INTRODUCTION
The philosophy of law has never been a topic that occupied Serbian legal professionals, especially practitioners. Moreover, with the exception of the academic staff for whom this legal field is a specialized area, almost no one seriously approaches the identification of the values that should guide judges’ thinking in the process of applying the law. This might be one of the reasons why the practices of the highest courts in the Republic of Serbia often give the impression of disorientation due to their inconsistency, which, as a rule, leads to the absolute impossibility of predicting the interpretation of basic legal concepts in their application to specific factual situations. If we consider the concept of value as defined by Professor Lukić, [1]value is “what ought to be; it is a demand directed at what is, in the direction of making what ought to be, be, without losing its essence of what ought to be.” The question, therefore, is which values are protected by our courts when applying the law and, on the other hand, whether there is any real (rather than merely proclaimed) correlation between these values and the application of individual norms in specific cases. The answer to this question may lie at the root of the well-known consequence: the absolute unpredictability of judicial reasoning, which could explain the low degree of legal certainty and predictability under which our judicial system operates.
THE RELATIONSHIP BETWEEN VALUES AND THE PUBLIC INTEREST IN THE REPUBLIC OF SERBIA
The Constitution of the Republic of Serbia [2]defines the Republic of Serbia as a state of the Serbian people and all citizens living within it, based, among other things, on adherence to European principles and values. A mistaken or malicious interpretation of this provision could lead to the conclusion that the primary task of the courts is to protect European principles and values, and that the interests of public order are fully exhausted in this task, achieved by copying the norms of some European countries. Lončar, in the maxim that it is always better to copy than to innovate, identifies one of the harmful delusions of our managers and provides strong arguments against such an approach, arguments that could have been directed towards our legal professionals without change[3]. Moreover, it seems that the constitution maker, not by accident, placed the commitment to European values last, behind the interests of the people, the rule of law, social justice, the principles of civic democracy, and the protection of human and minority rights. Therefore, it is somewhat surprising that prominent judges, often consciously or unconsciously, mislead the public by emphasizing this category of commitment to European values as the ultimate priority of public order. Some judges go even further, placing the interests of the European Union, often those of a political nature, in a position of supreme guidance, equating them with the European values mentioned in the Constitution. On the other hand, there is no small number of judges who view the source of values in the institutes of self-management socialism, which can be concluded from the reasoning of their judgments, especially in civil cases. To make the paradox complete, it is often the same judges—those who simultaneously declare their commitment to European values while in practice ruling based on categories more closely associated with the values that defined self-management socialism. The conclusion is unequivocal: the judges themselves have not fully formed a position on what the values they should protect are, and thus, they are uncertain about which European values these should be.
Although it seems that even theorists are unclear about identifying the concept of public interest in practice, and thus about determining the concept of values at a specific historical moment, it remains a fact that Lukić’s definition, at least for the purposes of law, provides a sufficiently solid theoretical foundation for resolving these uncertainties. Since neither the oppressed nor the ruling class exclusively have their own class interests, as Lukić wrote, and since they form the same society – on which their very survival depends – both are interested in the society’s existence and progress in order to maintain and develop the numerous social functions and organized services that serve them for the general benefit. In this area, therefore, there is no conflict but cooperation; at a given level of social development, the state and law, as class formations, also perform important societal functions because, under the given circumstances, a society-wide organization cannot perform them.[4] If we were to place this definition, undeniably based on the premises of the socio-political system that existed at the time, within the context of the current constitutional framework, we could conclude that the public interest represents the interest of all relevant social actors in maintaining and advancing society. This interest is defined, protected, and promoted through their cooperation. Consequently, for the realization of the public interest in each individual case, an unquestionable conviction from the judge would be necessary regarding the cooperation of social actors in defending their common interest. The question arises: What is that interest? The rule of law, in and of itself, certainly cannot be it. Despite some positions of the Constitutional Court of the Republic of Serbia, it is not an end in itself but a means for social progress.[5] Moreover, if this were not the case, judges would be reduced to mere law applicators, indistinguishable from any other authorities applying the law. This would lead to the paradox of an unusual custom[6] , as Hume called it, where “great violence and irregularities go unpunished, while one party calls for obedience to the supreme ruler and the other to the sanctioning of fundamental laws.”[7] The essence is that the social values listed in Article 1 of the Constitution, including the rule of law, European values, and others, are constitutionally recognized mechanisms through which our society achieves the social, or as it is now called, public interest within the current constitutional framework. These values are, therefore, as defined by the Constitution itself, the foundation upon which the state is built. To these values, we must add one general social value mentioned in the constitutional preamble: namely, the state tradition of the Serbian people on one side, and the equality of all citizens and ethnic communities on the other. These values frame the application and interpretation of those in Article 1 of the Constitution.
At the same time, the challenges of the long-standing trend of unification of legal rules, not only within the EU but also in the EU-US relationship, primarily based on international agreements but also to some extent on practical solutions, undeniably relativize issues of national tradition. However, this relativization is not, nor by its nature can it be, absolute. In this context, it is important to note the significant difference between the universal values of humanity, such as human rights, and the implementation of certain legal models into the legal system of the Republic of Serbia in accordance with international agreements, like the Stabilization and Association Agreement with the EU. Despite this, the state’s legal system remains unique and inimitable precisely because of national tradition. Philosophically, Leibniz explained this uniqueness with the example of the Countess of Hanover, who could not find two identical leaves in a park – because if they were identical, it would be one leaf. Fusaro used this example to explain the importance of the uniqueness of each society’s heritage.[8] Legal theory aligns with this view. As Andra Đorđević noted, “the law of every nation must have its own peculiar national character, and often provides the clearest picture of the spiritual and social state of its people,” and thus, “the idea of a unique global law stands, in fact, in opposition to the anthropological organization of the human race.” [9]The meaning of the constitutional preamble, which places the national tradition of the Serbian people above the constitutional text, is precisely to preserve the uniqueness of the legal order in accordance with our society’s characteristics. The progress of society within this uniqueness is what Lukić referred to when defining the concept of values as the “essence of necessity.”
THE EXISTANCE OF SUBSTANTIVE JUDICIAL POWER AS A PREREQUISITE FOR THE PROTECTION OF VALUES
What distinguishes judges from other subjects who also apply the law to individual cases is precisely the protection of the public interest through the safeguarding of social values. This was emphasized by Plato, who, when speaking about the guardians of laws and customs and the necessity for these guardians to possess special abilities, described as blind those who “truly have no knowledge of the essence of each thing and who do not have a clear model in their souls, and thus cannot see it, as artists do, as the purest truth, to reduce everything to it and observe it as accurately as possible, and to establish and maintain the laws here regarding the beautiful, just, and good, wherever necessary, while also preserving and maintaining those that already exist.”[10]In other words, for a judge to truly be a guardian of laws and customs, they must delve into the essence of the interests of the state and society, for whose protection the laws exist. This, in turn, narrows the circle of individuals who, in addition to meeting the formal requirements, are also endowed with the special ability to not only understand but also feel the essence and purpose of the law.
The Constitution, as a social pact in theory and, at the same time, a sovereign decree in the reality of our nation[11], does not explicitly define the purpose of the judicial function in protection of the public interest. However, it is clear that this purpose is achieved through the exercise of judicial power and the application of the law in accordance with the public interest. In this context, the correct application of the law is one that protects the social interest, while the incorrect application harms it. Therefore, to apply the law correctly, one must understand the nature of the social interest and possess the ability to discern it. This understanding cannot be a reflection of the judge’s momentary inspiration, nor can it be based on pre-established rules; instead, each judge must be guided by a personal belief grounded in the same values that underpin the state itself. These values serve as both the limits of what is permissible and the minimum necessary for a judge to wield any real power. Judges who lack firm convictions, or worse, those who have no convictions at all, will never fully understand the purpose of their role, and, consequently, will not be able to participate in the exercise of judicial power in its true sense. Furthermore, judicial authority, as a branch of government, can only have real power if it is rooted in the power of conviction, which is its sole source of authority.
The fact that constitutional norms stipulate that courts, as holders of judicial authority, adjudicate in the name of the people, applying primarily the Constitution and then other legal acts, obliges the courts to be vigilant in their application of the law.
This is because every revival of a legal norm in a specific case must ultimately serve to protect the values on which the state is founded. Among these values, the short-term fiscal interest of the state is certainly not one of them, especially not when it is based on illegality often generated by state authorities themselves, which judges typically equate with the public interest. The same can be said for the private interests of political or economic elites, or even the personal interests of the judges themselves. It is understood that the natural weakness of people is the imaginary fear of various challenges, ranging from mental gymnastics, insecurity in one’s own knowledge, potential pressure, and so on, which, due to the method of selecting and appointing judges over long periods, is omnipresent even among judges. On the other hand, there is simply no reward for truly protecting societal values. And even if there were, it is a task that many consider futile. To this, we must add the indisputable social fact, once called by Pasolini “the task of destructive homologation of every authenticity and concreteness,” by which consumer values effectively erase any real social value. [12]Given all the previously mentioned challenges, is it realistically expected that judges can not only be effective but, no less importantly, synchronize their interpretations in such a way that the system meets both the standards of predictability and the protection of values?
The answer to this question depends on the degree of power held by the judiciary. If the judiciary has enough power to oppose other branches of government in cases of a deviation, in order to protect the values of public order, then it can indeed be called a true power. Since the judiciary does not, and cannot, have economic or political sources of power, it is clear that the source of this power can only be the power of conviction. Rassel [13]argues that social unity requires conviction, or rules of behavior, or a prevailing sense, or, at best, a combination of all of these. Without such a foundation, every community (including the judicial one) disintegrates and becomes the prey to other power holders. [14]If we accept Rassel’s statement that a submissive attitude is harmful to intelligence, we arrive at the core of what characterizes the judiciary today, which is still far from being a true judicial authority.
THE EVALUATION OF THE PUBLIC INTEREST BY THE JUDICIARY
The concept of a judge is not defined either by the Constitution or by laws. Furthermore, the role of a judge in exercising judicial authority is not defined. It is interesting that even the judges themselves, both within their associations and through acts in which they have participated, have not defined the mission or short-term goals of exercising judicial authority, and therefore, neither the principles under which they exercise that authority. [15]Although it is logical that such principles should define the boundaries or at least the guidelines that guide judges in performing their judicial function, they cannot be found in any binding act, including the Law on Judges, and not even in the Judicial Code of Ethics. [16]Although the introductory sentence of the Code of Ethics states that, in addition to rules of conduct, ethical principles will be established, and although Section VII lists loyalty to ethical principles as a specific rule of conduct, these principles are simply not present in the Code. Even if we were to classify independence and impartiality in the conduct of a judge (Sections I and II) as principles, it is clear that expertise and responsibility, dignity, commitment, and freedom of association (Sections III-VI) certainly are not – expertise and responsibility, dignity, and commitment are rules of conduct for judges, while the freedom of association is a fundamental human right that also applies to judges. Independence and impartiality, on the other hand, are not reserved only for members of the judiciary but also for members of the legislative and even executive branches. For example, especially in liberal state systems, there are a significant number of state agencies and other authorities, such as the central bank, the Ombudsman, the State Audit Institution, etc., that are both independent and impartial from the executive branch. On the other hand, it is superficial and unserious to reduce such an important function as judicial consciousness to a few rules of conduct, which, incidentally, in the text of the Code of Ethics are at the level of clichés. It seems that the content of the Code of Ethics was copied from the Code of Conduct of the International Criminal Court, although that Code also has a preamble with goals. Therefore, when observing the positive regulations that govern the judicial function, we can conclude that the judge is the bearer of the judicial function who exercises judicial authority by adjudicating and, in doing so, has certain rights and duties, but no mission.
Unlike our Code of Ethics, for example, the Model Code of Judicial Conduct of the American Bar Association, in its preamble[17], clearly defines goals as well as clear rules of conduct. If we take the concept of integrity as an example, which is completely unclear in our Code, American judges know that integrity refers to honesty, sincerity, fairness, dignity, and strength of character, and that the purpose of the integrity requirement is to maintain and enhance public trust in the legal system of the state. Interestingly, according to our Law on Judges,[18] a judge is only required to maintain trust in their personal independence and impartiality, but not in the legal system, which is a complete nonsense. Furthermore, if we compare the Code of Ethics of the State Audit Institution [19]and the Judicial Code of Ethics, it seems that the State Audit Institution Council, compared to the High Judicial Council, takes much more seriously not only public trust in the institution but also the issue of legal regulation, and that the standards of conduct set for auditors are far higher than those set for judges.
Therefore, it is not surprising that the judiciary focuses more on its material position than on important state and social issues, which seem to be completely marginalized. In this way, the judiciary places itself in a subordinate position to the executive branch, renouncing not only the constitutionally proclaimed equality of powers but also the need to maintain, in public, any semblance of the existence of that power in practice.
THE ROLE OF JUDICIAL PRACTICE IN PROTECTING THE PUBLIC INTEREST
Perhaps it is precisely in the previous considerations that the root of the problem characterizing our judicial system can be found. Aside from the fact that there is absolutely no trust in the judiciary within our society, the system itself has been reduced to such mutually contradictory trivialities that it is impossible to even find a thread that traces its course, let alone consistency in its positions. Interpretation of legal concepts at a sufficient level of abstraction is rare; instead, the practice of numerus clauses has led to legal concepts being adapted to individual cases. To illustrate this paradox, we can compare the request for the interpretation of any legal concept, which, by its nature, involves standardization, to the standardization of the length of a bed, for example. The assumption, known to every merchant, is that the prerequisite for both production and trade is the knowledge of the standard length of the bed that we intend to offer to consumers. To know whether a bed of standard length has been delivered, someone must first determine that the standard length of the bed is 190 cm. Then in every case, it will be assessed whether the bed actually had that length, continuing until the standard is changed, for instance, to 200 cm. The same should apply to legal concepts. The task of standardizing terms is carried out by the highest judicial instances, so it should be known in advance how terms are to be assessed. However, our judicial practice largely lacks general standards. If we applied judicial reasoning to the length of a bed, the standards would vary depending on the participants, the type of case, or the needs of the moment. So, for cases involving taxi drivers, the bed length would be 180 cm; in union cases, 160 cm; in banking cases, 170 cm; and for criminal cases, whatever the prosecutor says. At the same time, it would be perfectly acceptable to ask the bed buyer, in passing, to shorten the bed if it is too short or to lengthen it if it is too long. It is precisely due to these ad hoc interpretations of concepts that legal uncertainty arises, and the predictability of the outcome of proceedings approaches a magical 50%. This specifically means that a party has a 50% chance of winning the case, even when they are 0% right, which inevitably leads to the unreasonable burdening of courts. Even worse, it further entrenches the court as an instrument for avoiding the law. Why would a debtor voluntarily pay a debt when, in a civil procedure, they can get a grace period of at least 5 years, and still have a chance of winning the case? Why would an offender voluntarily pay a fine when they know that, due to the number of cases, there is a real chance that the case will become time-barred? Why would a civil servant issue a lawful second-instance decision when they know that an Administrative Court judge has 1,200 cases and that the decision will likely be made only when they retire in three years? It seems that the biggest problem in judicial practice is that these widely recognized consequences in society have not even been identified as a problem, and, as a result, no attempt has been made to find the causes, the removal of which could steer the system toward functionality.
Sa druge strane, nedovoljna preciznost i opštepristuna površnost pri tumačenju važnih instituta, stvara takozvani klizav teren (eng. slippery slope) koji dovodi do raspada konzistentnosti čak i u onim oblastima društvenog života koji čine esenciju svakog društva. Ako analiziramo stav sudske prakse kod određivanja granica slobode izražavanja, npr. krivičnog dela uvrede (bez ulaska u celishodnost inkriminacije), dolazimo do zaključka da oni koji se bave “političkom delatnošću” nemaju pravnu zaštitu u slučaju vređanja. Ovo je posledica pogrešnog shvatanja suštine tumačenja člana 10 Evropske konvencije datog od strane Evropskog suda za ljudska prava koji je postavio različite granice trpljenja kritike za javne ličnosti i funkcionere u odnosu na većinu građana. Na stranu što se stav naše sudske prakse sve i da je konzistentan, a čak ni to nije slučaj, ne podudara sa stavom Evropskog suda koji uvek zahteva pravičnu ravnotežu između suprotstavljenih prava, u ovom slučaju prava na privatnost i dostojanstvo ličnosti i, sa druge strane, slobode izražavanja, za konkretnu analizu je to manje važno. Pretpostavimo da je “nalog” Evropskog suda doslovno primenjen i krenimo od prvog pitanja: šta je to politička delatnost? Da li se ovaj pojam odnosi na one koji žive od politike, pa u tom smislu primaju neki vid naknade, pošto pojam delatnost podrazumeva lukrativni element? Ili su u pitanju samo javni funkcioneri? Pošto je čovek političko biće koje ne samo da podrazumevano i ima i izražava političke stavove, posebno u eri interneta, po kom kriterijumu se tačno razlikuju oni koji se bave političkom delatnosti od onih koji samo izražavaju politički stav? O tome sudska praksa nema stav, već sudije same ad hoc određuju ko jeste a ko nije političar, bez daljeg obrazloženja. Dakle, građani unapred ne samo da ne znaju niti mogu saznati šta je uopšte politička delatnost već ni ne znaju da li se prilikom iznošenja političkog mišljenja bave političkom delatnošću ili ne, pa samim tim i nemaju predstavu kada će imati pravnu zaštitu od krivičnog dela uvrede. Kad bismo, sa druge strane ovaj pojam političke delatnosti suzili samo na javne funkcionere, ispada da je van suda u krivično-pravnom aspektu dozvoljeno vređati sudije, pošto su i oni javni funkcioneri, a s obzirom da su pripadnici sudske vlasti moglo bi se reći i da se bave političkom delatnošću. Ako je to slučaj, kako onda zaštititi dostojanstvo sudije van suda? A ako to nije slučaj, da li sudije uopšte pretenduju da imaju sudsku vlast? Naravno da bi ove logičke posledice bile nezamislive kada bi se stavovi sudske prakse zauzimali preciznim tumačenjem insitituta, sa osvrtom na posledice tumačenja tih instituta u situaciji kada se primene na druge slučajeve, a ne samo na slučaj koji je inicirao tumačenje. To je upravo ono na šta akcenat stavlja primera radi, američki Supreme Court, kada u javnim raspravama insistira na posledicama zauzimanja stava. Zaključak je da pravna sigurnost, pravna izvesnost ali i određena društvena vrednost, nikada ne mogu biti postignuti zauzimanjem stava na pojedinačnom primeru, bez detaljnog, preciznog i dalekovidog tumačenja ključnog pravnog pojma.
Let’s return to the role of judges in protecting societal values, specifically in the case of defamation. Judges who only resolve the issue between two politicians who usurp the criminal court can cause significant harm to the system. In contrast, judges who address issues related to the balance between freedom of expression and fundamental human rights, while also protecting the societal value of respecting differences and, consequently, maintaining civility in communication, along with the implicit protection of everyone’s integrity, will, in the case of two politicians who usurp the criminal court, treat them merely as initiators of the stance to be taken in their case. This stance will ultimately address the legal, rather than personal, issue and will protect the societal value, not personal interests, thus improving the system. This is why the legal system in Serbia differs so much from the legal system in the United States in terms of functionality, and it seems that this is the fundamental difference between the rule of law and the rule of instincts.
CONCLUDING STATEMENTS
The judicial authority represents an independent branch of government composed of judges, and it is not merely an apparatus for resolving legal cases. On the contrary, it is a power based on the authority of persuasion, whose primary duty is to ensure the protection of the values upon which the legal order is built, and it does so by applying the law. Judges are therefore the bearers of judicial power, not employees of state institutions. As such, they must be aware of both their capabilities and their responsibilities, especially when it comes to protecting the values on which the state and society rest. No one but judges can determine how these values will be protected, as no one else has the power to ultimately define the reach of the law in practice. Due to the importance of these issues not only for societal development but also for the functionality of the judicial system, superficiality and reluctance to accept judicial authority in its essence lead to consequences that are even worse than a state where there are neither laws nor judges, and where a village serf decides who is right between two litigants. Because if the village serf did not protect the community’s interests, he would lose his reputation, and the villagers would replace him with another serf.
Vojin Biljić
[1] R. Lukić, System of the Philosophy of Law, Belgrade, 2012, p. 273
[2] Sl. glasnik RS no. 98/2006 and 115/2021
[3] D. Lončar, Inertia of Delusions: Frequent Mistakes of Managers, Valjevo, 2020
[4] R. Lukić, System of the Philosophy of Law, p. 481
[5] This refers to the decision of the Constitutional Court I Uo 45/2020 from September 17, 2020, Sl. glasnik RS, no. 126/20, which dealt with the constitutionality of acts adopted during the state of emergency, where the Constitutional Court elevated the principle of the rule of law above the principle of popular sovereignty and assessed it outside of any context of the values on which the Republic of Serbia is constitutionally based.
[6] This is often seen in practice, especially in situations where holders of judicial power ask representatives of the executive power to grant them some right.
[7] D. Hume, Political Essays, Belgrade, 2008, p.264
[8] D. Fusaro, Defend Who We Are, Milan, 2020
[9] A. Đorđević, System of Private (Civil) Law, Belgrade, 1996, p.38
[10] Plato, The Republic, Belgrade, 2013, p.143
[11] As defined by Borgo, in this sense O. Bo, Belgrade, 2016, p.233
[12] PP. Pasolini, Scrtitti corsari, Milano 1975, str.23: „…Ha cominciato un’opera di omologazione distruttrice di ogni autenticita e concretezza. Ha imposto cioe -come dicevo-i suoi modelli: che sono modelli voluti dalla nuova industrializzazione, la quale non si accontenta piu di un “uomo di consuma”, ma pretende che non siano concepibili altre ideologieche quela del consumo. Un edonosmo neolaico, ciecamente dimentico di ogni valore umanistico e ciecamente estraneo alle scienze umane…“
[13] B. Rasel, Power, Belgrade, 2002, pp.174
[14] Rasel used the phrase “becomes the prey of the tyrant”
[15] By bidnign acts, we do not mean National Strategies, etc.
[16] SL. Glasnik RS, no. 96/2010 and 90/2021
[17]https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/2011_mcjc_preamble_scope_terminology.pdf
[18] Article 3 of the Law
[19] Available at: www.dri.rs