5 Slovenian l Rev 11

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SLOVENIAN LEGAL CULTURE

Albin Iglicar*

i. The Concept of Culture

T he concept of legal culture is placed in the wider understanding of culture in general.Defining culture is possible first in:

a) the widest (anthropological) sense, when by the concept of culture we designate everything inthe world that is the consequence of man's activity and/or everything that is not already givenby the nature.' In this context, we often differentiate between material and spiritual culture,where the first one encompasses material objects, made by man, and the other the ideal worldof values, thoughts, views, and norms. Some people add to this also the concept of socialculture as the area of human relations.2

From this distinction is derived the very frequently used

b) concept of culture midway between the widest and the narrowest understanding, that is whenwe use it to denominate areas of human spiritual creativity and/or the so-called special formof social consciousness, from religion, values, and norms, through philosophy, ideology, andscience, to various areas of art.

Full Professor, University of Ljubljana Faculty of Law.

In this sense e.g. Slovenski emolodki leksikon (the Slovenian Ethnological Lexicon) defines culture as "a set of achieve-

ments and values of the human society" Mladinska knjiga, Ljubljana 2007, p. 265; Slovar slovenskega knjiinega jezika

(the Dictionary of the Slovenian literary language) uses for culture the antique expression ,,omika,, (SSKJ, DZS 2000,

p. 769).

The word culture is derived from the Latin verb "colere", which means to cultivate, grow, dwell, and also protect and

worship. Already in the period from 1920 to 1950 we meet more than 15O proposals for the definition of the concept

of culture (Zimmermann, 2007, 62: 657).

"In the framework of social culture ethnologists have studied various ways and customs as well as popular legal views; see

Slovenski emololki leksikon (the Slovenian Ethnological Lexicon), p. ioi.

HeinOnline -- 5 Slovenian L. Rev. 11 2008

SLOVENLAN LAW REVIEW

Finally, it is also possible to find

c) a very narrow definition of culture that uses this word as a synonym for art. Such an under-standing is fairly frequent in the everyday colloquial language and also in official political ac-tivities.

3

The starting point for the sociological view on culture is the classical Taylor's definition of cultureas civilisation encompassing s... knowledge, religion, art, law, customs, and all other abilities andhabits an individual acquires as member of the societyo.4 When reading the quoted definition,we should be wary of the components of culture, among which the author explicitly indudesalso law. In this sense it is necessary to understand the interpretation of culture as a communityof all ways of thinking and behaviour man has been acquiring through symbols in contact withother people (Goriar, 1975: 45). In the system of social relations, communication among peopleis going on through language and other symbols. This specific human worlds begins withprocesses of socialisation,6 the content of which is in the very adoption of culture and/or thewhole social entity as cultural heritage, transmitted from one generation to another. Therefore,American sociology in particular stresses in culture the human behaviour, the system of beliefsand ideology;7 passing from generation to generation. This is true of religion, philosophy, science,and art, as well as of everyday life habits, political practice and systems of values and norms.

In this sense, culture appears as a collection of social institutions of a global society (Rehbinder,2000:42). These institutions appear at the abstract (theoretical) level as entities and/or as systemsof values and relations, inside of which we satisfy human needs in a socially recognised and pro-tected way. The modern theory of systems would mark institutions as special subsystems insidethe entire social system.8 Functional classification arranges the most important institutions asfamily and relatives, economic, educational, political, cultural, religious, and recreational insti-tutions (Gori~ar, 1975:18 i). Social institutions, reflecting general characteristics of a global so-ciety, stabilise patterns of behaviour and actions and thus facilitate integration of individualsinto the society in the processes of their socialisation.9

3 E.g. the Slovenian Ministry of Culture is competent almost exclusively for various fields of art only and not e.g. forscience or other areas.

4 The mentioned definition is further explained in Singer's article in the International Encyclopaedia of the Social Sciences,The Macmillan Company & The Free Press, Vol. 3 1968, p. 527.

1 Hence the definition "...that culture is actually all that makes man different from animals." (Goriar, 1975: 61).'Therefore we often call such social activities enculturation processes.7 Oxford Dictionary of Sociology Gordon Marshall, Oxford University Press, 1998.1 Broader on system theory in Luhmann Niklas: Soziale Systeme (7. Aull.), Suhrkamp, Fmnkfut am Main, 1999.9 This activity belongs with the so-called general functions of social institutions, among which we consider to belong also

their function of social control and the function of holding back social changes (Gori&ar, 1975: 179).

12



Therefore the functionalistic theory singles out in particular some social functions of culture.' °

Together with dominating nature and gathering information, culture is a means of communi-cation among people and a protector of man against unpleasant changes and external influences.Besides this, the process of giving sense to human life, to socialise man and to personalise him isgoing on in the cultural world. From the legal point of view, the normative function of cultureis particularly important because of decreasing disorder, chance and imbalance in life and/or be-cause of increasing security and organisation of social surroundings. In this sense the systemstheory also belongs with the elements of the cultural system of value, ideology, belief, and norm."

By norms we must understand all social rules, from moral and custom norms through traditionand rituals to rules of good manners, fashion and professional rules in various areas and of coursealso legal norms. All kinds of norms direct man's social actions and represent the framework forestablishing relations between people. A special place among social norms is held by legal normswhich are of vital importance for the shaping of the legal culture.

2. The concept of legal culture

Legal culture is an aggregate concept. Its elements are ideas, expectations, evaluations and attitudespeople have on the legal system and their actions regarding the legal system in a global society(Friedman, 1977: 76). Therefore by the concept of legal culture, sociology of law understandsan empirically researched social phenomenon, which includes legally defined ideas on values,norms, institutions, rules of procedure and modes of behaviour (Raiser, 2007: 311). Legal cultureis composed of behaviours, values and attitudes existing in the society regarding law, legal systemand its various parts (Cotterrell, 2006: 83). Hence it follows that legal culture is composed of anideal and a real part of this phenomenon.

The ideal part of legal culture encompasses: ideas, evaluations, expectations of and opinions onlegal norms and institutions. The actual part of legal culture contains behaviour of people re-garding the legal system, attitudes and habits. When forming legal culture it is possible - accordingto Friedmann (Friedmann, 199o) - to differentiate between legal culture, emerging as a conse-quence of the demands made by members of the global society to the legal system (exteriorand/or general legal culture) and legal culture, formed as a result of the advance formation oflegal institutions and their fimctioning (internal and/or professional legal culture).

A holistic view of legal culture must of course encompass both sides of the discussed phenomenon,their interactions and intertwining of both elements of legal culture. When actually establishingsocial relations, both parts of legal culture are in operation. In the analytic and/or research phase

o More in Haralambos M. and Holborn M.: Sociology- Themes and Views, DZS, Ljubljana 1999, pp. 11-15.

" "This means that social system is pervaded with common values from its most general level - the central system of

values - to the most specific one - the normative behaviour." (Haralambos, 1999: 88o).

'3


SLOVENIAN LAW REVIEW

of studying legal culture, however, both elements may be differentiated, but upon concludingsynthetic presentations it is again necessary to consider the totality in origins and effects of thelegal culture.

For a general picture of the legal culture in a concrete global society its quantitative aspect is alsoimportant. Therefore, it is possible to maintain that the general designation of legal cultureexposes views on and definitions of legal values and norms of the majority of members of theglobal society as well as modes of their actual establishing legal relations in the real (physical)world.

Leg culture is also a part of general culture since law is present in everyday real life as the so-called cultural fact (Uakar, 2oo6, 3: 61). Philosophy of law stresses the assertion that law is acultural concept (Radbruch, 2007: 63). In this sense, law is part of man's world of ideas and hisspiritual creativity,'12 which is then reflected in the material (physical) world as a certain behaviourof people and their organisations. Therefore we often meet emphases on great significance of thelegal culture for the formation of personality and assertions, that lack of legal culture causes im-perfections in the personal structure of individuals (Rehbinder, 20oo: 137). Legal alienation isthus decisive for deficiencies in the process of socialisation. In these processes of integration ofindividuals in the society through learning social roles, legal performances are indispensable ele-ments of the directors and motivators of man's social activity. In connection with this, we meetstandpoints exposing this activity in settling disputes.'3

As the whole of social institutions - in the sense of general culture - reflects characteristics of acertain global society, so also the legal culture reflects circumstances in this society. Therefore, itis necessary to speak today of the diversity of legal cultures, of their pluralism as the consequenceof the fact that every people, every country and/or every nation have their own legal culture(Friedman, 1977). Socio-legal studies, for instance, stress the differences in legal culture of theEast and West. While the legal concepts of the Eastern civilisation originate in harmony,14 theWestern ones are more prone to the fight for law.' 5 While in the Japanese legal culture, for in-stance, it is so-to-say shameful to settle disputes in court, in the US this is considered perfectlynormal (Rehbinder, 2000: 175). Besides this, a pluralistic view on legal culture exposes its com-plexity inside a certain legal society. Therefore numerous economic, political, interest and classdeterminants influence legal culture. Well known are the findings that legal culture transforms

"Therefore Dr. Anton Zun (1917 - 1978), professor at the Faculty of Arts in Ljubljana, considered also the scientificdiscipline, which studies social relations regulated by law, i.e. the sociology of law, to be a part of the sociology ofculture. In this connection we often meet the assertion "that law is actually a cultural phenomenon in the sense of aconstitutive element or manifestation of a specific culture." (Zimmermann, 2007, 63: 66o).

"The definition of legal culture by B. M. Zupani is: "Legal culture is thus a mixture of values concerning behaviourof people, juristic persons, and legal institutions in disputes and in potentially controversial (dispute generating) situa-tions." (Zupan~i6, 1995: 35).

,4 E.g. Confucianism.

'5 E.g. Ihering, Fight for Law (Kampf ums Recht).



interests into legal claims and/or that on protecting certain interests, legal culture appears as ashaper of legal claims (Cotterrell, 2006: 87).

Interests appear as a reflection of human needs. The needs originate in the civil society and are -to a great extent under the influence of the general and legal culture - transformed in the politicalsociety into interests. In the political sphere, interests then motivate human actions, and not onlythose directly oriented to satisfi, everyday current needs, but also system and/or institutional so-lutions (Habermas, 1975: 241). Here, an important role is played by the legal ideology, whichin connection with the legal doctrine also establishes a connection with the social power andwith the prevailing stream of thinking and beliefs (Cotterrell, 2oo6: 90). The content of legalideology originates in legal culture of a global society in the sense of prevailing patterns of behav-iour,' 6 values and opinions on normative legal claims.

Besides this, differences and also contrasts appear in the legal culture of various social classes, re-garding e.g. social status, profession, age, etc.I7 The social status of individuals has a strong influ-ence on the subjective comprehension of the legal sphere of global society and also on their actualbehaviour and actions. Therefore, it is often useful to differentiate between the so-called internal(intemalised) and external (outwardly expressed) legal culture. In the first instance, we speak ofunderstanding of legal values and norms by legal subjects, while in the latter we refer to the ex-pectations of their surroundings on how they will act in legal relations.

Differences in legal cultures also depend on the various legal systems. In this sense, we speak ofthe so-called legal families or great legal systems'8 as Roman-German or Anglo-Saxon legal circle,the legal systems of the Far East, etc. Belonging to a legal system has an impact on the variouspatterns of the legal culture.' Such pluralism of legal cultures, however, is nowadays changingto legal universalism (Raiser, 2007: 317) because of the globalising processes in the area of eco-nomic integration of the world, its political reconciliation, and the general cultural unification.This is often expressed in the processes of reception of a certain legal order, when legal culture ofthe state, which has received the "imported" legal order, is changing, and at the same time alsothe received legal order is partially changed due to the existent legal culture in the state which

16 In English: pattern of social action.

17 For the circumstances in the US, for instance, Friedman finds existence of differences between the legal culture of the

rich and the poor, workers in ironworks and accountants, negroes, whites, and Asians, men, women, and children, etc.

(Friedmann, 1990: 213).

"Differences and similarities of various legal systems are studied in more detail by the comparative legal science, e.g.:

David, Grasman: Introduction to Great Modem Legal Systems (Uvod v velike sodobne pravne sisteme), I in II, Cankar-

jeva zaloiba, Ljubljana 1998.

'9This is e.g. illustrated by the finding of the Judge Marko Ilegi of the European Court ofJustice: "Different legal cultures

in the member countries often lead to differently formed and differently accepted written petitions and in particular

different appearing (also of judges) at trials." (Ilegi, 2oo8: 6).



has received foreign legal order of a definite set of social relations.'2 Strong integrative and/or as-similative processes result in the modem society doing away with differences between legal culturesas well as approximation and/or convergence of various legal systems. The mentioned operationcan clearly be seen in the processes of approximation of the European continental and Anglo-Saxon legal systems within the European Union.'

Therefore also from the aspect of changes in the legal culture as a consequence of changes in thesocial structure we find some tendencies of development, common to all global societies in mod-ern times. This is foremost the tendency for uniformity of law, both in the regional and substan-tive as well as the personal aspect. Such changes are first of all the consequence of enlargementof global societies and intense doing away with disparities in the intrinsic sets of social relations.Further on some theorists stress in particular a sort of socialisation of law, where a more and moreimportant position is given to the norms on protection of workers, consumers, environment,and provisions on social security and rules about equal opportunities (Rehbinder, 2000: 86).This is of course a reflection of the enlargement of that part of the legal system which is deter-mined by the general social interests at the expense of the part determined by special interests ofonly some classes and layers of society.

In almost all modem legal systems it is possible to find tendencies of a constant spreading of legalorder and/or constant enhancement of the scope of legal acts and legal norms, which is a conse-quence of the growing complexity and organisation of social life, progress of science, and desire ofpeople for predictability in establishing social relations, arising from people's need for safety. Thetendency towards bureaucratisation and specialisation of legal processes - arising from the growingrationality in the society- is added thereto. From the said conditions springs also the tendency foran ever greater professionalism of the legal system, its intrinsic scientific bases together with thedemands for legitimacy and efficiency of the legal system (Rehbinder, 2000: 115).

The mentioned common traits in the legal culture of modem global societies are reflected inpeople's conceptions and opinions of legal institutions as well as in their actual behaviour andactions. Oudets of mass media that decisively shape public opinion and thus also people's con-ceptions of legal phenomena by describing and showing legal processes, presenting standpointsand opinions" have a decisive impact on both elements of the legal culture. Standpoints, opin-ions, and expectations of people about the course of legal processes are important in the sense ofdiscussions of individuals in the society about certain common matters.

E.g.: transplantation of German law to Japan and also of .European. law to Slovenia before the Slovenian accession tothe European Union.

" E.g.: equalising the significance of law (as the main formal legal source in the continental system) and judgement (asthe main legal source in Anglo-Saxon system) in the legal system of the European Union.

" E.g.: DELO - Mnenja (Opinions) - Gostujo6e pero (Guest pen) - Kekeljevie finds for Slovenian conditions: "By pri-mary accumulation the deficient functioning of the state governed by the rule of law enabled the origin of a quasi-en-trepreneurial elite..." (12.2. 2oo8).



This public opinion primarily concerns the general legal culture, which encompasses legal prin-ciples and legal behaviour of all members of the global society. We should single out of the generallegal culture the professional legal culture, i.e. legal principles and legal behaviour of professionallawyers.

3. Public opinion aspect of the Slovenian legal culture

Sociological researches establish the public opinion aspects of legal socialisation and legal culture,usually first through public opinion polls on trust in legal institutions and then by observing anddescribing actual social functioning of legal subjects. The trust in institutions and a general ac-quaintance with the legal system is a starting-point part of the legal culture.

Trust in institutions as part of the legal culture points also to an internalisation of legal valuesand norms. Besides this, the degree of trust in the institutions of the legal and political systemsalso points to their legitimacy. The higher the expressed public support for the institutions, thehigher the legitimacy of the legal and political systems.

The public opinion aspect of the legal culture as shown by public opinion polls in Slovenia inthe last decade of the 2oth century is rather disagreeable. We can see that in comparison with se-lected European countries, trust put in the legal system in Slovenia is among the lowest.

The percentage of answers "I trust very much" and "I have trust in the legal system" at the endof the 2oth century in selected countries was as follows (Kaase - Newton -Tog, 1999: 239):

Germany 65Netherlands 63France 58Sweden 56Slovenia 50Italy 32

From the table above, we can see that in the selected countries only in Italy the trust in the legalsystem was lower than in Slovenia. The trend of falling trust in the legal system is also worrying.Thus e.g. the percentage of trust in the legal system in 1992 was 50%, while in 1995 it was only34 % (ibid).

Besides this, according to the Slovenian public opinion polls conducted at the end of the 20thcentury regarding the degree of trust, the legal system only came 7th among the ten selected in-stitutions. This is illustrated by the following table showing the percentage of answers "completelytrust" and "trust" (ibid):



System of education 72

Police 46Army 43Press 42

Church 37Big companies 37Legal system 34 (!)Public services 27

Parliament 24

Syndicates 23

The respondents had greater trust not only in the educational institutions but even in the police,the army and the press than in the legal system. Only public services, syndicates and the parlia-ment enjoyed lower levels of trust than the legal system. The low degree of trust in the legalsystem is a reflection of objective happenings in the slow upgrading of the legal system in the in-dependent Slovenian state, its inconsistence and bad functioning of the institutions, whereprocesses of adopting general legal norms and processes of social control of their implementationand legal solving of conflicts is going on.

In Europe, the average trust in the legal system was 64 % at the end of last century, while inSlovenia in this period only 44 % of people said they trusted the legal system.23

Slovenia distinctly diverges downwards from European averages regarding trust in the legal sys-tem also in the following years (Tog, 2007: 372).

At the beginning of the 21St century, European sociological studies found the degree of trust inthe legal system on the scale from o to io. The results obtained show great differences in expressingtrust in the legal system between the so-called old and new democracies. The position of the se-lected states on the scale of trust in the legal system is as follows:24

23 Report on human development, UMAR (Urad za makroekonornske analize in razvoj - (Office for MacroeconomicAnalyses and Development), Ljubljana 2oo2.

14 Data collection SJM (Slovenian public opinion), CJMMK (Public Opinion and Mass Communication Research Cen-tre), FDV (Faculty of Social Sciences), Ljubljana.


SLOVENLN LEGAL CULTURE

Denmark 7.13

Finland 6.75Norway 6.35Slovenia 4.28

Czech Republic 3.8 1

Poland 3.68

The falling trust of people in political and legal institutions springs from unfufiled expectations,formed in Slovenia at the beginning of the nineties. The optimism of the time and faith in thelegal system were in fact probably too idealistically conceived; nevertheless, their bad work andgreater stress given by the media to the weak performance of these institutions also contribute tothe falling of trust in classical institutions of the state.

So e.g. the general impression of the public opinion on the performance of Parliament and/orState council is conditioned by the idea that Slovenian Parliament is more a place of quarrels andconflicts of the political parties than a place of tolerant harmonisation of various interests andlooking for true common national interests. That is why in such a representative body, legislativeprocedures last unnecessarily long, the content of the adopted laws is the result of bad short-termcompromises and of the voting machine of the parliamentary majority. If then the Parliamentalso changes and amends a lot of laws soon after their adoption and the Constitutional Courtannuls them, it is understandable that the reputation of the Parliament is very low, as is the trustof the public in the processes of shaping of the legal system. Such a perception of the legislativeactivity in the public opinion lowers the general legal culture and brings in social relations legalrelativism, when respect of laws is conditioned by chances and often hindered by contrary interests(Buait, 1998: 102).

The deciding body of the legislative power in Slovenia has experienced considerable oscillationsregarding people's trust in its work. This is shown in yearly sections from the study on the Sloven-ian public opinion (the share of answers of the respondents on trust in the work of the NationalAssembly "trust is great" and "trust is considerable" expressed in percentage points):25

15 Study of Slovenian Public Opinion 1991 - 2006, CJMMK (Public Opinion and Mass Communication Research Cen-tre), FDV (Faculty of Social Sciences).



1991 33.61994 15.01996 11.2

1998 9.12001 17.7

2003 21.5

2oo6 16.8

With the average of 16.9%, the level of trust in the Slovenian legislator lags the other two branchesof government almost by half, which is evident from the following data.The median values of measurements of trust in the institutions of the State in the period of 15years from 1991 to 2oo6 amounted to:26

Courts 32.6Government 30.National Assembly 16.9

In the Slovenian legal consciousness, the opinion on the functioning of Slovenia as a state gov-erned by the rule of law has also been changing. In this part of the legal culture, we may perceivea certain positive trend. To the poll question "Is Slovenia a state governed by the rule of law?" theshare of positive answers has increased over a span of four years, which shows the following table(in percents):

The order of answers, particularly at the beginning of the 21St century, shows considerable un-certainty of the respondents in feeling and/or subjective perception of the functioning of the ruleof law.2

1 Such opinions and standpoints of the citizens coincide with the findings of the studieson political culture which state that in Slovenia half of the inhabitants prefer democracy, while

211 Study ofSJM (Slovenian Public Opinion) 199 -2006; CJMMK (Public Opinion and Mass Communication ResearchCentre), FDV (Faculty of Social Sciences).

17 Delo, Stik (Contact), research in February 2oo8."' Mediana telephone research in 2003.'9 Reports of DELO in February 2008.



the other half express apathy towards functioning of the state and its structure (Kolenc, 2006:785). In his reports, however, the ombudsman still finds a decrease of trust in the functioning ofthe rule of law in Slovenia. 29

Regarding trust - as already stated - the legislator, i.e. the National Assembly, constantly comeslast among the Slovenian state institutions. Regarding the degree of trust in 2006 the centralstate authorities, representing the three branches of government, were ranked as follows (thetotal of answers "the trust is great" and "the trust is considerable" is given in %):3°

Courts 37.5

Government 29.9

National Assembly 16.8

At the end of nineties, the trust in the courts in some European countries (percentage) was rankedby an international research study as follows (Tog, Bernik 2002):

Czech Republic 34%

Slovakia 39%

Hungary 43%

Poland 38 %

Slovenia 43 %

Germany 50%

Austria 60o

In spite of the - mostly - completed processes of transition and the membership of Slovenia inthe European Union towards the end of the first decade of the 21st century, the Slovenian courtsare still in the lower half of the scale of trust regarding some other social institutions in Sloveniaas evident from the following table of trust, measured on the scale from i to 4:3'

W0 Study ofSJM (Slovenian Public Opinion), 2oo6, CJMMK (Public Opinion and Mass Communication Research Cen-

tre), FDV (Faculty of Social Sciences).3' Slovenian public opinion 2007, Institut za druibene vede (Institute for Social Sciences, FDV (Faculty of Social Sciences),

Ljubljana.



Family 3.7Educational institutions 2.9Euro 2.7

Slovenian army 2.6Ombudsman 2.5

Police 2.4

Humanitarian organisations 2.3

President of the Republic 2.3

Mass media 2.2

Government of the RS 2.2

Courts 2.2

National Assembly 2.1

Church 1.9Security and Intelligence Service 1.8

So among the generally very low degree of trust in the political and legal institutions the courts- as explicitly legal institutions - have the best place. Besides this, it is possible to point to the in-teresting contradiction, namely to the fact that in spite of the low degree of confidence in thecourts the people in Slovenia try to solve more and more disputes in court, since more and morecases are brought before the court every year.32 In the general legal culture, the feeling was thatgoing to court is "utima ratio" and/or extreme means of settling mutual conflicts. Together witha general decrease of tolerance in social relations extrajudicial ways of settling disputes, from me-diations to conciliation and arbitration procedures, are applied far too little in the cases of con-flicts.

Inside the answers on trust in courts among the people polled, more often than on average youngpeople as well as the retired population, people with university education and members of middleand upper classes as well as respondents on the political right have trust in the courts. The lowestdegree of trust in courts is shown by the polled members of lower classes and left-oriented re-spondents (Tog, 2007: 384).

While studying the trust of Slovenian citizens in the institutions of the political and legal systems,we find explicit oscillation in the long-term average and/or longitudinal study. This holds true

31 Charges entering the courts in the Republic ofSlovenia: 2004: 627 638, 2005:755.o68, 2oo6: 803.955, 2007: 748.984charges (Vrhovno sodike RS (The Supreme Court of RS), Sluiba za razvoj sodne uprave (Office for Development ofJudicial Administration), Ljubljana 2oo8).



also about the courts. In the period from 1991 to 2oo6 we can find the following percents of

trust in the courts in individual years: 33

'991 34.71994 26.2

1996 24.3

1998 33-2

2001 41.7

2003 34.9

2006 37.5

Average i99i - 2oo6 32.6

In the judiciary critical phenomena culminated in mid-nineties. This was reflected in the publicopinion as a fall of trust in judicial institutions from one third to merely one quarter share of re-spondents. Public opinion has thus fairly accurately reflected objective events in the judiciary, asat the end of the nineties - after the stabilisation of the judicial system - the share of poll answersstating complete or fair trust in the judiciary came back closer to one third. At the beginning ofthe new century the percentage of trust placed in the judiciary again fell under one fifth of all

the respondents. The transition from the political and property monism into political and prop-

erty pluralism demanded a reform of the judiciary, both in the organisational aspect and in the

value world of judges, in their professional legal culture. In the legal sphere, civil law relations

began to prevail over public law relations (Bu~ar, 1998: 136). At first, this caused delays in trying

judicial cases, which was very quickly reflected in standpoints on lower degree of trust in the ju-

diciary established by public opinion polls. Therefore faster solving of court cases, independenceof judges and their high professional competence quickly get a response in the public opinion

and in the general legal culture.

The very "right to a fair trial" can be placed among the basic elements of the legal culture, since

law is a kind of substitute for violent settlement of disputes among people (Zupan6i6, 1995: 30).In the legal consciousness, procedural rules are therefore of crucial importance while advancematerial rules for authoritative settling of disputes are of secondary importance. Both kinds of

rules serve the social value which appears in the legal culture as legal safety. The need for safety

requires the existence of legal rules and from this primary need, reflected in appropriate interests

for order in social relations, legal norms evolve.

33 Research ofSJM (Slovenian Public Opinion) 1991 - 2006; CJMMK, (Public Opinion and Mass Communication Re-

search Centre), FDV (Faculty of Social Sciences).



This general interest that requires certain stability and predictability in the social functioning ofindividuals and their organisations is often blurred by various partial interests of social strata andgroups. Therefore also understanding and comprehending of legal norms in the consciousnessof different strata of the society is different, and this results in segmentation of the legal culture.Decreasing differences between strata and decreasing class-division in modern global society to-gether with increasing and prevailing of the middle class, bring about the decrease of the saidsegmentation of the legal culture. In this way goes the formation of joint and unified values, legalprinciples acceptable for a considerable social majority.

4. Special traits of professional legal culture

In studying legal culture, a special place is consecrated to the professional legal culture, i.e. to theideas and actions of people professionally dealing with legal processes going on in legal institutions.At the end of last century, the importance of these institutions and legal professions increasedvery much in the so-called developed countries of Western democracy both quantiatively34 andin its impact on the course of public life. The main reason for the increasing importance of legalprofessional social roles originates in the fact of"panjuridisation" of social relations, as more andmore spheres of the society are subject to legal order. The growing scope of legal regulating orig-inates in the activities of social state and the increasing rationality and organised human com-munication.

The stated trends also spread across Slovenia, particularly after its independence, implementedtransition and accession to the European Union. A state's independence certainly increases thesignificance of law and the role of lawyers in the professional structure of the global society. Afterall, this was also affected by the constitutional legal emphases on Slovenia as a state governed bythe rule of law and social state. 35 The mentioned constitutional principles increased the signifi-cance of law and lawyers. This resulted in greater role of legal values and legal culture both in thepolitical state and in the civil society. In these circumstances, it was the professional legal culturethat made an extremely important impact on and so-to-say a frame of reference for the generallegal culture.

This means that the society watches lawyers very closely and critically evaluates them, and at thesame time acknowledges their fairly high social status. So e.g. sociologists find strong influenceof lawyers on public life and high social reputation of this profession in Germany. According topublic opinion polls, lawyers are at the very top of professional prestige. Only doctors and some-times - in old German provinces - priests come before them (Raiser, 2007:3 36). Similar findings

14 From the sixties of the 2oth century to the beginning of the 21st century the number of lawyers more than doubled inFederal Republic of Germany, so that at the outset of the 21St century their number amounted to about 2ooo oo. 15% were in courts and in the public prosecutor's office; almost 50 % were practising lawyers, 25 % in the state adminis-tration, and I o% in economy (Raiser, 2007: 336).

35 Article 2 of the Constitution of the Republic of Slovenia.



hold true for Slovenia, as e.g. at the end of the 2ist century the total of answers in the Slovenianpublic opinion 36 I value "highly' and "very highly" the said profession can be placed in the fol-lowing rank order:

doctor 90.7professor 78.2

lawyer 66.6engineer 63.4economist 62.5police inspector 53.1military officer 51.8painter 39.2

The presented scale shows that legal profession is placed very high and/or that it is at the verytop of the status-related ranking of professional social roles. If we add to this the informationthat lawyers constitute i% of all employed people, it is an additional emphasis bringing out theimportance of the function of lawyers in defining the content of legal culture. Inside the legalprofessional stratum the position of judges, who enforce the rule of law in democratic society, isparticularly exposed (Barak, 2oo6: 56). By interpreting general legal norms they decrease the ten-sion between the necessary static state of the legal system and the dynamic state of social life.

We can find a very similar situation in most highly developed industrial states of the Western cul-tural cirde 37 where the traditional mentality, that regulating and settling disputes is the task of thelegal institutions of the state, prevails. The agents of such thinking should be sought in the political,economic, cultural and legal circumstances of modem continental Europe. Evaluation of the in-dicated circumstances can go in a positive or in a negative direction - in other words, it can meana developed legal culture or its reduction to a series of bureaucratic procedures38.

A lot of explaining and persuading, both in the early processes of socialization of growing up ofindividuals and in the later processes of communication among adults, will be necessary for thebroadening and consolidation of professionally established and maintained legal values in the

36 "How do you personally value the following professions...Evaluate on the scale from i to o, where I means that you

have very low esteem for this profession and so that you have a very high esteem for this profession...", Toi N. (editor),

Vrednote v prehodu (Values in transition) III, Slovensko javno mnenje (Slovenian public opinion) 1999 -2oo4, Ljubljana

2004, p. 530.37 An exception is certainly the United Kingdom, where the number of judges is considerably smaller, compared to e.g.

Germany. So that, at the beginning of the ISst century, there were 2 5 judges per oo ooo inhabitants in Germany and

only 2,5 per ioo ooo inhabitants in Great Britain (European Judicial Systems, Edition 2oo6; Data 2004).3' Example: Raiser (2007): "...als Zeichen hoher Rechtskultur oder als Merkmal einer Biirokratisierung der Rechtspflege mit

allen ihren Nachteilen und Schwerffligkeiten." (p. 340).



general legal culture. On comparing general legal culture and legal culture of lawyers, we oftenfind characteristic differences or even clearly contrary views.

We can notice this already in the understanding of some original legal values, as for instance indealing with guilt in criminal justice. In the general legal culture, we encounter in individualcountries the following answers to the question as to what is better in the case of judicial error:to condemn an innocent person or to acquit a guilty person (Igliar, 1997: 221):

To condemn an innocent person To acquit a guilty person

Australia 77.1 22.9

Germany 85.3 14.7

Great Britain 76.7 23.3USA 75.2 24.8

Italy 82.0 i8.oSlovenia 84.1 15.8

This picture is of course contrary to the professional legal interpretation that it is better to acquitnine guilty persons than to condemn one innocent. In the light of the presented answers and thementioned saying it will obviously be necessary to establish a certain "correspondence" betweenthe general and professional legal culture, since students of law already range their answers quitedifferently. That this consciousness is beginning to be formed already in the course of professionallegal socialisation is shown by the comparison of the answers of the so-called general public andstudents of the Faculty of Law (in Ljubljana) to one of the questions from the area of humanrights. To the question "Is it better to condemn an innocent person or to acquit a guilty one inthe case of judicial error?", the answers are as follows (Predani4, 1995: 28):

Slovenian public opinion Students of the faculty of law1995 2006 1995

condemn an 61,2 66,7 6, 5innocent person

acquit a guilty 18,9 15,4 90,9person

The presented opinions of the students of the faculty of law radically differ from the universalpublic opinion. The difference stems from the legal value and/or presumption of innocence andthe principle of"in dubio pro reo", which are firmly established in the professional legal culture.However, this is not (yet) true of the general legal culture in Slovenia, where this principle is not



yet established in the universal legal consciousness and this to a great extent due to the negativerelation of politics and media to the judiciary. 39

The progress of European processes of integration not only in the area of economics and societybut also in the area of values and culture may contribute much to the reconciliation of professionaland general legal culture. Particularly, when common values on which European Union is basedbecome - by inclusion in the founding agreements - also legal values.

These culminate in human rights in a state governed by the rule of law, when these two elementsimplement all generally accepted values from human dignity through freedom and democracyto tolerance, solidarity, equality and justice.

The system of values, filled with these elements, is on the one hand a part or the general cultureand on the other hand, particularly when it is institutionalized in general legal acts, a part of thelegal culture. Inside the legal culture, it is first of all binding for the professional legal culture andthen also for the universal legal culture. So as basic values are alike in general and professionalcultures and defined in legal acts,40 this shows the way to the harmonization of a general andprofessional legal culture.

The main shaper of the professional legal culture has always been the office of judge. Althoughjudges present the minority within the legal class, 41 their views and actions are essential for thedefinition of the content of legal culture. The judges, who are - in normal social circumstances- legal elite, set patterns of legal views and actions, first for the legal professional dass and thenalso for the general legal culture of the entire global society. This influence is not a one-way rela-tion, as material and spiritual culture of the global society in which they operate also influencesthe judges while they are filling the reference pattern.

We should not overlook that some values, leading in the administration of justice as the culturalsettling of conflicts, are so-to-say self-evident presumptions of modem civilizations and generallegal culture. It is possible to say this about the content of the Universal Declaration on Human

19 E.g.: Bavcon: "I am amazed to read and hear thc negative evaluations of our judiciary, given by some politicians, some

messengers of the civil society and some journalists, who report this with unconcealed pleasure." (Bavcon, 2006: 127).

Similarly: the President of the Republic of Slovenia Dr. Danilo Tdrk in his appearance at the National Assembly of the

Republic of Slovenia (24. 4. 2oo8): "ladies and gentlemen, dear deputies, you will agree with my judgement that it is

unacceptable that in Slovenia the courts are exposed to generalized or even quite unlimited criticism of media, which

is sometimes politically motivated."

4o E.g.: Article ia of the Lisbon Treaty of December 2007: "The Union is founded on the values of respect for human

dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons be-

longing to minorities. These values are common to the Member States in a society in which pluralism, non-discrimi-

nation, tolerance, justice, solidarity and equality between women and men prevail."

4' Among 7000 lawyers I194 applications for a post ofjudge were invited in Slovenia at the end of 2007 (Source: Sodni

svet Repubike Slovenije - Judicial Council of the Republic of Slovenia).

27



Rights, which "as common ideal of all peoples and all nations... "4' enumerates generally acceptedlegal values, either for independent and impartial administration of justice as original principleof fair trial, 43 or for the autonomy of judicial decision-making.44 In all these areas, more or lesssatisfactory interactions that often connect professional and general legal culture by means ofmass media are going on.

The role of mass media is particularly exposed and sensitive in passing on information on judicialdecision-making. When media present court performance in factual reports, the views and opin-ions of journalists are often implicated in the formation of the conception of judiciary lateradopted by the public opinion. In the modern society, mass media have an actual monopolyover presenting, interpreting and commenting on judicial cases (Merc, 2006: 554). Therefore,in reality media have a greater impact on general legal culture than the professional legal class, al-though media are only intermediaries between legal institutions and the public.

Literature quoted

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OxfordBuar France (1998): Demokracija in kriza nagih ustavnih institucij, Nova revija, LjubljanaBu~ar France (2004): Pravnik v dananjem 6asu, Pravna praksa, letnik 23, 9t. 36, GV LjubljanaCotterrell Roger (2006): Law, Culture and Society - Legal Ideas in the Mirror of Social Theory,

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4' Preamble to the Universal Declaration of Human Rights, UNO, Dec. 10, 1948; Rotry finds that the phenomenon ofhuman rights has led to new culture of the human species (Rotry, i996).

43 "Fair trial" from the European Convention on Human Rights and Fundamental Freedoms." For more see: Merc B. : Sodno odlo~anje in medijsko izjavljanje - pravno izhodike (Judicial decision-making and

media coverage - legal starting point, Pravnik, Vol, 61, Nos. 6-8, Ljubljana 2oo6, pp. 53 5-582.

28



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