Aleksandar Marković March 12, 2023
In honor of exceptional jurists, in this new occasional column, we present the works and lives of brilliant experts in the field of law. Through certain anecdotes from everyday life and notable thoughts and theories of exceptional jurists, which are applicable even in current circumstances, we aim to bring legal theory closer to practicing lawyers.
What is legal reality, really?
Early in the morning, he opened the door to his office. He hung up his coat and hat, then ordered a coffee. The morning newspaper and legal literature had already arrived on the table. He glanced through the materials, trying to identify the important and urgent matters for work.
Coffee had been missing for some time, so against his usual habit, and as if he had a premonition, the professor called the building’s housekeeper somewhat impatiently and asked why there was no coffee. She replied that the drivers had not delivered the regular coffee supplies. Among the truck drivers, a strange practice had arisen that they had to have heavy security because they needed to secure evidence in case of disputes. Almost as if the question slipped out: “How come? Impossible!” To this, the housekeeper responded that it was said that a driver had allegedly poured some water into the syrup he was transporting, and the court had acquitted him of responsibility. Therefore, the owners of trading companies had to send heavy security with the trucks—to have evidence in case of a dispute, and now the transport was carried out according to established priority.
The professor picked up the newspaper from the table and began to analyze the content, but now with his “encyclopedic eye.” Then he looked at the court practice and began to review that court ruling. Everything was normatively and logically consistent, the evidence was respected, and the judgment was legally clear within the normative and logical framework. Although the obligation was, in fact, one of omission, it was nevertheless established that the act must be proven, even though the purpose, meaning, and value of the norm, as well as its social foundation, had to be addressed.
Hans Kelsen’s concept of law speaks about the fact that the law is only what is written in the statute. Law is, of course, exactly that, but the professor wondered where the problem had arisen. As if a solution dawned on him. “Ah, those damned sophisms—they’ve started to take hold again!”
He didn’t expect to go that far. The professor smiled, recalling the joke by the great American writer Mark Twain at the expense of lawyers, “that there is logic everywhere except in law.” He thought about how to combat this, but smiled again when he remembered German tales and stories from the South, as legal reality is always present. Something was still bothering him—was that really the only problem?
He began to leaf through his “Encyclopedia of Law” again, but feeling a mild nervousness and considering the science he was trying to establish, he decided to take a walk and think, among other things, about whether such a judgment was necessary, whether a different judgment should have been made, and what the outcome would have been or should be. “Kelsen… yes, yes… but Dig… society, social community… interdependence, solidarity, or: simply: unity… therefore, per se, neither Rousseau nor Hobbes can be right… But what is society, a social community, does it exist, what is it, but above all, how and whether to protect it. Can there be a court expert in social sciences who will determine and protect society. Hm, or some social method in professional and practical work because the conclusion suggests that ‘if there is no society, there is no us.’ Maybe we just need to find ‘the path to the right relationship between the individual, society, and the state,’ some actio pro socio, perhaps as an extraordinary legal remedy, but how and against whom. Maybe some social ombudsman! … Some classic ideas: liberal – national – social, as a function of the objective relations of interconnectedness that would be connected with scientific and professional institutions, but with a clear distinction between value judgments and judgments of reality. And if metaphysics is necessary, it should still be connected with real needs – ‘an abstract idea operationalized in a legal norm for social objective needs.’ Maybe, maybe a distribution of sovereignty with balance, with healthy regulation for order, to achieve peace, for the sake of stability.”
While walking, his thoughts continued to swarm. The professor thought about the turbulent times in the world that were swirling. Considering his origins, he wondered what to do: “There are many challenges, but still, what does Switzerland have that we don’t. I don’t know, maybe we should turn to ourselves, see where we were, where we are now. But how the subject is not enough because if we define it hypothetically, we lack the method, certainly synthetic, both in the subject and in the method.”
At that moment, the street light turned on, and the professor instinctively looked at the lamppost, breaking his train of thought for a moment. He paused and thought: “Maybe we should start with some idea, a social value in the social relationship. Hm, it seems abstract, elusive, philosophizing, but without them, direction is lost, and the dynamics of social relations would go into a hard-to-understand chaos. It should be operationally rationalized.” Walking down the street, deep in thought, the professor realized the truth of his premise that the more society develops, the more differentiated and complex it becomes. But realizing this, he also noticed that the social forms of its action did not seem to follow it. He therefore wondered how to understand this fact, especially the social forms in which it takes place and whether classical legal science can provide an answer. He concluded that it is undoubtedly justified for the “Encyclopedia of Law,” but that its action plan of application must also be worked on. He remembered his premise about law, and the idea of some “legal organizational law” for internal specialization came to mind, then social integration for external adaptation, with the cooperation of other scientific disciplines. And the social justification of the state should remain.
It’s easy to think and talk, but action is needed. The professor sat on a bench, took out a notebook, and began to write: “Everything starts with an idea, which should then be developed, not at its core, but on its periphery,” moving from essence to specifics, in the spirit of prescriptive, pragmatic-utilitarian definition. Trying to explain this more clearly to himself, he thought: “That grain of salt, with which everything would be seasoned.”
Intuitive-philosophical ideas kept coming: “Hm, maybe we need a new normative science, perhaps, more concretely, a normative/systemic logic of the sociology of law… a somewhat rational logical determinism… Some identities, hm, of legal ideals and, sometimes, harsh realities, but certainly with real grounding and logical correctness. Who knows, but certainly, though difficult, we need to think about how to conceptualize this, and even harder how to implement it in practice not only legally/administratively-technical, because law in the broader sense is the validity of a beneficial relationship between science and politics, but so that it is valid in practice. It’s easy and nice to talk, but action is needed. It takes will, it takes strength, it takes resisting temptations. Who knows… we’ll see…”
And the professor continued his walk, somewhat pensive and worried, aware of the necessity of action, but also of the capacity for it. Only when he remembered his students did his heart beat faster, and a genuine smile spread across his face.
Based on the book “The Problem of State Justification; Introduction to Legal Sciences: Encyclopedia of Law” by Đorđe Tasić, published in “Official Gazette of FRY”, Belgrade, 1995, and in the book “In Memory of Đorđe Tasić”, Faculty of Law, University of Belgrade and Municipality of Vranje, Belgrade 1999. Anecdote dedicated to Prof. Dr. Đorđe Tasić, a native of Vranje, the first “empiricist” of the sociology of law in our country. Compiled by: Aleksandar Marković, LL.B.
IN HONOR OF OUTSTANDING LAWYERS LEGE ARTIS ● OCTOBER 2022
Short Biography:
Born on October 25, 1892, in Vranje, to a municipal clerk Rista and a homemaker Paraskeva, his innate curiosity, developed work habits from an early age in a house full of children and poverty, as well as perseverance and dedication, helped him become a doctor of legal sciences, professor, theorist, and philosopher of law and sociology, and the founder of the Society for Sociology.
After primary school and six grades of high school in Vranje, followed by the seventh and eighth grades with a high school diploma at the Third Belgrade Gymnasium, Đorđe Tasić enrolled in the Faculty of Law in Belgrade in the 1911/12 academic year, which he completed in 1919 due to the war years, defending a thesis titled “The Problem of State Justification” before a committee composed of the most renowned jurists and theorists of the time – Živojin Perić, as the committee president, and members Slobodan Jovanović and Toma Živanović.
In the same year, he was elected as an assistant professor at the Faculty of Law in Subotica, and from 1922 to autumn 1930, he was a professor at the Faculty of Law in Ljubljana, and from 1930 to April 6, 1941, he was a professor at the Faculty of Law in Belgrade. He was one of the most beloved professors, especially among progressive students.
When World War II broke out, he was the dean. Although the occupier immediately removed him from this position, he was later asked to give lectures, which he refused, and in November 1941, he was interned in the Banjica camp. Even after his release, the special police continued to summon and interrogate him, until the Gestapo arrested him again in 1943 and executed him the next day at the Sajmište.
Upon enrolling in the faculty, Tasić began publishing his literary and scientific works. His interests were very broad, primarily focused on scientific-philosophical research. He dealt with many issues of our social and legal life, and was so active that between the two world wars, there was no significant journal or collection in which he did not publish a scientific contribution or study. He wrote both in Serbian and in several world languages, as evidenced by the fact that one of the greatest, if not the greatest, jurist of the twentieth century, the Frenchman Léon Duguit, reproduced in extenso Tasić’s famous comparative study on Duguit and Kelsen in his four-volume “System of Law,” noting that he thought he himself could not offer a better scientific analysis. The renowned German professor and legal theorist Carl Schmitt held Tasić in such high regard as a scientist that in the pre-war years, he gave a Yugoslav doctoral candidate the topic for a doctoral dissertation “The Scientific Work of Đorđe Tasić.”
A pioneer of sociological research in our country, Tasić was the founder of the Society for Sociology in 1935, which gathered our exceptional experts interested in sociological phenomena in the country and their scientific study. From 1939 to 1941, Tasić was the editor of the journal “Archive for Legal and Social Sciences,” where his texts filled many pages throughout the interwar period. He delved so deeply into the sociological view of the world that he began preparing a major work on the interpretation of laws, introducing the sociological method as something new in legal science, but he did not complete it due to his premature death.
At the commemoration held for him at the Faculty of Law in Belgrade, texts chosen from Tasić’s works by Prof. Radomir Lukić (Tasić’s former student) were read by students. Although he was just over fifty years old, Tasić left behind over six hundred published works in Serbian and other foreign languages. On the facade of the courthouse in Vranje, a commemorative plaque was unveiled on December 10, 1977, to permanently preserve the memory of Dr. Đorđe Tasić.
“Life and Scientific Work of Đorđe Tasić,” R. Simonović, in “In Memory of Đorđe Tasić,” Library “Traces,” Belgrade 1999.rđu Tasiću u spomen”, Biblioteka „Tragovi”, Beograd 1999.