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Workshop 4: Law and Corruption in Turbulent Times: Theoretical and Empirical Perspectives from the Mediterranean and South-Eastern Europe

 

 

 

Abstract

 

This workshop will address interactions between law and corruption in the Middle East and North Africa, and southern and south-eastern Europe. The basic issue we wish to explore is: How is legislation, policy and law-in-practice influenced by corruption, and what regulation and control of corruption is there by law, in a region experiencing the aftermath of the ‘Arab Spring’ and the European sovereign debt and banking crisis? 

 Consideration of the relationship between law and corruption is particularly timely given seismic political, economic and social transformations in these regions. Corruption has been highlighted during both the sovereign debt crisis in the Eurozone, and during mass protests broadly identified with the ‘Arab Spring’. This will be an opportunity to develop scholarship that responds to these unprecedented events in both looking at the enactment, use and failure of law to prevent or punish corruption, and exploring the influence of corruption on the legal process, including the passing of legislation, individual courts cases and the enforcement of law-in-daily life.

 Our definition of corruption is the ‘abuse of public office for private gain’ (World Bank, 1997) and of law as the principles and regulations established by some authority, whether in the form of some legislation or custom. Participants from the fields of legal studies, political science, economics, anthropology, socio-legal studies and history (amongst others) will present their research findings on interactions between law and corruption and consider methodological problems associated with researching it from perspectives including governance, legal realism and social anthropology.

 

Description

This workshop will address interactions between law and corruption in the Middle East and North Africa, and southern and south-eastern Europe. The basic question we wish to explore is: How are legislation, policy and law-in-practice influenced by corruption, and what regulation and control of corruption is there by law, in a region experiencing the aftermath of the ‘Arab Spring’ and the European sovereign debt and banking crisis? 

Definitions

 We take as our starting point definitions of corruption as the ‘abuse of public office for private gain’ (World Bank, 1997, UNDP, 1999) and law as the principles and regulations established by some authority, whether in the form of some legislation or custom.

 The impact of corruption is generally understood to include making markets inefficient, impeding economic growth, preventing poverty alleviation and undermining government legitimacy.   There is also substantial evidence that corruption impedes the creation and maintenance of strong civil society. Corruption encompasses practices by government officials such as embezzlement and nepotism, as well as abuses linking public and private actors such as bribery, extortion and fraud. It occurs in both political (or legislative) systems and bureaucratic offices (or courts), and can be petty or extensive, organized or disorganized.

 However, definitions of corruption are not confined to acts that would be considered illegal under national legislation, but may encompass forms of appropriation of public office/policy for private purposes, such as lobbying, state capture (the direct exchange of public policy for personal advantage) and currying influence (such as orchestrating public policy for votes). In addition, anti-corruption legislation itself may be employed strategically by political actors to consolidate their own power by prosecuting rivals under anti-corruption law, while remaining immune from prosecution themselves.

 The definition of law will include broad socio-legal conceptions, which could embrace non-state forms of social control and organisation (such as workplace culture amongst administrative staff at the courts, or social attitudes to the ethics of bribery), as long as this definition of law is theoretically justified. 

Geographic Focus

 In keeping with the objectives of the Mediterranean Research meeting, this workshop will be open to papers considering law and corruption in European states bordering the Mediterranean (France, Spain, Italy, Greece, Turkey, Albania and the Balkan countries), the islands of the Mediterranean, south-eastern Europe (Bulgaria, Romania and Hungary) and the MENA (including Israel).

Relevance and Contribution to ‘State-of-the-Art’

Consideration of the relationship between law and corruption is particularly timely given recent seismic political, economic and social transformations in Mediterranean and south-eastern European states. Corruption has been highlighted during both the sovereign debt crisis in the Eurozone, and during mass protests broadly identified with the ‘Arab Spring’. Corruption in the EU has been estimated by the European Commission as costing 120 billion Euros per annum, with Italy and Greece ranking amongst the most corrupt member states. Debates about the causes of individual EU states’ inabilities to service their national debts and their capacities to generate sufficient income to do so in the future have included reference to government and social tolerance of corruption as a significant problem.

 Anger about corruption was also identified as an important grievance initiating mass protests in Tunisia and Egypt. Although this momentum seems to have been lost in current debates in Egypt about constitutional reform and the devolution of political power, it is related to debates about the need for increased social justice. It, moreover, remains the key issue in present day debates about ‘dealing with the past’ in Tunisia, in connection with prosecuting members of the previous regime. In Tunisia, addressing cases of past corruption may even be considered more important than dealing with cases involving human rights offenses, since corruption is considered an offence committed towards society as a whole, while human rights violations such as torture have involved individuals. There are also indications that Islamist parties have benefited during the elections from public perceptions that parties that ‘fear God’ are less likely to involve themselves in such practices than secular political groups.

 This MRM workshop will be an opportunity to develop scholarship that responds to these contemporary circumstances in assessing the history and likely future of interactions between law and corruption in the Mediterranean region. It will expand on existing quantitative data on the extent of, and attitudes towards, corruption in the states of the Mediterranean and south-eastern Europe by contributing a coherent body of in depth, empirical research looking at the micro-practices and effects of corruption on law, and the impact of law on corruption-in-practice. It is hoped that this scholarship will develop new understandings of the specificities of interactions between law and corruption amidst significant changes in the politics, economics and societies of this region.

 Papers in this workshop will both look at the enactment, use and failure of law to prevent or punish corruption, and explore the influence of corruption on the legal process, including the passing of legislation, individual courts cases and the enforcement of law-in-daily life, such as traffic regulations.   We do not merely propose a normative perspective of corruption as a political failing, economic impediment or social evil, but also encourage analyses of it as a process through which agents ‘do’ legal work. We would therefore encourage papers adopting a non-normative, socio-legal perspective that considers corruption as the oil that keeps the machinery of poorly resourced legal systems going: by providing an informal wage to poorly paid police forces, hastening the issuing of judicial rulings in convoluted cases, and serving powerful interest groups more efficiently. We will favour qualitative papers, or those in which there is substantial qualitative analysis of quantitative data (such as international corruption surveys or statistics about legal cases involving allegations about corruption). 

Participants and Theoretical Approaches

 Participants from the field of legal studies, political science and economics will be invited to discuss theoretical approaches to corruption and law, while anthropologists, socio-legal scholars and historians (amongst others) will present their own research findings on this issue and consider the methodological problems associated with researching it.

   Approaches to the topic may include, but will not be restricted to:

    Governance: Governance theory assumes that the promotion of principles associated with democracy, such as accountability, openness, transparency, integrity and professionalism in the public sector are likely to prevent corruption. It consequently supports the effective employment of targeted legislation through government policies and the actions of law enforcers as a powerful mechanism for reducing, or preventing, corruption. The possibility of German tax inspectors being seconded to Greece in order to develop an effective tax collection system in an indication of increasing demands for governance within the Eurozone (or, at least, from member states such as Germany and the Netherlands). Examples of this in the legal sphere might include legislation mandating compliance regimes under which suspicious financial transactions will be reported, inspections of the judicial process by a Ministry of Justice and the inculcation of professional discipline within a police force working against the temptation to accept bribes. 

 The governance approach offers a model linking corruption to current political events in the Mediterranean and south-eastern Europe. Papers adopting the theory of governance might consist of an ethnography of ‘legal’ (in the broadest sense of the term) measures against corruption, and/or assess past attempts to address corruption through the passing of legislation and its outcomes, or suggest governance programmes which may effectively address corruption under new political administrations.

 However, the criticism can be made that the effect of legislative reform, legal prosecutions and improvements to the working conditions of the legal professions are often limited, and that corruption can only be eradicated by wider structural and social change. Papers adopting this approach may, therefore, concentrate on the importance of tackling corruption both through and within the legal system towards promoting wider social justice, and the implications of past failures to encourage good governance for democracy, civil society and economic growth.

 ‘Legal’ Corruption: Kaufmann and Vicente emphasise a definition of corruption within governance theory, extending it to situations in which corruption is actually legal, that is not in contravention of current national legislation. In their analysis, corruption is ‘a collusive agreement between a part of the agents of the economy who […] are able to swap […] in terms of positions of power (i.e. are able to capture, together, the allocation process of the economy).’ The authors give an example in which ‘a politician has close “connections” to the private sector and both exploit such connections for mutual benefit. These two parties may exchange favours over time in which they ‘pay one another’ through the allocation of specific legislation or procurement contracts (by the politician to the private sector counterpart) and earmarking political campaign funding (by the private sector connection to the politician)’ (Kaufmann and Vicente, 2005). An example of ‘legal’ corruption currently being addressed in Tunisia concerns the sale of cultural heritage. Former president Ben Ali issued a decree in 2005 that changed the legal status of an archaeological site from one of ‘cultural heritage’, which is public property, into private property of the state. The property was thus transferred from the ministry to an institution that manages the private property of the state for € 52.000, which in turn sold it for the same price to Ben Ali’s son in law. The estate’s value is around € 12.000.000.

 Papers focussing on corruption amongst political elites might analyse the influence of political power in legal processes, such as the impact of business on the passing of legislation or ineffective legal monitoring of business transactions. The theory of legal corruption encourages the study of how politicians used the law for their own benefit. Papers adopting this theory might consist of ethnographies of ‘legal corruption’. Attention could also be paid to how the judiciary deals with these practices.

   Legal Realism: This approach stresses that legislation is often open to interpretation, which makes it important to study the work of legal practitioners. However, this is not only because it is they who interpret legislation, but also because their practice might be influenced by forces other than the statutory and procedural rules, such as corruption. Additionally legal anthropology, rooted in a strong relativist tradition, has frequently conceived of corruption as forms of ‘informal practices’, and ‘semi-legal exchanges’, which might be contributory factors to a legal system’s ‘judicial culture’.

 The legal realist perspective enables analysis of the role of corruption as part of the daily practices of legal practitioners such as judges, and conclusions about the influence of corruption on these practices.   Papers adopting the approach of legal realism might address the different ways in which this occurs; examples might range from litigants paying a sum of money in exchange for a beneficial judgment to judges asking the litigant for a service, promising that he/she shall have another look into the file. Also, the extent to which these practices are ‘out in the open’ can be addressed (is the envelope handed in the judge’s office in court, or do the actors meet somewhere outside?).

 Historical (following on Forms of Corruption in History and in Contemporary Society (CORHICS 2011), Paris 1 Sorbonne University, 14-16 Sept 2011): Historical perspectives might consider what contribution corruption has made, and will have in the future, to legislation and legal practice.   What is the genealogy of corruption and how is this influenced by law? Do phenomena of corruption evolve over time and why? What is the impact of these phenomena on forging the identity of certain individuals, communities or states? Is the ideal that corruption will disappear one day utopian?

 Social Anthropology: Papers considering interactions between law and corruption from the perspective of social anthropology might look at the impact that corruption has on the way that litigants use the law and their relationships to legal professionals (such as judges, lawyers and police). How do litigants conceive of their legal rights within a legal system they regard as corrupt? How do they get the results they want? Is there a resulting pattern of avoidance of the law? Have recent political events increased expectations from, or decreased trust in, legislation and law-in-practice?   

 Fields of Study

We anticipate that the subjects of papers will be broad, given the rich material available to researchers working on the Mediterranean and south-eastern Europe and the wide appeal that this workshop will have to scholars working in a diversity of fields. However, some areas of study we anticipate will be covered include:

 The Legislative Process and its Restrain on the State:How has corruption affected the legislative process in a state in the past, and how is this influence likely to change? Are states more likely to be bound by their own legislation in the future? 

 The Working of the Judiciary (and Court Administration): The classic example of corruption is bribery, in which a public official is paid by someone to render them a service outside of their sphere of duties. Bribery in the legal system may impede the legal process (such as the delivery of notification of forthcoming court cases to litigants), influence judicial decisions (by biasing the judge in one litigant’s favour), or impede enforcement (such as preventing imposition of state penalties for traffic violations); while legislation and the legal process may attempt to curtail the practice of bribery by punishing its instigators or recipients. 

 Social attitudes towards corruption of the legal process and social practices that might be considered corrupt in the law: What evidence is there that public hostility towards corruption (such as nepotism in access to government employment, or the expectation that traffic police will demand bribes for minor legal infractions) has been a contributory factor to the mass protests associated with the Arab Spring, and does this issue continue to be politically significant with the election of governments? Have public attitudes altered towards poor governance in EU states subject to the imposition of stringent fiscal rules related to ‘bail outs’ as standards of living begin to fall, unemployment rise and welfare provision is withdrawn? 

 Methodological issues: These might include the difficulty of gathering data on corruption, varying definitions of ‘corruption’, and issues around reliance on quantitative data (such as evaluations of public perceptions of levels of corruption, or the number of legal prosecutions brought against people for involvement in corrupt practices).