Civilisation (or the minimal functions of the state) must be defended

I use this paraphrase of Foucault to introduce some thoughts which bothered me recently.

Participating in a talk with some friends who are judges, about the ever changing announcements of budget cuts, I had to strongly debate with them the ideas of rights, entitlements, benefits, with respect to their salaries. Since I am not a supporter of the confuse ways in which the ideas of rights are debated in Romania, I mostly rejected any metaphysical idea of rights which may support the (un)cut of salaries. But so did they!

Nonetheless, something else occurred to my mind, and now I believe that put it simply in terms of rights, the problem of the salaries of the judiciary is a straw man, and something more fundamental is a stake here. So let me try to explain as simply as I could, what is at stake here. I apologize in advance for any spelling (or other) mistakes I made at this late time in the night.

But in order to do so, let me do it a small detour, and let’s start first with some declarations.

Mr Vladescu, the Finance Ministry, whose declarations I will take more seriously if he would make an effort to behave himself, declared among other things that the government will try to make all efforts to expand the collection of revenues to the budget (collection which as we know, is one of the poorest in Europe), will do more controls, blah, blah.

Mr. Daianu, who is not in government but whom I respect and admire, reflecting in part the vision of Mr Vladescu, declared in an interview in 22 that we should consider ourselves at war (in the economy) and do the foremost to attract more money from the EU.

But with whom on Earth will we do more collections as Mr. Vladescu said, if the Finance Ministry ran by himself is already in disarray with such collections, and it will be further hit by a freezing in personnel, or by a permanent reduction in his employees salaries, which, we shall say, will have the result of inflicting more damage to the already poor morale of such employees (the question could be raised: if an employee is investigating a crime in which the criminal “made” 100 millions, and is induced with a bribe of 100000 representing 10 years of her salaries to close her eyes, what shall or actually will she do, since she does not even know if tomorrow will hold the post? Collecting more money for the state budget?)

Second, with whom on Earth will we be able to attract more money, spoke about so graciously by Mr. Daianu ? With the understaffed, poorly paid and incompetent staffs of the European departments of mayoral services, government services and so on? Don’t you need some money to attract the bright, or has to be the public service for free? Or does Mr. Daianu speak from experience, which I doubt, at as one point he said that he managed somehow to make himself a million from consulting the state.

And the point is, should we bullshit ourselves in such a degree, especially since we are not in campaign at all or we aren’t anymore? (Frankfurter has a nice book “On bullshit”, which after all, has became nowadays almost a philosophical condition). Or it is something wrong with the economist’s profession, which I doubt, since people as I know and are economists demonstrate the contrary.

But let’s return to the first problem, which put it bluntly is the following:

-could the poorest paid judge, in a relatively big town (where most of the courts and judges) are located, live with the present salary, which for a definitive judge is probably somewhere around 700-1000 euro?

Let’s see. In Bucharest, in a modest neighborhood’s free market, a rent is at minimum 300 euros. Food for a person is at minimum other 2-250 euros. Utilities and the due of the block’s associations are at minimum 100-150 euros. Transportation should add at minimum 50 euros to the bill, and a cell phone contract and an internet link another 40-50 euros a month. So at a minimum, without clothes, books, too much entertainment or anything else, and a very modest flat and living conditions, you need in Bucharest at least 7-800/moth just to keep your face, and not to get in a little fat loosing spree from month to month. What on earth will happens to the basic Jane Judge when a 25% cut will enter the scene (but exactly how much will be the cut, or if in the end will halve more than 25% nobody knows exactly, because Olympus Vladescu is obscure about these points, and the estimations are that the reduction will cut more than that when will fully operate)? Perhaps will start eating less, or who knows, she will stop paying the rent and get evicted, or the bills, and get executed, anyway, she will have free choice in choosing what not to pay. (my old listerv friend, Catalin Dimofte brought to my attention that I overestimated by at least a third the amount, and I thank him for the pointer. But I think that even an overestimation greater than that does not fundamentally subvert the argument)

To this problem of the basic Jane Judge, several counter arguments (which I will call straw) are basically brought in by government, media, etc.

1) First, and I believe the most important from a perspective centered in Justice, that the judges are making more than the pensioners, other budgeters, or in general by other people. That they are anyway well paid at the Romanian standards.

2) Second, that not even Jane Judge is paid so lees as we will have attempted to show above, and that in fact actually most of judges are better paid than anyone else in Romania (and the implicit argument, which is not made, but I put it, that because of the differences in the judges salaries, most are not paid at the base, but at much higher scale, so few if any are in the position of Jane Judge)

3) that if all the budgeters take the cut, an egalitarian ethos impose that judges shall not be excluded

4) that they are much better paid that the social service which they are able to deliver (I will call this argument the inefficiency one, and is similar for doctors, professors, the learned professions in general, in Romania or in third world) that they have been always able to block all serious efforts to prosecute high crime, that they are corrupt, inefficient, etc (general argument brought towards administration) and in general, that there will be a waste to throw more money to such an inefficient system.

Of course, there are more arguments, but I hope that I was able to restate the most import ones.

So let’s talk a little about all of them.

1) First argument seems to me to be based on the rather wrong assumption that the salary, pension or whatever paid by the state is the only income of a person. In Romania this may be generally true, but not even in Romania is this as universal as we generally love to think. The recent data published by Mr. Videanu ministry shows how a functionary paid with 2000 lei, could make in a month 10 times more in flat fees paid by the (multiple) GA of the state companies in which she holds a position. And this sweet honey is the reason why Mr. Olteanu, now at the Bank and formerly in the chamber, flatly refused to drop his participation in such assemblies when it was brought to his attention that there may be a conflict of interests between the activities of the legislator and those of the lobbyist for a state enterprise. Further, if many of the pension recipients might be in such situation, we shall not forget that some of them participated in the one time great re-distribution organized by Iliescu & co in early nineties, when state built flats were distributed for a nominal fee to the former tenants. So a pension recipient receiving now 150 euros a month might hold one such flat (and live in his wife’s apartment) and collect a 300 euros from renting it, and therefore his actual income will be a little more than the meager revenue collected from the state. And perhaps we shall say that although probably the most pensioners are not in such fortunate situations, the idea is that we can say precisely nothing just of the basis of monthly income received from the budget, as the past 20 years governments, no matter their political color, were able to build here one of the most inequitable, screwed, and silly stratified society in Europe, by giving away state property to all sort of recipients. And if all benefits delivered by the state at one time or another are property, the “new property”, as Charles Reich thought us in the sixties, we should be able to have first a picture of everything that state distributed at one time, and then have a clear picture of all the incomes derived from such distribution (or of all income a person receive), in order to be able to make in all knowledge such an argument. Which, given the skewed ways of knowing promoted by all the finance ministries until now, we are not able to know. So this argument might be popular, but until we do not know what everybody gets, its bases are weak, terrible weak, in my opinion.

2) There is some truth in the idea that the pay scales of the judges are stratified, but let’s see how stratification really works, who is responsible for stratification, and why stratification, as it functions now is an impediment in building a modern, weberian type judiciary. And let’s start with little history. …..In communism, a judge was a functionary, not even the most important one, as the role was reserved for prosecutor, the transmission belt of the party. However, the communists had an egalitarian idea, so if at the basis a judge started with some 2.4-3.000 lei, similar to most learned professions, at the top, in Tribunalul Suprem, a judge could only made 2-4 time more than at the bottom. There were some differences when the judges could secure another pay as professors, but such instances were rare, and the most they could do to improve their income was to write books, which also was a rather unusual occurrence. Of course, there was always more money for “special people” who could deliver for State Security and better salaries for special courts, as the Military tribunals for example, but these were the exceptions, not the rule. This stratification, in which the communists reproduced probably without knowing the principles of a modern bureaucracy ensured not large discrepancies and somehow the necessary esprit de corps for the judicial bureaucracy. When Iliescu’s (and his team) time came, this organization was turned on its head. First, the amenable jurists were promoted to the FSN and later to the parliament. Second, there was no purge of the judiciary, the compromised could sit with the uncompromised (albeit compromise is a relative term in communism), the lustrable with the non lustrable, and so forth. Some of the ablest judges and prosecutors quit and became attorneys or (later) even notaries, but also did some of the most compromised or indictable. From other professions some, especially the former juridical advisers of state companies entered the profession and made fulminate careers. Former military magistrates (some indictable) switched profession and skewed further the profession, when necessary and the party wanted. And the most amenable were promoted, so a notable court which was pampered unofficially with the nickname the “High Court of Spouses” was able to overrun itself at the general prosecutor demand on taking Iliescu’s orders, and create the “cause celebre” at the European Court of Human Rights, which we know under the name of Brumarescu. The most loyal and capable also became professors at the newly private run universities, so they could divide aptly their unstoppable energy between bench and “teaching” (now the famous judge Posner does so, and so does some of the most celebrated American judges, but they are in a different intellectual league, and in a different system), and make even more money. The less intellectually potent but enterprising published “collection of decisions”, a burgeoning field, with more money to be made, albeit nobody observed that no databases with published decisions, so necessary for all the legal professions, never appeared in Romania, and the sole such project worked out almost individually by judge Neacsu was quietly sabotaged by the Ministry of Justice run. One in one, who could deliver what politicians wanted was rewarded, special surpluses were given to her, on the discretionary basis of the party and of the government, of course, since honey was not for everyone, but for the most loyal. Who could not get honey from politicians but had entrepreneurial spirit, could cross the thin line between bench and the parties sued by the state, and in the case in which the criminal was not effective in bribing the cops or the prosecutor to obtain the dropping of his file, demand effective reward from the criminal in exchange for liberty. And perhaps the loyalty towards the party’s line, combined with some indulgences, in addition to the bribes delivered by the white collars criminals to the police and prosecutors explain why, with the exception of Stoica “Caritas” who got 2 years if I correctly remember, and a number of other small indictments, you could still see big cases of state money embezzlement still lingering on the table after so many years. Anyway, the combined result of the above was that the stratification scheme of the communists started to erode, with the consequence that the moral of profession, already weak, plunged. A low point of that low and dishonest decade came out probably with the suicide of prosecutor Panait. Finally, the differences between the salaries at the top and those at the bottom increased probably to a 1/7 to 1/10 ratio, with all sort of special bonuses for categories drawn arbitrary, so a correct estimate is impossible to be done. Anyway, at the bark of the EC and under the pressure of Romanian accession some improvements were visible in the second decade, in particular during the short tenure of Mrs. Macovei. The salaries of the judges, even at the bottom were raised (and if I correctly remember this was done in steps, starting during Mr. Vacaroiu tenure), and an Institute for Magistrates was set up, with the mission to recruit and prepare uniformly the new magistrates. Nonetheless, even during Macovei tenure, the flawed inbuilt scheme of rewards was not adjusted, and moreover, the skew started during Iliescu time, in which most of Ministry personnel was assimilated with judges (so with bonuses and all they could made more money than the ordinary judge) continued. Moreover, the Ministry of Justice continues to run in an intriguing way 4 budgets under his own umbrella, one for his actual employees, one for the ordinary courts, one for the penitentiaries, one for the prosecutors, so given the multitude of exceptions, exceptions from exceptions and meta-exceptions which are so common to the labyrinthine mind of Romanian “legislatores” it is almost impossible to say who get what, albeit in what I saw recently, the scheme is strongly biased against the ordinary judges and ordinary courts, which more often than not, do all the work. My friend Adrian Neacus has a great document in Romanian, detailing how the scheme works, and actually why it does not work, as the ordinary courts and tribunals are often in impossibility to get even the paper to print the judges’ decisions. If you ask me why is the scheme so skewed and a Ministry keeps a budgets which is incapably to run properly, despite the fact that the courts, when collecting the fees for civil actions, are the only capable to pay themselves and to pay the whole system, and the penitentiaries, when using the unpaid work of the inmates are the other ones capable to sustain themselves, I respond that I do not know, albeit I suspect a combination of sheer ineptitude, incompetence and vested interests to be the reason. But the most important point is not why the ministry is not able to run anything and deliberately keeps a cloud on the whole scheme, the point is are we pay enough Jenny Jones from the ordinary instance to do her job and keep her away from temptations to get indulged in bribes? And correlative, are we giving enough to the courts to run a proper business, not a very good one but a decent one? And are we imaging a scheme in which they are no blatant and unjustified discrepancies between judges’ salaries? Unjustified by any reason which usually justify a difference in salary and property (for non conaisseurs I remind that there are 7 such reasons in the philosophy of property rights). And the answer to all question, in my humble opinion and for the reasons briefly exposed is no, we are not. But perhaps, we should run a referendum and see if people prefer to have a better judiciary service, and what they are willing to pay for it!

3) To answer this point, I believe that we should ask first if judges are budgeters in the ordinary sense. Are they? And my opinion is that the judges could not be characterized so, but only in the most ordinary sense, that they derive an income which is paid by the state budget. In respect to all other aspects, and in particular to the fact they are the representative of the sole counter-majoritarian power in the state (the judiciary), they are not. Their status is that of the members of a fundamental power of the state, not the status of Mr. X who is driver at the ministry of interior, and could be fired at will, while respecting of course the conditions of his employment contract with the state. They have immunities, privileges and so on, which assure us of their independence, but they also have a lot of obligations and interdiction, in fact the most formidable and complete list of interdictions among all the professions which work for the state and drive an income from the state. If a parliamentarian or even a member of executive could freely run private business, make “affairs” with the state (by now, they don’t even have to declare their income obtained so) the judges are forbid to do so, with the penalty of exclusion from profession. So, even if from the point of distributive or commutative justice (see Black’s dictionary, 4th edition), it appears to me than given the additional restrictions posed on the profession, you could not apply an indiscriminate measure as you will and ask them for more than their due, or otherwise your measure will not be just. I could develop this argument back and for, suffice it to say for those who may be tempted to argue that the possibility of parliamentarians to make extra money for non legislative activities is just a possibility, and not a certain condition yes, for sure it is so, but how many successful business you saw run by parliamentarians and how many by drivers at the ministry of interior? And why is such discrepancy between these two sets of numbers? Not because the parliamentarians are able to draw on their social connections made as parliamentarians, and of course, on the power offered by the office? And don’t have the judges the same power as parliamentarians, if they want to? To conclude, I will say that the silly egalitarian argument (which after all is no so universally applied; there was much talk about the exclusion of the employee from the concentrates and autonomous companies from the cuts, under the argument they pay from themselves. But so are judges when collecting the action fees….and so on. Mr. Vladescu is not so silly to be confused by egalitarian arguments not properly applied and could make distinctions, as we had seen, even if such distinctions could kill a general bill if not justified properly, when the bill will be appraised by a constitutional court).


4) About the inefficiency of the system, which we should recognize, let’s ask again who is responsible for what? And let’s observe in the first place one thing. In the past twenty years, starting with the silly laws on property restitution, “we” created almost a million and a half cases just for property (I asked by curiosity and because I research such thinks how many cases had the Hungarian Judiciary, where a different system was enacted. They responded that they had only 20000 such cases, which, with all the difference between historical experiences under communism in the two countries discontinued still makes somehow clear how silly was the Romanian legislator’s approach to this issue). We should be able to create very soon another half million cases regarding the wrong imprisonment and sufferance during communism time, because we are unable to implement an efficient administrative body to deal in a just, efficient and expedite way to such matters. When the “legislator” (read parliament and government) irresponsibly afforded more pension or salary rights two years ago, albeit the Lehman Brothers specter was looming large at the horizon, unconsciously or not it created another million or so of potential cases related to pensions or workers compensation. The miserable legislation created by government and parliament, without any impact study, anthropological, economical or sociological study or foundation, whatsoever, is thrown constantly on the heads of judiciary, to interpret, make sense of nonsense and otherwise apply it. All sorts of political or social strata clients are given rights to sue or to do anything else, without costs, without any regards to what happens to the other end of the line, respectively with the judiciary. It looks to me that in her imagination, the best a parliamentarian or government officers could do is to look for more legislative output, as if on such a silly criterion is measured the greatness of a statesman, and dump anything, everything, even with cut and paste on someone else shoulders. And given this sort of irrational legislative exuberance, and the exponential increase of bad legislation, what to the judges get to be able to face the increase load? Do they get more means to do so? Do they get better computers, more staff, and more technical means? Do they get at least managerial support to run things smoothly? They get nothing, they only get some significant decrease of their income, and this is all they get! Of course, having more potential clients for litigation is in theory the happiness of the lawyers, but such happiness is not usually justified if the demand is not solvable (the clients do not have money), and it further strain the meager resources of the state. Moreover as in the “good” “real socialism” times a right which could not be litigated because the judicial system lacks the resources to do so, is not worth the piece of paper in which is written, or, as ECHR put it in the repetitive condemnations cases (not honored by Romania, and which could lead to Romania’s exclusion from the E Council) a right should not be illusory but effective.

And I should stop here if a further and more fundamental aspect seems not to be at stake. In a relatively recent and in my opinion original and interesting book, Preying on the state, the Chicago University educated political scientist Venelin Ganev made an interesting radiography of the dismantling of the Bulgarian state operated by the communists, which made impossible for the state to resist the capture of its assets by the rapacious former agents of the communist state. In addition to the idea of weak constitutional review (you could copy and tolerate a weak constitutional court, which does not affect your interests, and pay lip service to “democracy”; but in the case it affects something, you destroy it, from interior, as it what happened in Bulgaria with the central bank, when it attempted to be independent and interfered with the business interests of the postcommy elite), Ganev idea is that all the control functions exercised by the former communist state were dismantled in purpose and made ineffective. And they were never replaced by something, so a modern state could be run.

So, if the judiciary, in a state, has not the supreme function of control, who on Earth has such function? We may like or not their appearances or what they do, but they are the controllers, and we subvert intentionally the state and its capacity by reducing so unconsciously their means to do so. We are subverting here the rule of law, any means to have sometimes in the future any rule of law, this is what we subverting and is at stake here! And I urge you, the reader, to reflect better to what the government is trying to do, and to think that there are a number of services (including medical services, which will be shortly without the most capable professionals, who vote with their feet and live, while we will be left with incapable and incoherent representatives of profession as such a certain mayor of Bucharest), especially those staffed with learned professions, which are vital for the very functioning of the state, and are breaking loose now.

And I am so damned furious by what I see, that I think I will start shortly questioning the IMF, if this is what they want, if this is their idea about the rule of law. If it is not, perhaps the Romanian government should give it a second though, and reflect at the position of those from whom it says it takes its orders.

Reform yes, but subversion on the most ordinary degree of state capacity to implement the rule of law not! And from what I have seen, with all the self inflicted sins of the judiciary, there is a generation of bright judges, who with little support, might be able to deliver better arrangements than those we are seeing now.

Probably I should say that I never worked in the judiciary (I never imagined working for the state), I never had a relative working, I had no immediate interest in how Romania is organized or works. And the most I have is just the friendship of some young Romanian judges, whose positions I criticize sometimes. But their number is lesser anyway than the amount of friends I have in other of the learned professions of law. However in times like this and given the magnitude of silly arguments I read all over the place, I think that I am becoming a judge.
Civilization must be defended, and their fight is my fight, it could not otherwise be!