TACKLING CORRUPTION IN WESTERN AND RUSSIAN LEGAL CULTURES.

• Author: Saar, Juri

1. Introduction

   Corruption as a type of criminal activity exercised by power-yielding persons has been a topic in criminology since the mid-twentieth century and dubbed white-collar crime (Sutherland 1940, 1949). Over time, the intertwining of political and economic power and crime has attracted ever more attention and has gained even notoriety, but it was only at the end of the 20th century, seconded by growing problems in legitimacy of nation-states and intensive globalising, that the focusing on corruption reached its apex. That phenomenon became more relevant than just one type of crime amongst many. The extent of corruption in the society was assigned the role of an applicable indicator of human development, and by now a general attitude is being formed a la "Tell me how you take a stand to corruption and I'll tell you who you are".

   A symptomatic step was the founding of the international NGO Transparency International, where transparency of operation of power mechanisms has been set on top of the value scale (Transparency International 2019b). Upon the initiative of that organisation, in 1995 the Corruption Perception Index was created as a composite indicator for the rating of states. The main idea for use of CPI was the assumption that estimating the real level of corruption on the basis of criminal statistics merely yields a biased picture of the actual spread of corruption. For instance, under official statistics of totalitarian states, corruption as crime may be altogether non-existent, while in the countries seriously engaged in handling the cases of corruption the number of such crimes may sore to heights, although the actual level of corruption may be lower.

   To overcome that problem an instrument was developed, whereby each year countries are scored on how corrupt their public sectors are seen to be, assessing how perceptible corruptive conduct is in different countries, independent of how rarely or how frequently punishment is levelled for corruption crime in a given country. The CPI captures the informed views of analysts, business people and independent experts.

   But some important questions linked to the corruption as a phenomenon, primarily those related to inter-societal and intercultural differences in corruptive practices, are still begging an answer. The reason is variation of value backgrounds of tackling corruption in different legal cultures, so much so that the behavioural pattern, appreciated in one legal culture as a regular, recommended and even noble conduct is qualified in another legal culture as the most blatant abuse of power. Therefore, it is evident in the increasingly globalising world, that the surveys must appreciate and highlight those cultural differences and value backgrounds, related to recognition, estimation and control of corruption in various cultural environments.

   In this article we tried to scrutinize, how the use of political power is revealed as a social norm and (or) pathology in two different legal cultures--Western and Russian. Viewed from the most general aspect, legal culture describes ideas, values, expectations and mentalities related to legal sphere. The question, why some codes of conduct, which have been defined as corruptive and are discouraged in the Western world, are not defined as such in the Russian tradition, is still outstanding and needs a sensible answer. It is important especially in view of the striking decline of global effect of Western values and those stemming from it, in recent decades, and transformation of the world from singular polarity or bipolarity growingly into multi-polarity. It means that we will be increasingly faced with phenomena, which are appraised differently in different (legal) cultures, with corruption as the use and (or) abuse of power being one of the most central among them.

2. Is it possible to find a 'suitable amount' of corruption?

   According to the traditional view the crime resembles 'social junk', a societal pathology that can be treated by means of active measures. If crime is really an undesirable by-product of social life the main rule is simple--the less crime and the fewer criminals the better. If in fact crime is a sickness, punishment is the cure for it and cannot be conceived of otherwise; thus all discussion revolves around knowing what the punishment should be to fulfil its role as a remedy. There is no such thing as suitable amount of crime in principle and consequently, the same is valid in connection with the proper level or amount of corruption.

   The paradigm established by Emile Durkheim was opposing the above-named view. In his studies, Durkheim posited, social science would be able to determine whether a given society is 'healthy' or 'pathological', and seek social reform to negate organic breakdown or 'social anomie'. All behavioural acts (e.g. suicide, criminal offence) committed at individual level randomly (via 'free will') are at the level of society social facts sui generis characterising the state of social organism in indicative way (Durkheim 2013: 186-187). He believed that, "A social fact is normal for a given social type, viewed at a given phase of its development, when it occurs in the average society of that species, considered at the corresponding phase of its evolution" (Durkheim 1982: 97).

   Durkheim proposed a novel theoretical view to the precise amount of crime and other social deviations at the optimal level, which should be a normal phenomenon. A lower level of crime indicates the stage of stagnation in the society, and a higher level belongs to the state of social disorganisation. Durkheim developed a new and totally different view to the criminal too "the criminal no longer appears as an utterly unsociable creature, a sort of parasitic element, a foreign, unassimilable body introduced into the bosom of society. He plays a normal and important role in social life" (Durkheim 1982: 102).

   According to a proposed approach, crime including corruption can be treated as inherent in cultural phenomena (Saar 2017). We believe that different legal cultures produce different definitions of acceptable and meretricious behaviour. Through law enforcement a certain social reality is formed, because controlling crime not only secures public order, but creates a certain socio-cultural environment on a day-to-day basis. Therefore, crime control is a crucial issue as seen from the nation-building and political-technology aspects, because the criminal justice system is related to cultural self-assertion. In principle, it is possible to draw a criminal law proceeding from which crime level and specificity by type is preferable and how many members of society one 'wishes' to treat as criminals.

   What the criminal justice system and its parts (e.g. police, courts, prisons) of a given state look like, and how they function is established by the legal culture, proceeding from dominating conceptions, respected in that society and considered normal and equitable. The unbroken chain of crime and punishment is a steady process. The study of the mechanism of such collision between legal principles and people's behaviour, whether overt or covert, is extremely instructive and it reveals to us the very nature of the social fabric in a concrete society. The main task of the interpretative approach in criminology is finding out how the social order manifests itself through construction of crime and crime control.

   The interpretative approach here owes a lot to Leo Frobenius and Adda Bozeman's ideas about the importance "to identify the configuration of each active culture and political system as authentically as possible" (Bozeman 1971: 33). Leo Frobenius named this entity paideuma and tried to create a method to see its paideumic structure through the so-called debris of a civilization (Frobenius 1928). He assumed that every human culture is a kind of organism, and that this means that a culture is not a mere accumulation of phenomena, but the manifestation of one of its environment and its education and coined feelings of life. Therefore, each culture has a unique style characterized by a certain mentality. Frobenius wanted to describe a Gestalt, a manner of creating meaning (Sinnstiftung), that was typical of certain culture (Frobenius 1921).

   Identification of behaviour as crime and the rules of handling the incidents in respective way are in concord with historical, social and cultural conditions. In one country the wife having deceived her husband is stoned to death, in another country the spouse of the fornicating or adulterous wife is awarded the title of 'cuckold'. By reference to such drastic difference in manners of reaction, diametrically different cultural backgrounds of two countries can be inferred, manifested by different values ascribed to people of different gender, to difference in family patterns, to defining of the crimes, to divergence of practice of penalising etc. Moreover,'faithfulness and faithlessness' carry different implications in different cultural environments.

   As the theoretical basis for the tackling of corruption as a cultural phenomenon, the meaning of which varies by legal cultures, can be used the systems theory proposed by Niklas Luhmann. According to the systems theory the societies belong among autopoietic (1) systems and they can be considered as complex entities, able to adapt, using internal feedback processes, to change their internal structures, to better survive and reproduce themselves in a turbulent and changing environment. It means that every society is an operationally closed integral entity, self-referring and continually self-reproducing.

   A society confines itself from the external environment, for one society the other societies being external environments. From the point of view of maintaining every system the pivotal procedure is reducing complexity, the involuted character of the environment. Law as the societal subsystem selects from...