Courts, culture and corruption
Life as a judge Within the legal-culture perspective, judicial corruption is a distinct form of behaviour that arises at the interface between what sociologists call the ‘internal legal culture’, shared by the legal professionals, and the ‘external legal culture’ – the culture generated by the general public.4 Analytically the two spheres of judiciary and society are quite distinct, but in practice they are so closely intertwined that it is not possible to draw a clear line between them. On the one hand, judges in every country are public figures. Their pronouncements, decisions and conduct are widely reported and commented upon, with the result that they have an influence both on the way ordinary people think about law, and also how they deal with it. On the other hand, to the extent that judges are members of society like everyone else (whether or not that claim is disingenuous) they must live within the external culture and share it with the public. They cannot avoid being tied into a network of relationships at every level from the personal to the societal. They have to be responsive to the demands of the external legal culture or face the alternative of becoming misfits, even outcasts. But the judicial hat is radically different from the citizen’s hat. As a professional group, judges are given authority to apply the law and in some traditions also to develop it. That is a considerable responsibility and it helps to analyse judges as a specific unit that is characterised by the strength of the group’s identity in relation to its members; the distance it has created between itself and the rest of the society; the self-created interpretation of its role in society; and the code of conduct exercised by the group in relation to each of its members. Whichever country they live in, judges behave like judges; for that reason each internal legal culture resembles all others to some extent. But the cultures also diverge from one another, and it is the differences between each judicial culture that yield clues to the variation in rates of corruption around the world. The importance of this cultural differentiation and its implications for the propensity of a judge to use public office for private gain can be illustrated by a brief comparison of the English and continental European judicial cultures. In England, law was introduced as a protective device against the sovereign. Its foundation was a set of restrictions imposed by parliament and landowners upon the king to curb his power; in other words, a minority of highly privileged people chose to use law to help them retain, and if possible extend, their property and privileges.5 This positioned the law as an independent institution capable of confronting the state, distancing itself both from the everyday politics of governance and the petty concerns of the public. The subsequent role of judges in building
4 On the distinction between internal and external legal cultures, see L. M. Friedman, The Republic of Choice: Law, Authority and Culture (Cambridge, MA: Harvard University Press, 1990). As a separation of the set of those members of society who perform special legal tasks from the set made up of all other citizens, it is an important analytical device within the legal-culture perspective. Although it is true that each entity has a complex structure, internal legal culture can be seen as a combination of the sub-cultures of prosecutors, lawyers in business firms, judges etc.; and the external legal culture as consisting of the sub-cultures of poor and rich, black and white, young and old, political elite and electorate, etc. 5 Daniel Treisman, ‘The Causes of Corruption: A Cross-National Study’, Journal of Public Economics 76 (2000).
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