2.1 Collective legal consciousness

Collective legal consciousness consists of a pattern of thinking among people about what law is and how they relate to it. In recent decades, the study of ‘legal consciousness’ has become a popular subject in socio-legal research, both in the US (Merry, Reference Merry1990; Ewick and Silbey, Reference Ewick and Silbey1998; Nielsen, Reference Nielsen2000; Silbey, Reference Silbey2005) and in Europe (Cowan, Reference Cowan2004; Hertogh, Reference Hertogh2004; Reference Hertogh2009; Harding, Reference Harding2010; Halliday and Morgan, Reference Halliday and Morgan2013). A growing number of books and papers have focused on ‘individuals’ experiences with law and legal norms, decisions about legal compliance, and … the subtle ways in which law affects the everyday lives of individuals’ (Nielsen, Reference Nielsen2000, p. 1059). However, most of these studies have been directed at studying ‘legal consciousness’ as it exists in the mind of an individual person. This is not to say that it has only been approached as a person-by-person affair. On the contrary, its status as a group phenomenon is well recognised: a particular, legal consciousness has been attributed to people who have similar social experiences within a given society, such as the American working class (Merry, Reference Merry1990) or the ‘welfare poor’ (Sarat, Reference Sarat1990), or ‘collective voices of dissent’ of radical environmental activists, studied by Halliday and Morgan (Reference Halliday and Morgan2013). However, this paper explores collective approaches to broader society.

All previous studies of legal consciousness have concluded that ‘the way in which people perceive law and legality is a multilayered and dynamic construct, responsive to their surrounding social situation’ (Kurkchiyan, Reference Kurkchiyan2011, p. 372). Building on those older findings, we take our analysis one step further. If legal consciousness is shaped by the societal context in which people live, then it is logical to ask whether social and political differences between societies will cause differences in their legal consciousness. If that is so, then, by taking a comparative approach, we should be able to uncover the differences of meaning that people attach to law in one country as distinct from another.

To analyse this in the three EU countries under study, we examine dominant perceptions of law and consider how these perceptions are related to the specific features of the social environment. Earlier research has suggested that, for our understanding of a public's collective legal consciousness, we should also take into account their perceptions of the political culture (Kurkchiyan, Reference Kurkchiyan2011, p. 383). In this paper, we will probe into this more closely. For example, do people suppose that they can influence the law-making process? Do they feel that the law-makers are accountable to them? Do they believe that they have at least some degree of control over the laws imposed on them? What are the mass public perceptions of politics? Do they trust their parliament and their government, and how are those views related to their wider perceptions of law? Evidence was collected on all these issues and more, and we analyse the resulting data on two levels: the domestic and European – first, what are people's perceptions of law and politics in their own country and, second, what are their perceptions of EU law and politics? The use of a comparative research design allows us to contrast the respective interpretations of law and politics in different societies. It enables us to identify what is unique about the way in which people construct concepts of law in their own social setting.

3.1 UK

In any society, people's views are not completely uniform on any topic. However, a careful reading of the transcripts of our focus groups, interviews and survey data demonstrates that each society undoubtedly has a dominant vision in the form of a shared understanding about the most important issues faced by the population. In the UK, it is apparent that both British law and its supporting legal infrastructure are seen as reliable most of the time; they provide security and coordinate social interaction:

Other respondents compared the UK to other countries, usually with a feeling of superiority. There was common agreement, with statements such as ‘A lot of countries I've been to, they shake my hand and say: you've got the best legal system in the world and we love it!’ (UK, 14).

The general sense of satisfaction with the law of the land was not only felt by ordinary people, but was also evident in interviews with lawyers:

The survey data support these inferences from the focus groups and the interviews. In the UK, 66.3 per cent of respondents feel that, on the whole, the law is fair and 58.5 per cent believe that the law helps ordinary people. British judges also enjoy the trust of the people, being seen as central to the legal system. Moreover, 79.3 per cent describe their overall attitude towards judges as (very) positive and 71.6 per cent feel that judges are fair in their judgments.

However, what was remarkable is that all our conversations about law tended to slide from law into politics. This happened consistently and easily. Both in the focus groups and in the interviews, discussions about British law (and legal culture) were closely linked with discussions about British politics (and political culture). Some respondents were very cynical indeed about day-to-day politics. Criticism of all the mainstream political parties was common, such as ‘What's the difference between Labour, Conservative and Lib Dem? Nothing’ (UK, 6). In many conversations, people expressed their disappointment, not just in individual politicians or in national leadership, but even in the political process as a whole. Comments such as ‘What they're trying to do now is outlaw happy hours, and I can't see why the law is doing that’ (UK, 5) or ‘It's supposed to be Prime Minister's question time. He never answers a question’ (UK, 13) typified such attitudes.

However, in the British case, it is necessary to draw a distinction between disappointment with politics and confidence in the foundational principles of political order. Despite the shortage of respect for politicians, people still seem to have a deep-rooted faith in the overall parliamentary system. It is their confidence in the system that made people believe that:

It should be stressed that the belief among British citizens that their voice has power and can make a difference was neither universal nor absolute. A few of the focus group participants were sceptical and questioned whether people do, in practice, have an influence on politics. The controversial introduction of the poll tax and taking the country to war in Iraq, despite mass protests against what was perceived to be the will of the people, were the two examples most frequently cited. However, such sceptical views were usually challenged by other participants:

Overall, despite frustrations and disengagement from the political process, people felt that they had a variety of channels through which they can effectively be part of the political process if they wish to:

These impressions were supported by the survey evidence. For example, when asked what you should do if parliament passed a law that some people felt was really unfair and unjust, a large majority of respondents in the UK (74.3 per cent) felt that they should protest against the law (e.g. by taking it to their local MP). Overall, almost seven out of ten people in the UK (66.3 per cent) felt that, on the whole, the law is fair and that the law generally helps ordinary people (58.5 per cent); 62.2 per cent agreed (strongly) that the government and parliament can be trusted to draft clear and effective laws. Moreover, people felt that they can influence the law-making process and that they have some level of control over law imposed on them.

3.2 Poland

The narratives of the discussions in Poland suggested different perceptions about law. The Polish discussants presented the legal domain as a risky social space that should be avoided if at all possible. For them, it was an arena in which problems are generated, rather than solved; law is a trouble-making force and the legal institution is unreliable and untrustworthy. This is how some participants in the Polish focus group discussions spoke about law:

However, the survey data offset slightly the hostile perception of the legal institution conveyed by the participants of focus groups. It shows that, although an inimical image of law is indeed dominant in Poland, and four out of ten people (39.7 per cent) feel that the law makes problems for ordinary people, there still remain three out of ten people (32.4 per cent) who think that, on the whole, the law is fair.

One would expect that legal professionals would have an urge to defend their role and would be inclined to project a more positive image of the institution. Yet, according to our interviews, their perceptions were not very different from those shared by the majority of lay people, although their reasoning was different:

In Poland, we found one pronounced similarity to the findings in England. In both societies, discourses on legal issues were blended so closely with political issues that it became problematic to distinguish between them even for analytical purposes. To explain and justify their views on law and the Polish legal system, people frequently referred to what is happing in the political sphere. Equally, comments on politics in the focus groups would quickly merge with issues of the quality of law, law-making, legality and justice. This link was explicitly acknowledged by the participants themselves:

Transcripts of the discussions in Poland indicate that public trust in politicians and government is in deficit. People are sceptical, both about the political establishment and the way their country is run. Those views are exemplified by comments such as ‘I do not trust either the Government or Parliament when it comes to law-making, since this process in Poland is completely incompetent, ineffective, bungled and trashy’ (PL, 2).

However, it was apparent that the mass frustration in Poland went beyond disillusionment with whoever happened to be in government or the legislature at any particular time. Distrust went deep into the roots of the political system. People did not believe that ways were open to them to influence political decisions or that there were means to make law-makers accountable: ‘People should have the opportunity to gather together with petitions and motions, to fix that law. But people, as the society, do not have enough access to whatever the government is doing’ (PL, 2).

The public's low level of trust in political institutions in Poland is sharply exposed by the survey data. For example, 70.3 per cent of the population thought that both government and parliament are too favourable towards the rich and powerful. Also, many of them (62.6 per cent) believed that politicians habitually draft laws for their own personal advantage, rather than for the good of the country. Even more importantly, many people believed that lack of respect for law is strongest within the political establishment: 70 per cent of the respondents thought that members of parliament are less law-abiding than ordinary people, and more than half (55.6 per cent) thought that, unlike ordinary people, politicians would feel powerful and self-confident while they are in the act of breaking the law and that there is no mechanism in the political machinery to make the powerful accountable.

3.3 Bulgaria

For ordinary people in Bulgaria, the perception that there was disconnect between law and the everyday life of ordinary people was even more pronounced than in Poland. Law was seen as a powerful instrument in the hands of the rich and powerful. That theme was repeatedly asserted in both interviews and focus groups:

The Bulgarian public's dominant view of the legal system was that:

Furthermore, ‘some [judges] participate in the crimes along with the criminals. … The only difference is they are dressed in gowns’ (BG, 2). The shared antipathy in Bulgaria in relation to the legal domain can be summarised in a statement made by a focus group participant: ‘You put your hand on the book and make an oath to tell the truth, and nothing but the truth, and then the truth dissolves’ (BG, 9).

To put this view into a broader social context by reference to survey data, 74 per cent of respondents felt that judges in Bulgaria pay too much attention to whether the government will be pleased or displeased by their rulings in court; and only 37.6 per cent feel that judges in Bulgaria are fair in their judgments. In Bulgaria, nearly five out of ten people (48 per cent) feel that the law reflects the power of the state to control people.

The usual way in Bulgaria to explain their apparent legal nihilism was to refer to politics and politicians. These are some illustrations of how their perception of law is influenced by their perception of politics (and vice versa):

Overall, a significant majority of respondents (77 per cent) thought of members of parliament as less law-abiding than ordinary people. A large majority (75.9 per cent) believed that members of both government and parliament in Bulgaria tend to draft laws for their own personal advantage, rather than for the good of the country. Also, most of them (80.3 per cent) feel that government and parliament as a whole are too favourable towards the rich and powerful. The entire political and legal system in Bulgaria was perceived as a self-reproducing structure of corruption. For example, 78.5 per cent of those surveyed said that the members of both the government and the parliament in Bulgaria are willing to take bribes. Among focus group participants, there was a strong feeling of powerlessness and alienation from what was happening in the country:

4.1 UK

In the UK, almost half of the respondents who participated in the survey (43.6 per cent) felt that EU laws had caused unnecessary problems for ordinary people. They imposed rules and regulations that were considered to be useless or even laughable, and not suited to the British context. This sentiment was expressed in a variety of forms, but always along the same lines:

Evidently, there was a clear distinction in people's minds between ‘our’ law and law that had originated ‘somewhere else’, regardless of its actual content or quality. As discussed in the previous section, most people in the UK seemed fairly positive about domestic law and their own legal system. Consequently, they did not feel that the UK could learn much from the laws of the EU or the laws of other countries. The dominant view was that ‘it is the other way round. They should look at ours that has been set in stone and has worked for years and years’ (UK, 12). The very idea that there might be good EU laws that work successfully across many countries did not make sense to many people. Two-thirds of the UK respondents (67.8 per cent) thought that their country should have different laws, applied in ways that better suit their country and people. As a participant of a focus group put it: ‘The problem with Europe is that it is so big and covers so many different cultures that laws have to be a catch-all to cover everybody's culture and it doesn't usually fit’ (UK, 12).

The same distinction between ‘our’ law, which is rational and should be treated as a social good, and ‘their’ law, which is unfit, not thought through and generally useless if not damaging in the UK context, was also shared by British legal professionals. In our interviews, they articulated this notion clearly:

In the same way as the patterned responses that we noted in the section on the domestic context, these conversations about EU law were shaped by conversations about EU politics. Having dismissed EU law and the role that it might play in their own country, most people in the UK went on to express their distrust of the political system of the EU and what they considered to be its unrepresentative governing institutions. They generally did not believe that they had, or ever could have, any influence on the law-making process in Brussels; and they did not feel that they exert control over the laws imposed on them:

4.2 Poland

In Poland, people generally welcomed EU laws and regulations. For example, 64.1 per cent felt that EU laws help to protect ordinary people from bad laws that might be made by their own government, and shared the view that ‘the EU has brought a lot of good things to Poland’ (PL, i3). Both in the focus group discussions and in the interviews with legal professionals, people argued that the EU has been important for the development of Poland:

The goal of progressively harmonising laws all the way across the EU was supported by lay people and legal professionals alike. The idea that their country should broadly have the same laws as the rest of Europe was backed by the majority. In a widely supported view, one lawyer remarked that ‘a unified legal system in all European countries would facilitate the effective settlement of disputes and also the regulation of ordinary citizens’ lives’ (PL, i21).

This image of the desirability of potent EU law was well supported by equally positive views about the EU political process. In Poland, most people (88.8 per cent) felt that their country had a lot to learn from other countries and from European and other international organisations about how to write good laws. Most of them (83.9 per cent) also felt that Poland could learn from organisations like the EU about the way that political leaders should themselves respect the law. It was believed that the EU (and international law in general) could promote the legal and political reform that Poland needed in order to stamp out corruption: ‘In some cases international law should force our government to display proper behaviour’ (PL, 1).

What was remarkable in the narratives of the discussions and interviews was the extent to which people generally felt that they had a say in the European law-making process and that EU law possessed a high degree of legitimacy, which had been obtained through a democratic process. They did not think that EU laws were being imposed on them against their will. Instead, the typical argument was that:

4.3 Bulgaria

Just as in Poland, most people in Bulgaria felt that EU laws and regulations were beneficial to them. It was believed that:

For the Bulgarian public, having Bulgarian law integrated with EU law and even subordinated to it would only serve to strengthen legality in the country, making everyday life easier and generally serving to promote social progress. Both in the focus groups and in the interviews, participants gave examples that illustrate how EU law had already helped them in their daily lives:

Overall, 63.6 per cent felt that EU laws help to protect ordinary people from bad laws that might be made by their own government. Also, 55.5 per cent thought that Bulgaria should broadly have the same laws and law enforcement as the rest of Europe.

These positive images of the EU laws corresponded with equally positive views about the performance of the EU's governing institutions. A large majority (83.3 per cent) felt that Bulgaria had a lot to learn from the EU (and from other international organisations too) on matters of law and legality. In the focus group discussions, people explained that the EU membership would promote important legal and political reforms in Bulgaria and impose control over corrupt politicians at home. As one participant put it, ‘they are all the same gang in the parliament [in Bulgaria]. I believe there should be some other type of control’. This optimistic view was shared by 79.2 per cent of Bulgarian survey respondents, who expressed the hope that pressure from the EU might reduce the level of corruption in their country.

Just as in the pro-EU perceptions described so forcefully in the Polish focus groups, Bulgarians believed that supremacy of the EU law over domestic law was fully legitimised by the mass vote that had formalised agreement to EU membership by the majority of the people. They shared the trust that the Poles had shown in the referendum as a political device, viewing it as a powerful tool in the democratic process. It was emotionally defended in one focus group: ‘Referendums! People's control of government and parliament through referendums and control from the EU’ (BG, 3).

5.1 Legal consciousness is closely connected to perceptions of the political system

First, the study suggests that people's legal ideas and expectations are not isolated values, but instead are strongly influenced by the local context. More particularly, the focus group discussions and the interviews demonstrate that the public's perceptions of law are moulded by political culture. This is not only true when people express how they see domestic law and the national political system, but also when the discussion shifts to EU law and the EU political system.

The survey data support these inferences from the focus groups and the interviews. It shows a strong correlation between indicators of legal and political cultures across countries in relation to both domestic and European law. Expressions of legal nihilism usually come together with political cynicism, and vice versa. Perceptions of law as a positive social good, which can be expected to deliver justice, tend to co-exist with trust in the political system. For example, among people who feel that the law in their country generally makes problems for people like themselves, a large majority (67.3 per cent in UK; 81 per cent in Poland; 91.1 per cent in Bulgaria) also agree (strongly) that their government and parliament draft laws for their own personal advantage or business interests, rather than for the good of the country. Conversely, only a small minority of those with dismissive views of law as unhelpful would admit to a positive expectation about the performance of the political rulers (32.7 per cent in UK, 19 per cent in Poland, 8.9 per cent in Bulgaria). The same pattern is repeated in relation to EU law: among people who feel that EU standards, laws or regulations cause problems rather than providing benefits for ordinary people; a majority (67.4 per cent in UK; 70 per cent in Poland, 77.6 per cent in Bulgaria) would also prefer that their country should withdraw from the EU.

Inferences from our focus group discussions suggest that there are at least three different ways in which conversations about law are connected to conversations about politics. First, the political system is considered to be an important source of the law. For this reason, people's perceptions of law are shaped by their level of trust in the political authorities that are regarded as the source of law, generally parliaments and governments. Second, an effective political system is considered to be an important condition for legal reform. This means that the image of law held by ordinary citizens is influenced by their degree of confidence in the political system more broadly and not just by their attitudes towards whoever currently forms the ruling elite. Finally, the image of law is shaped by whether or not ordinary people believe that popular involvement in the law-making process is a genuine possibility and not mere empty propaganda. Whether people feel that they have some level of control over the law depends on their sense of the responsiveness of the political system.

In short, all three elements suggest that ‘legal consciousness’ is closely linked to ‘political consciousness’. Perceptions of law are not just shaped by first-hand personal experience of law or the relevance of law to personal interests, but also by a broader interpretation of the political process, and – even more so – by the degree of trust that they have in the foundations of their political system.

5.2 From individual to collective legal consciousness

The fact that people's perceptions of law are shaped by their social environment also highlights a second feature of legal consciousness. Most previous studies examine legal consciousness from an individualistic perspective, which is then generalised for social groups within society, such as socio-economic classes. By contrast, our use of a comparative approach gives a description of views that prevail across society. It examines the dominant legal consciousness prevailing among the populations of Poland, Bulgaria and the English part of the UK, respectively. Considering that, in all three countries, perceptions of law are strongly defined by perceptions of the political process and, considering also the fact that these people share the same national political system, our study suggests that people in each country develop their own distinctive pattern of collective legal consciousness.

5.3 Inward and outward legal consciousness

Legal consciousness is not a monolithic vision of ‘the’ law in general, however, as it is sometimes presented. It has a multidimensional character and what is true for one law may not be true for other laws. Following Engel's (Reference Engel, Garth and Sarat1998, p. 140) observation that ‘different substantive areas of law are associated with different perceptions, understandings, and behaviors’, our study suggests that collective legal consciousness is also layered according to the source with which it is associated. In particular, we found important differences between ‘inward’ legal consciousness (of domestic law or ‘our’ law) and outward’ legal consciousness (in our case, of EU law or ‘their’ law). To describe the differences, it is helpful to adopt a typology suggested by Ewick and Silbey (Reference Ewick and Silbey1998) of how people relate to law: subjects can be ‘before the law’, impressed by its majesty and convinced by its legitimacy; ‘with the law’, utilising it instrumentally and generally understanding it as a game; or ‘against the law’, cynical about its legitimacy and distrustful of its implementation. In addition, Halliday and Morgan (Reference Halliday and Morgan2013) point to cases in which people can feel strongly about an abstract concept of legitimacy that in their mind stands above the actual law of the land that has been produced by the state. When we apply this typology to our data, we see some important differences in what law means to people at a societal level.

Undoubtedly, all these ways to relate to law co-exist in all societies, creating some tension at the level of collective, societal, legal consciousness. However, one can identify a dominant way of thinking for each case. In the UK, people's perceptions of domestic law can be characterised as predominantly ‘before the law’, whereas their perception of EU law is best described as ‘against the law’. This is the mirror image of the other two countries. While, in Poland and Bulgaria, people's perceptions of domestic law may be characterised as ‘against the law’, their perception of EU law is best described as ‘before the law’. As was suggested earlier in this paper, these differences cannot be fully explained as different ideas and expectations of the law, alone, but they can be related to the differences in the general perceptions of the political systems, domestic and European.