Belgrade Legal Theory Group Meeting (24.04.2023.)

Damir Banovic  “Realist Theory of Law”

Belgrade Legal Theory Group organized its sixth event in 2023 with prof. Damir Banovic (University of Sarajevo), as the last part of a series of lectures on the topic of naturalization of law, who talked about realism in legal theory.

Prof. Banovic first emphasized that his work is not in the domain of sociology of law, but legal theory inspired by naturalization and experimental philosophy. There is no unique approach when discussing a Realist theory of law, and people often confuse it with the sociology of law. His starting point was the tradition of American legal realism, which criticizes traditional legal theory. The focus of prof. Banovic’s book is on internal criticism, which accepts the existence of law as a special domain, while pointing out the problems with methods of understanding it.

He explained that law has a dual nature, which consists of a normative and social aspect, and raised the question of how to understand law as a social fact – discussing his approach to possible ways of its naturalization. If law can be seen through the eyes of conventionalism, then Hart’s rule of recognition could be asserted as a social rule accepted within a society and practiced in a certain way. If there is no abstract nature of law (and no universal functions), then law as a social fact could be known with the help of other sciences – interdisciplinary. Experimental philosophy could provide insight into what the rule of recognition is in a concrete context, thus telling us what law is.

Following was the Q&A part of the event, with substantial interest from the audience.

The audience was focused on various aspects of the topic, but mostly on his rejection of Kelsen’s theory, as well as possible problems with naturalizing Hart’s rule of recognition because of its internal point of view.

Prof. Banovic answered by claiming that Kelsen’s theory is idealistic in a specific sense – based on logical hypotheses and closed to any sort of empirical input. Also, even though there are potential obstacles to applying the methodology of empirical sciences to human behavior, it is still worth trying. If not for the internal aspect, then perhaps just for the external.

Ending the meeting, Sava Vojnovic thanked everyone for an excellent discussion, as well as prof. Banovic for the interesting lecture.