total antinomy or ab-
solute antinomy (i.e., “where neither of the norms can be applied 
under any circumstances without conflicting with the other”); 2) 
total-partial antinomy or antinomy between the general and the 
particular rule (i.e., “where one of the two norms cannot be ap-
plied under any circumstances without coming into conflict with 
the other, whereas the other norm has in addition a further field 
38 
See A. Ross, On Law and Justice, Stevens & Sons Limited, London, 1958, pp. 128-132.
39 
See D. Vrban, Država i pravo, p. 466.
40 
See N. Bobbio, O kriterijima za rješavanje antinomija, publ. in: Eseji iz teorije prava, Logos, Split, 
1988, pp. 124 and 125, R. Guastini, L’interpretazione dei documenti normativi, pp. 243 and 244, N. 
Visković, Argumentacija i pravo, pp. 70 and 71, M. Pavčnik, Teorija prava, pp. 520 and 521 and G. Ta-
rello, Argumentacija tumačenja i sheme obrazlaganja u pridavanju značenja normativnim tekstovima, 
p. 253.
41 
See V. Miličić, Opća teorija prava i države, p. 345.
42 
See G. Tarello, Argumentacija tumačenja i sheme obrazlaganja u pridavanju značenja normativnim 
tekstovima, p. 253.
43 
See B. Perić, Država i pravni sustav, pp. 190 and 191. According to Perelman, contradiction may exist 
only between a true and a false statement, whereas in the case of legal norms it is more appropriate 
to speak of “the existence of discord between guidelines relating to the same subject matter”. C. Pe-
relman, Antinomije u pravu, publ. in: Pravo, moral i filozofija, Nolit, Beograd, 1983, p. 116.

286
DIGNITAS n Legal Argumentation and the Challenges of Modern Europe
of application in which it does not conflict with the first one”); 
and 3) partial-partial antinomy or the overlapping of rules (i.e., 
“where each of the two norms has a field of application in which 
it conflicts with the other, but also a further field of application in 
which no conflict arises”).
44
The City Cemetery case deals with the existence of an (“total-
partial”) antinomy between two general principles of law – nemo 
plus iuris and the protection of legal circulation in so far as it re-
lates to the protection of the bona fide acquirer. Specifically, the 
case concerns the existence of the “total-partial” antinomy betwe-
en the legal norms deduced from the two abovementioned ge-
neral principles of law with respect to the circumstances of the 
analysed case,
45
 i.e., of a “total-partial” antinomy between the ge-
neral principles of law in concreto.
46
In view of the fact that antinomies in general, and thus also an-
tinomies between the general principles of law, lead to negative 
consequences, such as the weakening of a legal system’s coheren-
ce or the undermining of the legal certainty of addressees of legal 
norms, legal orders most frequently adopt three well-known juri-
dical criteria for solving them: the criterion of time (lex posterior 
derogat legi priori), the criterion of hierarchy (lex superior dero-
gat legi inferiori) and the criterion of speciality (lex specialis de-
rogat legi generali).
47
 However, as Ross correctly notes, the criteria 
of time, hierarchy and speciality “are not axioms, but principles of 
relative weight, co-operating in the interpretation with other con-
siderations – in particular with an evaluation concerning which 
way of achieving harmony will best agree with common sense, 
popular legal consciousness, or presumed social objectives”.
48
 Of 
course, in addition to these juridical criteria, in the case of a spe-
cial type of antinomy – antinomy between the general principles 
of law – regular reference is also made to the so-called dimension 
44 
A. Ross, On Law and Justice, pp. 128 and 129. Compare R. Guastini, L’interpretazione dei documenti 
normativi, pp. 245 and 246.
45 
On the “circumstances of a case” as a precondition for the giving of precedence to one general 
principle of law over another in the case of a collision of principles, see R. Alexy, On the Structure of 
Legal Principles, Ratio Juris, Vol. 13, No. 3 (2000), pp. 296 and 297.
46 
As a rule, the general principles of law come into conflict only when applied to a concrete case 
(in concreto). See R. Guastini, L’interpretazione dei documenti normativi, p. 218. On antinomies in 
concreto and antinomies in abstracto, see ibid., p. 244. 
47 
See B. Perić, Država i pravni sustav, pp. 190-192, R. Guastini, L’interpretazione dei documenti nor-
mativi, pp. 249-251 and N. Bobbio, O kriterijima za rješavanje antinomija, publ. in: Eseji iz teorije 
prava, p. 125.
48 
A. Ross, On Law and Justice, p. 134.

287
DIGNITAS n Antinomy between the General Principles of Law
of the “weight” or importance of a principle, which dimension 
should be an important factor in the giving of precedence in the 
application of law to one of the opposing principles when sol-
ving collisions between the general principles of law in a concrete 
case.
49
According to the criterion of time, which is primarily based on 
the view that “he who comes later knows more than he who co-
mes earlier,”
50
 the more recent legal norm stands in preference to 
the earlier one with respect to the application of law. In the case of 
ius scriptum, it is not too hard to establish which legal norm is the 
more recent one and which the earlier one. However, it is much 
harder to determine the temporal order of the emergence of legal 
norms in the case of customary law norms,
51
 and even more so in 
the case of applying the general principles of law. Due not only 
to the difficulties encountered in determining which of the two 
conflicting general principles of law is the earlier one and which 
is the more recent one, but also to their specific nature
52
 defined, 
among other things, by the very notion of their longevity (“sedi-
ment of legal wisdom through the centuries”
53
), the criterion of 
time does not seem appropriate for resolving antinomies betwe-
en the general principles of law.
54
On the basis of the criterion of hierarchy, according to whi-
ch a higher-ranking authority knows more than a lower-ranking 
authority, the higher legal norm has priority with respect to the 
application of law over the lower one. In the majority of cases the 
hierarchy of legal sources is clearly established so the use of the 
hierarchy argument in most cases is a relatively simple operation. 
However, when attempting to establish a hierarchical relationship 
49 
See R. Dworkin, Taking Rights Seriously, Harvard University Press, Cambridge, Massachusetts, 
1978, pp. 26 and 27, R. Alexy, On the Structure of Legal Principles, pp. 296 and 297, R. Guastini, 
L’interpretazione dei documenti normativi, pp. 218, 219 and 253, M. Atienza, Argumentiranje in usta-
va, Revus, No. 9 (2009), Ljubljana, pp. 114 and 115 and M. Novak, Poglavlja iz filozofije in teorije prava, 
Evropska pravna fakulteta, Nova Gorica, 2008, pp. 299 - 323.
50 
N. Bobbio, O kriterijima za rješavanje antinomija, publ. in: Eseji iz teorije prava, p. 128.
51 
See ibid., p. 125.
52 
On the basic characteristics of the general principles of law, see H. L. A. Hart, The Concept of Law, 
Oxford University Press, New York, 1997, pp. 260-263, R. Dworkin, Taking Rights Seriously, pp. 22-28, 
R. Alexy, On the Structure of Principles, pp. 299-304, M. Reßing, Prinzipien als Normen mit zwei Gel-
tungsebenen, Archiv für Rechts- und Sozialphilosophie, Vol. 95, Heft 1, Franz Steiner Verlag, 2009, pp. 
28-48 and M. Novak, Poglavlja iz filozofije in teorije prava, pp. 327 - 347.
53 
B. Perić, Država i pravni sustav, p. 181.
54 
On the inadequacy of the criterion of time for solving antinomies between the general principles of 
law, based on a different argumentation, see R. Guastini, L’interpretazione dei documenti normativi, 
p. 218.

288
DIGNITAS n Legal Argumentation and the Challenges of Modern Europe
between the general principles of law,
55
 the decision of which ge-
neral principle of law is the higher-ranking one and which is the 
lower ranking one, would be accompanied by great uncertainty 
in view of the nature of the general principles of law and the diffe-
rent views on their origins (natural law, laws recognised by the so-
called civilised nations, the totality of provisions of a legal system, 
morality, justice etc.). Therefore, as is the case with the criterion 
of time, the criterion of hierarchy seems inadequate for resolving 
antinomies between the general principles of law.
56
Finally, according to the criterion of speciality, which is based 
on the principle of justice (in the conventional sense of the word 
- suum cuique tribuere) and the notion that all the persons be-
longing to the same category should be treated equally,
57
 a legal 
norm that specifically regulates a certain social relationship has 
priority with respect to the application of law over a legal norm 
that regulates this same relationship in a general manner. Thus, in 
order for the speciality criterion to be applied, it is necessary to 
determine the contents of legal norms that stand in contradiction 
to each other. Therefore, precisely because the use of the speci-
ality criterion entails the determination of contents as opposed 
to the determination of the moments of emergence or of the hi-
erarchical order of normative dispositions that contradict each 
other, the speciality criterion is an acceptable means for resolving 
“total-partial” antinomies between the general principles of law, 
as opposed to the other two criteria.
58
 In other words, it is much 
easier to establish the contents of the general principles of law, 
as they represent the “sediment of legal wisdom through the cen-
turies” and “a deep sediment of legal experience and skill, legal 
philosophy and logic”,
59
 than the moment of emergence or the 
hierarchical rank of an individual general principle of law.
55 
On attempts at introducing a hierarchical order among the general principles of law, see B. Perić, 
Država i pravni sustav, pp. 181 and 182 and V. Miličić, Opća teorija prava i države, pp. 119-123.
56 
On the basis of the argument that the general principles of law are legal norms of the same rank in 
the hierarchical order of the sources of law, the same conclusion is also reached by Guastini. See R. 
Guastini, L’interpretazione dei documenti normativi, p. 218.
57 
See N. Bobbio, O kriterijima za rješavanje antinomija, publ. in: Eseji iz teorije prava, pp. 128, 130 
and 131.
58 
An opposite stance is taken by Guastini who, however, proceeds from the claim that it is mostly the 
so-called partial-partial antinomy which occurs between the general principles of law. Hence, accor-
ding to Guastini, the criterion of speciality is just as well not applicable to the solving of antinomies 
between the general principles of law, since in the case of the partial-partial antinomy there is no 
genus-species relationship between classes of factual states regulated by two principles of law. See R. 
Guastini, L’interpretazione dei documenti normativi, p. 218.
59 
B. Perić, Država i pravni sustav, p. 181.

289
DIGNITAS n Antinomy between the General Principles of Law
Hence, after having decided to apply the speciality criterion as 
the most appropriate criterion for resolving the antinomy betwe-
en the principle nemo plus iuris and the principle of protection 
of legal circulation in so far as it relates to the protection of the 
bona fide acquirer in the City Cemetery case, it is first necessary 
to determine their contents in concreto and thereafter to establish 
which of these two principles’ contents, with regard to the con-
ditions of the case, represent a general and which a specific legal 
regulation.
As has already been noted, the content of the legal norm which 
in the analysed case was deduced from the principle nemo plus 
iuris is the regulation of a precondition for every acquisition of a 
right – the precondition of the existence of the predecessor’s ri-
ght. On the other hand, the content of the legal norm which in the 
analysed case was deduced from the principle of protection of 
legal circulation in so far as it relates to the protection of the bona 
fide acquirer is the regulation of a precondition for the acquisiti-
on of a right when this right is acquired from a person who was 
not the holder of the right being acquired. It follows therefrom 
that the two principles’ normative dispositions with regard to the 
circumstances of the City Cemetery case are not equal in scope. 
While the principle nemo plus iuris refers to the general catego-
ry of “acquisition of rights”, the principle of protection of legal 
circulation in so far as it relates to the protection of the bona fide 
acquirer concerns one particular category of “acquisition of rights 
in good faith”. Consequently, it may be concluded that under the 
circumstances of the analysed case the nemo plus iuris principle 
is represented by a general deduced normative disposition, while 
the principle of protection of legal circulation in so far as it relates 
to the protection of the bona fide acquirer is represented by a spe-
cial deduced normative disposition.
Since antinomy between the general principles of law may arise 
only in concreto,
60
 when opposing principles come into conflict 
with each other through legal norms deduced from these same 
principles, it seems that the use of the dimension of “weight” or 
importance of the general principles of law in the case of the “to-
tal-partial” antinomy between principles, thus actually amounts 
to the application of the criterion of speciality to the solving of 
60 
For the two levels of validity of the general principles of law (the abstract and the concrete), see M. 
Reßing, Prinzipien als Normen mit zwei Geltungsebenen, pp. 46-48.

290
DIGNITAS n Legal Argumentation and the Challenges of Modern Europe
an antinomy between legal norms deduced from these principles 
under the circumstances of a concrete case.
61
 In this context, the 
application of the criterion of speciality should be understood in 
Bobbio’s sense of the word, as the achievement of the principle of 
justice suum cuique tribuere.
4. CONCLUSION
By using the speciality criterion as the most appropriate cri-
terion for resolving the antinomy between the contents of the 
analysed principles in concreto, priority should be given to the 
principle of protection of legal circulation in so far as it relates to 
the protection of the bona fide acquirer, as a special normative 
qualification that in the case in hand has derogative force with 
regard to the general normative qualification from the nemo plus 
iuris principle.
Furthermore, by applying the principle of protection of legal 
circulation in so far as it relates to the bona fide acquirer when fil-
ling the gap in the Croatian law concerning the regulation of the 
issue in dispute in the City Cemetery case, it is to be concluded 
that the defendant, and not the claimants, is the exclusive holder 
of the disputed right of use.
Finally, it appears to follow from the analysed case that when 
the “total-partial” antinomy between the general principles of law 
in concreto is at issue, the dimension of weight and the balancing 
between principles can be replaced by the “dimension of speci-
ality”, i.e., the “dimension of justice”, by applying the criterion of 
speciality in order to solve the resulting antinomy and achieve 
the principle of justice as it is understood in the classical sense of 
suum cuique tribuere.
61 
The same conclusion may also be drawn from the case cited by Alexy as an example of collision 
between the general principles of law. According to the rule-of-law principle in so far as it obligates 
the state to provide for a functioning system of criminal justice, the said case concerns the competent 
bodies’ duty to try the accused. However, from the right to life and the inviolability of one’s body the 
court derives the legal norm according to which these rights should take precedence in respect of the 
application of application of law over the principle of a functioning system of criminal justice if in a 
concrete case “there is a clear and specific danger that the accused will forfeit his life or suffer serious 
bodily harm in case the trial is held“. Of course, the legal norm regulating the specific case in which 
the performance of a trial could seriously endanger the life of the accused or his bodily integrity is 
lex specialis in relation to the legal norm regulating the general duty of performing a trial against an 
accused. See R. Alexy, On the Structure of Principles, p. 296.