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Citation: 5 Slovenian L. Rev. 11 2008

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SLOVENIAN LEGAL CULTURE

Albin Iglicar*

i. The Concept of Culture

he concept of legal culture is placed in the wider understanding of culture in general.

Defining culture ispossible first in:

a) the widest (anthropological) sense, when by the concept of culture we designate everything in
the world that is the consequence of man's activity and/or everything that is not already given
by 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 world
Some people add to this also the concept of social
of values, thoughts, views, and norms.
2
relations.
human
of
area
the
culture as
From this distinction is derived the very frequently used
b) concept of culture midway between the widest and the narrowest understanding, that iswhen
we use it to denominate areas of human spiritual creativity and/or the so-called special form
of social consciousness, from religion, values, and norms, through philosophy, ideology, and
science, 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 achievements 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.

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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 understanding isfairly frequent in the everyday colloquial language and also in official political activities.

The starting point for the sociological view on culture is the classical Taylor's definition of culture
as civilisation encompassing s... knowledge, religion, art, law, customs, and all other abilities and
habits 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 indudes
also law. In this sense it is necessary to understand the interpretation of culture as a community
of all ways of thinking and behaviour man has been acquiring through symbols in contact with
other people (Goriar, 1975: 45). In the system of social relations, communication among people
is going on through language and other symbols. This specific human worlds begins with
processes of socialisation,6 the content of which is in the very adoption of culture and/or the
whole 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 beliefs
and 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 systems
of 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 inside
the entire social system. 8 Functional classification arranges the most important institutions as
family and relatives, economic, educational, political, cultural, religious, and recreational institutions (Gori~ar, 1975:18i). Social institutions, reflecting general characteristics of a global society, stabilise patterns of behaviour and actions and thus facilitate integration of individuals
into 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. for
science 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

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SLOVENIAN LEGAL CULTURE

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 communication 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 is
going on in the cultural world. From the legal point of view, the normative function of culture
isparticularly important because of decreasing disorder, chance and imbalance in life and/or because of increasing security and organisation of social surroundings. In this sense the systems
theory 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 tradition
and rituals to rules of good manners, fashion and professional rules in various areas and of course
also legal norms. All kinds of norms direct man's social actions and represent the framework for
establishing relations between people. A special place among social norms isheld by legal norms
which are of vital importance for the shaping of the legal culture.
2.

The concept of legal culture

Legal culture isan aggregate concept. Its elements are ideas, expectations, evaluations and attitudes
people 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 understands
an empirically researched social phenomenon, which includes legally defined ideas on values,
norms, institutions, rules of procedure and modes of behaviour (Raiser, 2007: 311). Legal culture
is composed of behaviours, values and attitudes existing in the society regarding law, legal system
and its various parts (Cotterrell, 2006: 83). Hence it follows that legal culture is composed of an
ideal and a real part of this phenomenon.
The ideal part of legal culture encompasses: ideas, evaluations, expectations of and opinions on
legal norms and institutions. The actual part of legal culture contains behaviour of people regarding the legal system, attitudes and habits. When forming legal culture it ispossible - according
to Friedmann (Friedmann, 199o) - to differentiate between legal culture, emerging as a consequence of the demands made by members of the global society to the legal system (exterior
and/or general legal culture) and legal culture, formed as a result of the advance formation of
legal 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 establishing
social 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

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of studying legal culture, however, both elements may be differentiated, but upon concluding
synthetic presentations it isagain necessary to consider the totality in origins and effects of the
legal culture.
For a general picture of the legal culture in a concrete global society its quantitative aspect is also
important. Therefore, it is possible to maintain that the general designation of legal culture
exposes views on and definitions of legal values and norms of the majority of members of the
global 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 socalled cultural fact (Uakar, 2oo6, 3: 61). Philosophy of law stresses the assertion that law is a
cultural concept (Radbruch, 2007: 63). In this sense, law ispart of man's world of ideas and his
spiritual creativity,'12 which is then reflected in the material (physical) world as a certain behaviour
of people and their organisations. Therefore we often meet emphases on great significance of the
legal culture for the formation of personality and assertions, that lack of legal culture causes imperfections in the personal structure of individuals (Rehbinder, 20oo: 137). Legal alienation is
thus decisive for deficiencies in the process of socialisation. In these processes of integration of
individuals in the society through learning social roles, legal performances are indispensable elements of the directors and motivators of man's social activity. In connection with this, we meet
standpoints exposing this activity in settling disputes.'3
As the whole of social institutions - in the sense of general culture - reflects characteristics of a
certain global society, so also the legal culture reflects circumstances in this society. Therefore, it
is necessary to speak today of the diversity of legal cultures, of their pluralism as the consequence
of 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 the
East and West. While the legal concepts of the Eastern civilisation originate in harmony,14 the
Western ones are more prone to the fight for law.' 5 While in the Japanese legal culture, for instance, it is so-to-say shameful to settle disputes in court, in the US this is considered perfectly
normal (Rehbinder, 2000: 175). Besides this, a pluralistic view on legal culture exposes its complexity inside a certain legal society. Therefore numerous economic, political, interest and class
determinants 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 scientific
discipline, which studies social relations regulated by law, i.e. the sociology of law, to be a part of the sociology of
culture. In this connection we often meet the assertion "that law is actually a cultural phenomenon in the sense of a
constitutive element or manifestation ofa 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 behaviour
of people, juristic persons, and legal institutions in disputes and in potentially controversial (dispute generating) situations." (Zupan~i6, 1995: 35).
,4 E.g. Confucianism.
'5 E.g. Ihering, Fight for Law (Kampf ums Recht).

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interests into legal claims and/or that on protecting certain interests, legal culture appears as a
shaper of legal claims (Cotterrell, 2006: 87).
Interests appear as a reflection of human needs. The needs originate in the civil society and are to agreat extent under the influence of the general and legal culture - transformed in the political
society into interests. In the political sphere, interests then motivate human actions, and not only
those directly oriented to satisfi, everyday current needs, but also system and/or institutional solutions (Habermas, 1975: 241). Here, an important role isplayed by the legal ideology, which
in connection with the legal doctrine also establishes a connection with the social power and
with the prevailing stream of thinking and beliefs (Cotterrell, 2oo6: 90). The content of legal
ideology originates in legal culture of a global society in the sense of prevailing patterns of behaviour,' 6 values and opinions on normative legal claims.
Besides this, differences and also contrasts appear in the legal culture of various social classes, regarding e.g. social status, profession, age, etc.I7 The social status of individuals has a strong influence on the subjective comprehension of the legal sphere of global society and also on their actual
behaviour 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 of
understanding of legal values and norms by legal subjects, while in the latter we refer to the expectations 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 of
the 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 various
patterns of the legal culture.' Such pluralism of legal cultures, however, is nowadays changing
to legal universalism (Raiser, 2007: 317) because of the globalising processes in the area of economic integration of the world, its political reconciliation, and the general cultural unification.
This isoften expressed in the processes of reception of a certain legal order, when legal culture of
the state, which has received the "imported" legal order, ischanging, and at the same time also
the 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, Cankarjeva 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).

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has received foreign legal order of a definite set of social relations.'2 Strong integrative and/or assimilative processes result in the modem society doing away with differences between legal cultures
as well as approximation and/or convergence of various legal systems. The mentioned operation
can clearly be seen in the processes of approximation of the European continental and AngloSaxon legal systems within the European Union.'
Therefore also from the aspect of changes in the legal culture as a consequence of changes in the
social structure we find some tendencies of development, common to all global societies in modern times. This is foremost the tendency for uniformity of law, both in the regional and substantive as well as the personal aspect. Such changes are first of all the consequence of enlargement
of 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 more
important 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 determined by the general social interests at the expense of the part determined by special interests of
only some classes and layers of society.
In almost all modem legal systems it ispossible to find tendencies of a constant spreading of legal
order and/or constant enhancement of the scope of legal acts and legal norms, which is a consequence of the growing complexity and organisation of social life, progress of science, and desire of
people for predictability in establishing social relations, arising from people's need for safety. The
tendency towards bureaucratisation and specialisation of legal processes - arising from the growing
rationality in the society- isadded thereto. From the said conditions springs also the tendency for
an ever greater professionalism of the legal system, its intrinsic scientific bases together with the
demands 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 in
people's conceptions and opinions of legal institutions as well as in their actual behaviour and
actions. Oudets of mass media that decisively shape public opinion and thus also people's conceptions of legal phenomena by describing and showing legal processes, presenting standpoints
and opinions" have a decisive impact on both elements of the legal culture. Standpoints, opinions, and expectations of people about the course of legal processes are important in the sense of
discussions 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 to
the European Union.
" E.g.: equalising the significance of law (as the main formal legal source in the continental system) and judgement (as
the 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 primary accumulation the deficient functioning ofthe state governed by the rule of law enabled the origin of a quasi-entrepreneurial elite..." (12.2. 2oo8).

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SLOVENIAN LEGAL CULTURE

This public opinion primarily concerns the general legal culture, which encompasses legal principles and legal behaviour of all members of the global society.We should single out of the general
legal culture the professional legal culture, i.e. legal principles and legal behaviour of professional
lawyers.
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 and
describing actual social functioning of legal subjects. The trust in institutions and a general acquaintance 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 values
and norms. Besides this, the degree of trust in the institutions of the legal and political systems
also points to their legitimacy. The higher the expressed public support for the institutions, the
higher the legitimacy of the legal and political systems.
The public opinion aspect of the legal culture as shown by public opinion polls in Slovenia in
the last decade of the 2oth century is rather disagreeable. We can see that in comparison with selected 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 end
of the 2oth century in selected countries was as follows (Kaase - Newton -Tog, 1999: 239):
65
63
58
56
50

Germany
Netherlands
France
Sweden
Slovenia
Italy

32

From the table above, we can see that in the selected countries only in Italy the trust in the legal
system was lower than in Slovenia. The trend of falling trust in the legal system isalso worrying.
Thus e.g. the percentage of trust in the legal system in 1992 was 50%, while in 1995 itwas only
34 %(ibid).
Besides this, according to the Slovenian public opinion polls conducted at the end of the 20th
century regarding the degree of trust, the legal system only came 7 th among the ten selected institutions. This isillustrated by the following table showing the percentage of answers "completely
trust" and "trust" (ibid):

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System of education
Police
Army
Press
Church
Big companies
Legal system
Public services
Parliament
Syndicates

72

46
43
42

37
37
34 (!)
27
24
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 parliament enjoyed lower levels of trust than the legal system. The low degree of trust in the legal
system isa reflection of objective happenings in the slow upgrading of the legal system in the independent Slovenian state, its inconsistence and bad functioning of the institutions, where
processes of adopting general legal norms and processes of social control of their implementation
and 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 in
Slovenia in this period only 44 %of people said they trusted the legal system.2 3
Slovenia distinctly diverges downwards from European averages regarding trust in the legal system also in the following years (Tog, 2007: 372).
At the beginning of the 21St century, European sociological studies found the degree of trust in
the legal system on the scale from o to io. The results obtained show great differences in expressing
trust in the legal system between the so-called old and new democracies. The position of the selected 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 Macroeconomic
Analyses and Development), Ljubljana 2oo2.
14Data collection SJM (Slovenian public opinion), CJMMK (Public Opinion and Mass Communication Research Centre), FDV (Faculty of Social Sciences), Ljubljana.

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Denmark

7.13

Finland
Norway
Slovenia

6.75
6.35

Czech Republic

3.8 1

Poland

3.68

4.28

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 the
legal system were in fact probably too idealistically conceived; nevertheless, their bad work and
greater stress given by the media to the weak performance of these institutions also contribute to
the 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/or
State council isconditioned by the idea that Slovenian Parliament is more a place of quarrels and
conflicts of the political parties than a place of tolerant harmonisation of various interests and
looking for true common national interests. That iswhy in such a representative body, legislative
procedures last unnecessarily long, the content of the adopted laws isthe result of bad short-term
compromises and of the voting machine of the parliamentary majority. If then the Parliament
also changes and amends a lot of laws soon after their adoption and the Constitutional Court
annuls them, it is understandable that the reputation of the Parliament isvery low, as is the trust
of the public in the processes of shaping of the legal system. Such a perception of the legislative
activity in the public opinion lowers the general legal culture and brings in social relations legal
relativism, when respect of laws isconditioned by chances and often hindered by contrary interests
(Buait, 1998: 102).
The deciding body of the legislative power in Slovenia has experienced considerable oscillations
regarding people's trust in its work. This isshown in yearly sections from the study on the Slovenian public opinion (the share of answers of the respondents on trust in the work of the National
Assembly "trust isgreat" 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).

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1991

33.6

1994

15.0

1996

11.2

1998

9.1

2001

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 branches
of 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 15
26
years from 1991 to 2oo6 amounted to:
Courts
Government
National Assembly

32.6
30.
16.9

In the Slovenian legal consciousness, the opinion on the functioning of Slovenia as a state governed by the rule of law has also been changing. In this part of the legal culture, we may perceive
a certain positive trend. To the poll question "Is Slovenia a state governed by the rule of law?" the
share 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 uncertainty of the respondents in feeling and/or subjective perception of the functioning of the rule
of law. 21 Such opinions and standpoints of the citizens coincide with the findings of the studies
on political culture which state that in Slovenia half of the inhabitants prefer democracy, while
Study ofSJM (Slovenian Public Opinion) 199 -2006; CJMMK (Public Opinion and Mass Communication Research
Centre), 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.
211

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the other half express apathy towards functioning of the state and its structure (Kolenc, 2006:
ombudsman still finds a decrease of trust in the functioning of
785). In his reports, however,
29 the
the rule of law in Slovenia.
Regarding trust - as already stated - the legislator, i.e. the National Assembly, constantly comes
last among the Slovenian state institutions. Regarding the degree of trust in 2006 the central
state authorities, representing the three branches of government, were ranked as follows (the
total of answers "the trust is great" and "the trust isconsiderable" is given in %):3
Courts

37.5

Government
National Assembly

29.9

16.8

At the end of nineties, the trust in the courts in some European countries (percentage) was ranked
by an international research study as follows (Tog, Bernik 2002):
Czech Republic
Slovakia
Hungary
Poland
Slovenia

34%
39%
43%
38 %
43 %

Germany
Austria

50%
60o

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

Study ofSJM (Slovenian Public Opinion), 2oo6, CJMMK (Public Opinion and Mass Communication Research CenW0
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.

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Family

3.7

Educational institutions

2.9

Euro

2.7

Slovenian army
Ombudsman
Police
Humanitarian organisations
President of the Republic
Mass media
Government of the RS

2.6

Courts

2.2

National Assembly
Church

2.1

Security and Intelligence Service

1.8

2.5
2.4
2.3
2.3
2.2
2.2

1.9

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 ispossible to point to the interesting contradiction, namely to the fact that in spite of the low degree of confidence in the
courts the people in Slovenia try to solve more and more disputes in court, since more and more
cases are brought before the court every year. 32 In the general legal culture, the feeling was that
going to court is"utima ratio" and/or extreme means of settling mutual conflicts. Together with
a general decrease of tolerance in social relations extrajudicial ways of settling disputes, from mediations to conciliation and arbitration procedures, are applied far too little in the cases of conflicts.
Inside the answers on trust in courts among the people polled, more often than on average young
people as well as the retired population, people with university education and members of middle
and upper classes as well as respondents on the political right have trust in the courts. The lowest
degree of trust in courts is shown by the polled members of lower classes and left-oriented respondents (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

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

31 Charges

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1991 to 2oo6 we can find the following percents of

also about the courts. In the period from
33
years:
individual
in
courts
trust in the
'991

34.7

1994

26.2

1996
1998
2001
2003

24.3
33-2
41.7
34.9
37.5

2006
Average i99i - 2oo6

32.6

In the judiciary critical phenomena culminated in mid-nineties. This was reflected in the public
opinion as a fall of trust in judicial institutions from one third to merely one quarter share of respondents. Public opinion has thus fairly accurately reflected objective events in the judiciary, as
at the end of the nineties - after the stabilisation of the judicial system - the share of poll answers
stating complete or fair trust in the judiciary came back closer to one third. At the beginning of
the 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 property 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 judiciary established by public opinion polls. Therefore faster solving of court cases, independence
of 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 isa 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 advance
material 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 Research Centre), FDV (Faculty of Social Sciences).

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This general interest that requires certain stability and predictability in the social functioning of
individuals and their organisations is often blurred by various partial interests of social strata and
groups. Therefore also understanding and comprehending of legal norms in the consciousness
of 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 together with increasing and prevailing of the middle class, bring about the decrease of the said
segmentation of the legal culture. In this way goes the formation of joint and unified values, legal
principles 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 the
ideas 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 increased
very much in the so-called developed countries ofWestern democracy both quantiatively34 and
in its impact on the course of public life. The main reason for the increasing importance of legal
professional social roles originates in the fact of"panjuridisation" of social relations, as more and
more spheres of the society are subject to legal order. The growing scope of legal regulating originates in the activities of social state and the increasing rationality and organised human communication.
The stated trends also spread across Slovenia, particularly after its independence, implemented
transition and accession to the European Union. A state's independence certainly increases the
significance of law and the role of lawyers in the professional structure of the global society. After
all, this was also affected by the constitutional legal emphases on Slovenia as a state governed by
the rule of law and social state. 35 The mentioned constitutional principles increased the significance of law and lawyers. This resulted in greater role of legal values and legal culture both in the
political state and in the civil society. In these circumstances, it was the professional legal culture
that made an extremely important impact on and so-to-say a frame of reference for the general

legal culture.
This means that the society watches lawyers very closely and critically evaluates them, and at the
same time acknowledges their fairly high social status. So e.g. sociologists find strong influence
of lawyers on public life and high social reputation of this profession in Germany. According to
public opinion polls, lawyers are at the very top of professional prestige. Only doctors and sometimes - in old German provinces - priests come before them (Raiser, 2007:3 36). Similar findings
14

From the sixties ofthe 2oth century to the beginning of the 21st century the number of lawyers more than doubled in
Federal Republic of Germany, so that at the outset ofthe 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 administration, and I o% in economy (Raiser, 2007: 336).

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

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hold true for Slovenia, as e.g. at the end of the 2ist century the total of answers in the Slovenian
public opinion 36 I value "highly' and "very highly" the said profession can be placed in the following rank order:
doctor
professor
lawyer
engineer
economist
police inspector
military officer
painter

90.7
78.2

66.6
63.4
62.5
53.1
51.8
39.2

The presented scale shows that legal profession is placed very high and/or that it is at the very
top of the status-related ranking of professional social roles. If we add to this the information
that lawyers constitute i% of all employed people, it isan additional emphasis bringing out the
importance of the function of lawyers in defining the content of legal culture. Inside the legal
professional stratum the position of judges, who enforce the rule of law in democratic society, is
particularly exposed (Barak, 2oo6: 56). By interpreting general legal norms they decrease the tension 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 cultural cirde 37 where the traditional mentality, that regulating and settling disputes is the task of the
legal 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 indicated circumstances can go in a positive or in a negative direction - in other words, it can mean
a 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 of
individuals and in the later processes of communication among adults, will be necessary for the
broadening 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 ISstcentury, there were 2 5judges 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).

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general legal culture. On comparing general legal culture and legal culture of lawyers, we often
find characteristic differences or even clearly contrary views.
We can notice this already in the understanding of some original legal values, as for instance in
dealing with guilt in criminal justice. In the general legal culture, we encounter in individual
countries 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):

Australia
Germany
Great Britain

To condemn an innocent person

77.1
85.3
76.7

To acquit a guilty person

22.9

USA

75.2

24.8

Italy
Slovenia

82.0
84.1

i8.o
15.8

14.7

23.3

This picture isof course contrary to the professional legal interpretation that it isbetter to acquit
nine guilty persons than to condemn one innocent. In the light of the presented answers and the
mentioned saying it will obviously be necessary to establish a certain "correspondence" between
the general and professional legal culture, since students of law already range their answers quite
differently. That this consciousness isbeginning to be formed already in the course of professional
legal socialisation is shown by the comparison of the answers of the so-called general public and
students of the Faculty of Law (in Ljubljana) to one of the questions from the area of human
rights. To the question "Isit better to condemn an innocent person or to acquit a guilty one in
the case of judicial error?", the answers are as follows (Predani4, 1995: 28):

condemn an
innocent person
acquit a guilty
person

Slovenian public opinion

1995
2006
61,2
66,7

Students of the faculty of law

1995
6, 5

18,9

90,9

15,4

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

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and this to a great extent due to the negative

yet established in the universal legal consciousness
39
relation of politics and media to the judiciary.
The progress of European processes of integration not only in the area of economics and society
but also in the area of values and culture may contribute much to the reconciliation of professional
and general legal culture. Particularly, when common values on which European Union isbased
become - 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 elements
implement all generally accepted values from human dignity through freedom and democracy
to tolerance, solidarity, equality and justice.
The system of values, filled with these elements, is on the one hand a part or the general culture
and on the other hand, particularly when it isinstitutionalized in general legal acts, a part of the
legal culture. Inside the legal culture, it isfirst of all binding for the professional legal culture and
then also for the universal legal culture. So as basic values are alike in general and professional
cultures and defined in legal acts, 40 this shows the way to the harmonization of a general and
professional legal culture.
The main shaper of the professional legal culture has always been the office of judge. Although
judges present the minority within the legal class, 41 their views and actions are essential for the
definition 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 then
also for the general legal culture of the entire global society. This influence is not a one-way relation, as material and spiritual culture of the global society in which they operate also influences
the judges while they are filling the reference pattern.
We should not overlook that some values, leading in the administration of justice as the cultural
settling of conflicts, are so-to-say self-evident presumptions of modem civilizations and general
legal culture. It ispossible to say this about the content of the Universal Declaration on Human
19E.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."
4oE.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 belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, 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

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Rights, which "as common ideal of all peoples and all nations... "4' enumerates generally accepted
legal values, either for independent and impartial administration of justice as original principle
of fair trial, 43 or for the autonomy of judicial decision-making. 44 In all these areas, more or less
satisfactory interactions that often connect professional and general legal culture by means of
mass media are going on.
The role of mass media is particularly exposed and sensitive in passing on information on judicial
decision-making. When media present court performance in factual reports, the views and opinions of journalists are often implicated in the formation of the conception of judiciary later
adopted by the public opinion. In the modern society, mass media have an actual monopoly
over 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, although media are only intermediaries between legal institutions and the public.

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