Possible target journal: Government and Opposition max 7,000 words
Bill Tupman, Anna Markovska, and potentially Olga Kabachna
Introduction
The question of the relationship between organized crime and civil society has interested Tupman for some time. In an earlier piece he argued the need for more bottom up policies against organized crime, especially in transition societies rather than the top down approach that is being increasingly imposed both globally and nationally post 9/11. [1] He delivered a paper at the British Society of Criminology, Portsmouth 2004 at which Markovskaya suggested that her data on the Ukraine could be used to test the hypotheses he was trying to develop. The result is the present paper, which is even more timely given the events surrounding the November election in the Ukraine.
Organized crime has recently played an important role in a number of states following the collapse of authoritarian regimes [Iraq, Russia] and in funding and arming opponents of existing regimes [Kosovo, Albania]. The first set of hypotheses to be tested on the Ukraine centre around the proposal that organized crime structures in transition societies can hijack roles that would normally be played by structures normally considered part of civil society. There are other situations in which organized crime plays a role in civil society and it is necessary to identify the factors that affect this process and even to analyze the degree to which these variables also affect transnational crime and its relationship to global civil society. Some reference will need be made to Gambetta’s work on the weak state and the origins of the Sicilian Mafia.[2] To what extent does the absence of global state and global civil courts make it likely that some other “criminal” mechanism will already be performing a role in contract enforcement?[3]
Organized crime can be considered a “normal” part of civil society, or an alternative to civil society, or a phenomenon indicating a failed market mechanism, among other alternatives [need a comprehensive list here, not a throwaway line!!!].[4] Organized crime is likely to be involved in the global economy and global society ahead of many other national structures and may be the only way an enterprise based in a newly emerged market economy can obtain a toehold in the global marketplace, at least in the sense that an organization has to break the rules to change the status quo.[5] A degree of organized crime may be vital as an agent of change in a society. Finally, if organized crime is part of civil society, does it play the role of outsider or insider, following Wyn Grant’s famous dichotomy?[6]
A third set of hypotheses relate to strategies for countering organized crime in transition societies. A theory and practice of countering organized crime that does not recognise that civil society and the state are less complex in the post-Communist states than in Western Europe, or the United States, is unlikely to be successful because it is more likely to strengthen the state at the expense of civil society, thus in effect restoring the authoritarianism recently overturned. The danger with an over-concentration on top-down strategies is that organized crime becomes the only mode of resistance to the State and to globalisation. The more powerful the State becomes, the more it approaches technological totalitarianism, the more it will destroy civil society in the process. The more the State, and groups of States under pressure from Washington post-9/11, seeks to regulate behaviour by passing new laws, by creating databases, by engaging in what is, in effect, electronic surveillance of the population, the more those who have mastered the technology of false identity, of false documents, of corruption and infiltration will be the people that citizens have to turn to. In effect the more the State seeks to control civil society the more organized crime will substitute itself for civil society.
It should be noted that our argument is not necessarily that the impact of criminal organizations will always be negative. Academic literature of the late 50s and early 60s argued that corruption was a positive force in economic development, although not necessarily in political development.[7] Criminal organizations can have a positive role in creating welfare and support functions for excluded groups and do not always remain wholly active in the illicit business sector.[8] A policy of legitimation can ensure that networks originally created for criminal reasons can be captured by legitimate civil society.
So the argument overall is that rebuilding civil society may turn out to be a cheaper long-term alternative to dealing with organized crime rather than a technological top down approach. A bottom up approach may be more successful. A strategy to counter criminality which fails to include provisions for strengthening civil society is doomed to fail. It is citizens, not police officers who report crime, give evidence and identify offenders. The police cannot deal with all crimes on their own. “Organized crime” in transition societies, especially post-Communist ones is quite often synonymous with illegitimate economic practices and corrupt politics. The structures of organized crime groups and the processes of organized crime practice vary dramatically from state to state depending on the strength or weakness of that state and the degree to which civil society and private entrepreneurship exist.
Civil Society
“Civil society refers to the arena of uncoerced collective action around shared interests, purposes and values. In theory, its institutional forms are distinct from those of the state, family and market, though in practice, the boundaries between state, civil society, family and market are often complex, blurred and negotiated. Civil society commonly embraces a diversity of spaces, actors and institutional forms, varying in their degree of formality, autonomy and power. Civil societies are often populated by organizations such as registered charities, development non-governmental organizations, community groups, women's organizations, faith-based organizations, professional associations, trades unions, self-help groups, social movements, business associations, coalitions and advocacy group”. [9]
There are a number of competing definitions. One determining line is whether civil society is defined as including only non profit organizations or whether profit making ie businesses can be included.[10] There are also those who would define it as only including self-organising communities of common interest.[11] Still others would apply the description to all forms of non governmental cooperation including big business.[12] Others would define it to exclude all forms of “institutionalised” human activity.[13] There are also authors who argue that civil society and the rule of law are inter-related, which is obviously relevant to the arguments presented here.[14] For the purposes of this article, civil society is taken to be the sector that mediates between the State and the individual. [15]
In recent years a particular model of the well-governed state has become increasingly dominant in the practice of many western governments and the policy recommendations of major international agencies such as the World Bank and IMF. In this model, the role of the state is to be an enabler and facilitator of the private sector, exercising the lightest of regulatory touches and exacting the minimum possible taxation. Market forces should be left as free as possible to achieve the efficient outcomes predicted by neo-classical economic theory. In some variants of the model, a robust civil society (including private enterprise involvement in the provision of social goods) is seen as fundamentally underpinning such states by undertaking various quasi-governmental roles without the accompaniment of burdensome bureaucratic structures, by ensuring an active democratic input at various levels of decision making and by providing self-regulatory processes that similarly do not require overly repressive state interference. This ‘neoliberal’ understanding of civil society is, as already stated, only one of the several ways in which the term is employed today.
Against this, there is agreement that over the past few decades the role of civil society has receded or even shrunk and political/commercial society has advanced. This may be partly as a result of the neoliberal agenda in which every organization is compelled to rely on its own internal funding mechanisms and should not be subsidized by the state. Thus most organizations take on commercial characteristics.
The well-governed state will also be characterised by those norms, institutions, processes and practices that are subsumed under the general rubric of ‘the rule of law’.[16] The global spread of this model is seen as enhancing both national and international security by promoting prosperity and stability internally as well as democratic-liberal values which, by one argument, tend to incline states towards more pacific and cooperative solutions to their inter-state rivalries.
Again, a number of developments in the last 15 years have served to cast considerable doubt upon this model, especially in Eastern Europe and Africa but also, to some extent, in those Western economies to which the model is thought to be most applicable. Milton Friedman admitted recently that his privatisation programmes were a licence to steal where they had been put into place without first establishing the rule of law.[17]
At the most general level, globalisation has reduced states’ freedom to develop autonomously in accordance with their own value preferences and independently of external forces such as global financial markets. More specifically, countries with the requisite degrees of stability, flexibility and sophistication in their governance arrangements, alongside well developed civil societies and rule of law traditions, have, in general, evolved towards that state of affairs over many decades, if not centuries. Even where such ‘rule-of-law states’, as they were termed by Mikhail Gorbachev in the 1980s[18] may be regarded as more recent creations, as in the cases of Japan and West Germany after 1945, massive economic aid, strong security guarantees and virtually total control by occupying powers was necessary to ensure that good governance became well embedded. By contrast, many contemporary states have not experienced the many years of gradual development of the various institutions and practices of good governance that are characteristic of the more successful Western states and there is virtually no prospect of the circumstances of postwar Germany and Japan being repeated. Globalisation has created new opportunities for transnational criminal organizations virtually everywhere and the specific conditions existing in transition states are especially conducive to the criminalisation of several functions normally performed by states, by markets and by civil society. Amongst the most significant aspects of these developments are:
1. Displacement of state:
Where the state is weak, it can fail to provide physical security for sectors of the population, especially where there is inter-community conflict. New and recent immigrant communities will turn to organized crime groups to bribe the police not to look too hard for illegal documentation, and will also expect protection from them from petty and organized criminals from other immigrant groups and established crime groups from the “native” population. Northern Ireland and its paramilitaries are the most notorious examples of this phenomenon, but there is evidence of its existence in Paris and other French cities. “No-go” areas for the police may be created by organized crime groups or happen by default where police patrols never visit and reaction in force is the only police tactic utilised.
Gambetta has argued that the Sicilian mafia moved in where the state could not enforce contracts or the quality of products. As a pre-existing political group with access to weapons or to brute force, they were able to sell violence as a service in the first stages of their movement towards an organized crime group. The old idea of the “state within a state” as a description of organized crime is based on the notion that the state has given up its monopoly of legitimate coercive force in certain communities and even geographical areas. Gambetta argues that the absence of societal trust is critically important.[19]
2. Displacement of market:
Gambetta’s analysis is even more relevant where markets have emerged in commodities considered illegal: drugs, arms, prostitution, counterfeit products, workers, as contract enforcement has to be by extra-legal means. Equally.where effective markets have not been able to emerge, because of a lack of convertible currency, criminal networks tend to develop to satisfy demand for consumer goods that cannot be obtained by legal means.[20]
In addition, the ‘Chicago school’ and others argue that a high proportion of “organized crime” across the borders of the EU is an inevitable consequence of the protectionist philosophy of the EU.[21] Tariffs maintain goods and services at a high price in order to maintain a high wage economy, with the aim of preventing the strengthening of extremist anti-democratic political parties[22]. But profits can be made by smuggling commodities to avoid tariffs. Cigarettes are probably the highest profit commodity that crosses EU borders, followed by alcohol, drugs and designer goods. Counterfeit products also are increasingly important. [23]
3. Displacement of civil society: The former Communist regimes of Eastern Europe in general discouraged the development of strong civil society networks and organizations, with the Party undertaking some of the normal functions of more independent civil society associations. The end of Communism created a vacuum that is being filled by criminal organizations. [Tupman 2000, Armstrong and Novak 1998] Similarly, the transfer of some governmental functions to regional and global organizations has not been accompanied by the emergence of a robust global civil society with the consequence that some civil society functions at the international level have effectively been taken over by criminal organizations. (Armstrong, 2004)
In addition, there are circumstances in which organized crime seeks to penetrate or even hijack institutions of civil society. Paedophile rings penetrated churches, social welfare services, and even police services and the courts to gain access to vulnerable children. Those who traffic in women and children have done exactly the same, not only to obtain victims, but to ensure that those victims that seek to escape can be recaptured and punished. In the case of al Qaeda, charities have been penetrated and percentages skimmed off their funds, or the funds redirected to causes pursued by al Qaeda’s leadership.
There appears to be no acceptable categorization of types of civil society, but several lists of potential components, ranging from Finer to Judge. It may not be possible yet to discuss types of civil society but it is certainly possible to relate an existing civil society to the type of regime that preceded the democratisation of the State concerned and the distortions this might be said to have produced. So again probably a little table and I think it does [1] developed, [2] post Communist, [3] post military regime, [4] post authoritarian, [5] post racist (apartheid), [6] post traditional [7] post theocratic.